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Peaceful Transition and Retrospective Justice: Some Reservations

Published online by Cambridge University Press:  28 September 2012

Brad R. Roth
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Abstract

Although retribution for past human rights violations has its place in post-conflict processes of transition and reconciliation, there are many present and foreseeable circumstances in which the case for immunity, amnesty, or sheer forbearance is significantly stronger than Juan E. Méndez' approach to this question can admit.

Disagreement about justice is an ineradicable part of political life and a leading cause of violent conflict. Reconciliation cannot always presuppose or await a shared moral understanding; frequently enough, it requires an agreement to disagree, even about fundamental principles – at least with respect to their retrospective application. Where the parties to violent conflict have seen fit to set aside issues of retrospective justice in the service of peace and reconciliation, outsiders, who do not bear the costs of conflict and instability, should second-guess that decision only with the greatest reluctance. They should not look to international human rights standards and mechanisms for a universal solution.

Type
Articles
Information
Ethics & International Affairs , Volume 15 , Issue 1 , March 2001 , pp. 45 - 50
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2001

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References

1 See Shue, Henry, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton: Princeton University Press, 1980), pp. 35–64Google Scholar, for the insight that human rights entail correlative duties of protection and assistance, as well as nondeprivation.

2 Beiner, Ronald explores the consequences of this reality for “rights talk” in What's the Matter with Liberalism (Berkeley: University of California Press, 1992), pp. 80–97Google Scholar.

3 Even the calculated bombing of an inhabited Serb television studio during our latest “humanitarian” armed action has, remarkably, failed to occasion much introspection—even from Human Rights Watch. See Human Rights Watch, Civilian Deaths in the NATO Air Campaign (February 2000), available at http://www.hrw.org/reports/2000/nato (“In its investigation Human Rights Watch has found no evidence of war crimes” despite finding that the purpose of “the bombing of state Serb Radio and Television headquarters in Belgrade on April 23. seems to have been more psychological harassment of the civilian population than to obtain direct military effect.”)Google Scholar

4 Méndez goes so far as to state that “reconciliation between previously warring factions should not take place at the expense of the victims' right to see justice done.” He does not oppose “forgiveness,” but appears to demand, at minimum, manifestations of contrition as the prerequisite. Even that limited demand is frequently a deal breakerGoogle Scholar.

5 Instructive on this point is Madeline Morris, “Universal Jurisdiction in a Divided World,” New England Law Review 35 (forthcoming 2001)Google Scholar.

6 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, General Assembly Resolution 39/46 (1984), entered into force June 26, 1987Google Scholar.