Transitional justice and the rule of law: lessons from the field.

• Author: Andersen, Elizabeth

Thank you very much for that kind introduction. It's a great treat to be back here at the Cox Center and Case Western University Law School, where I've had the pleasure of participating in a number of wonderful conferences on international legal issues over the years.

I'm honored to receive the center's Humanitarian Award, but I must admit that my experience and insights into international humanitarian issues have been gained on the backs of others, colleagues at the ICTY, Human Rights Watch, ABA CEELI and now ABA ROLI, who are on the front lines of the development and implementation of international humanitarian norms. I am grateful for the opportunities I've had to be a part of that work and to learn from them. Let me hasten to add, however, that the thoughts I'm going to share with you today are my own, I suspect some of my colleagues, present or former, would disagree vehemently with them. And I trust it goes without saying that I certainly would not pretend to speak on behalf of the nearly 400,000 lawyers of the ABA! Pity the person who endeavors to do so!

1. THE RELATIONSHIP BETWEEN TRANSITIONAL JUSTICE AND THE RULE OF LAW, AS CONCEPTS AND AREAS OF PRACTICE.

   I'd like to focus my remarks today on the relationship between transitional justice and rule of law, as concepts, and as fields of scholarship and practice; to propose a re-conceptualization of transitional justice in rule of law terms; and draw some lessons for the rule of law field about what such a reconceptualization means for how we do transitional justice.

   Over the past two decades, these two fields--transitional justice and rule of law development--have advanced significantly in both theory and practice. Transitional justice has seen the development of numerous models and approaches and come to encompass everything from traditional criminal procedures in the form of international courts and tribunals and hybrid and special courts to expansive programs of lustration, reparation, truth and reconciliation, and commemoration. (2)

   Over the same period, the modern era of rule of law development, launched in the aftermath of the fall of the Berlin Wall, has similarly-yielded a wide array of tools and an increasingly sophisticated appreciation of the levers of change in this complex arena, and its importance to achieving other development and international policy goals. There's some healthy academic debate about the definition of the rule of law, (3) but for my purposes today and for reasons that will become apparent, I would like to embrace an expansive version, encompassing both the laws, institutions, and procedures that ensure transparent, effective and accountable governance and the substantive human rights norms that ensure that that governance is accessible, fair and equitable. Rule of law development programs include ambitious legislative and institutional reform and capacity building efforts, court administration and automation initiatives, and judicial and prosecutorial training, all aimed at expanding the "supply" side of justice, as well as civil society support, human rights litigation and advocacy, public education, know-your-rights media campaigns, and the like, aimed at building "demand" for justice. (4)

   Billions of dollars are spent on transitional justice and rule of law each year, with significant potential synergies between these fields. In the early 1990s, when transitional justice meant a court in The Hague and rule of law development assistance referred to a training program in the host country, there seemed little relationship between the two, other than perhaps a competition for scarce foreign assistance resources. (5) Today, however, transitional justice focuses on building national prosecutorial and judicial capacity--indeed, the field prioritizes these solutions under the International Criminal Court's complementarity regime--putting it squarely in the rule of law development business. And as both the rule of law and transitional justice fields embrace rights-based approaches, seek to empower victims, and devise "bottom-up" solutions, these efforts are--or should be--closely intertwined.

   But for the most part, these are considered two distinct fields, in both theory and practice. The reasons for this disconnect are multifold, including the fact that the two fields stem from traditionally distinct fields of scholarship and practice--transitional justice being the realm of lawyers, especially international human rights lawyers; and rule of law development being the province of a mix of development experts, political scientists, and comparative law experts. And in more practical terms on the ground, there are often real or perceived conflicts over prioritization, sequencing, and resources for transitional justice and rule of law initiatives.

   In an aside in a 2013 article, leading scholars of transitional justice, Kathryn Sikkink and Hun Joon Kim, summarized the prevailing view as follows:

   "Although better quality rule of law is neither a necessary nor a sufficient condition for transitional justice, developments in the rule of law have contributed to transitional justice, and the success of some transitional justice measures may in turn enhance the rule of law." (6)

   So, to paraphrase, there's a loose but not essential association between the two. We pursue justice, and we pursue rule of law, and sometimes, maybe coincidentally, if we're really good or lucky, they reinforce one another.

   Really?! If that's the case, and I fear that, more often than not, it is, then there's something seriously wrong with the way we're thinking and doing both transitional justice and rule of law. What, after all, are we transitioning to, with these justice efforts, if not rule of law? Shouldn't we be doing that consciously and intentionally?

   I'm with UN Secretary-General Ban Ki-Moon, who concluded in his 2011 Report on "The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies," that "[t]hough linkages between transitional justice processes and institutional capacity-building have been strengthened ... greater commitments to integrate our approaches are required going forward." (7)

2. THE PURPOSE OF TRANSITIONAL JUSTICE: RE-ESTABLISHING THE RULE OF LAW

   Indeed, the idea that I'd like to advance here today is that we should conceive of transitional justice as a rule of law project, that is, we should design, sequence, and pursue transitional justice to advance the rule of law. Rather than justice as the principal goal, in this conception, it is a means to an end, the rule of law. Or, to put it another way, I would suggest an expansive understanding of transitional justice in which the re-establishment of rule of law is justice.

   I appreciate that--coming from the director of the Rule of Law Initiative--this may sound self-serving, like a case of where you sit is where you stand. But, I think that re-conceptualizing transitional justice in terms of its rule of law impacts makes moral and ethical sense and brings welcome clarity of purpose to the transitional justice field. Let me explain why.

   One of the challenges encountered in any transitional justice effort is identifying and clarifying its goals and designing processes and projects that can fulfil those goals. In the politically charged and complex environments...