Questions of transitional justice arise in light of the unprecedented crisis facing an already fragile democracy in our country.
As a backdrop for this post, I’m assuming that “We should not delude ourselves that Biden’s election spells the end of the contemporary crisis of American democracy. That crisis results from forces much larger than Trump, and to which his own political success is attributable. It stems from the convergence, for the first time in American history, of all four of threats that endanger democracy the world over: political polarization; conflict over who belongs as a full member of the political community; rising economic inequality; and the concentration of power in the nation’s top leader. History reveals that American democracy, time and again, has proved to be fragile in the face of these threats.” From an op-ed in the LA Times by Suzanne Mettler and Robert C. Lieberman)
First, an introduction to transitional justice:
“Transitional justice refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response. Transitional justice is rooted in accountability and redress for victims. It recognizes their dignity as citizens and as human beings. Ignoring massive abuses is an easy way out but it destroys the values on which any decent society can be built. Transitional justice asks the most difficult questions imaginable about law and politics. By putting victims and their dignity first, it signals the way forward for a renewed commitment to make sure ordinary citizens are safe in their own countries – safe from the abuses of their own authorities and effectively protected from violations by others.
Mass atrocities and systematic abuses devastate societies and their legacy is likely to make conditions of the country fragile: Political and legal institutions like parliament, the judiciary, the police and the prosecution service may be weak, unstable, politicized, and under-resourced. The violations themselves will have severely damaged whatever confidence might have existed in the state to guarantee the rights and safety of citizens. And communities will often have been ripped asunder in the process and social or political organizations greatly weakened. Finding legitimate responses to massive violations under these real constraints of scale and societal fragility is what defines transitional justice and distinguishes it from human rights promotion and defense in general.”
* * *
While the transition from a Trump administration to a Biden one should not, strictly and generally speaking, raise pressing questions of transitional justice as that term has been understood in international and domestic law, including international criminal law (we often think of this, for example, in terms of a transition from an authoritarian or simply brutal, anti-democratic regime to a democratic one), there are some aspects of this particular Presidential transition that might or should prompt us to consider subject matter intrinsic to questions associated with transitional justice. Consider, for instance, the Trump administration’s colossal and inexcusable failure with regard to the Covid-19 pandemic, including the de facto “herd immunity” policy that has resulted in widespread suffering and deaths, many of which were unavoidable, that is, unnecessary and thus inexcusable (indeed, there are individuals who are criminally culpable in this regard). Obdurate systematic racism, militarized policing, voter suppression, extreme economic inequality, a morbidly obese defense budget, a belated and feeble response to global warming, an antiquated social and economic infrastructure which is environmentally unsustainable, among other conspicuous problems, raise urgent social and transitional justice issues as evidenced in the “aims” of transitional justice outlined by the International Center for Transitional Justice:
“The aims of transitional justice will vary depending on the context but these features are constant: the recognition of the dignity of individuals, the redress and acknowledgment of violations, and the aim to prevent them from happening again. Complementary aims may include:
- Establishing accountable institutions and restoring confidence in them
- Making access to justice a reality for the most vulnerable in society in the aftermath of violations
- Ensuring that women and marginalized groups play an effective role in the pursuit of a just society
- Respect for the rule of law
- Facilitating peace processes and fostering durable resolution of conflicts
- Establishing a basis to address the underlying causes of conflict and marginalization
- Advancing the cause of reconciliation”
These aims are, I believe, pertinent to addressing the multi-faceted threats to what is left of democracy in the U.S.
Finally, consider these comments from Jane Mayer’s interview on Democracy Now! that broach transitional justice topics, in particular in the final paragraph:
“Well, so, as we all know, there is a very broad pardon power in the Constitution that the president has. He can issue pardons almost without any kind of guidelines to whomever he wishes. And one of the questions that people, legal experts have, and historians, watching all of this, this incredible spectacle, is whether Trump might try to pardon himself. It has not been done before in our history. An earlier corrupt president, Richard Nixon, thought about it and thought that he had the power to do it. The Justice Department at the time looked into it. And there’s a sort of relatively flimsy, quick opinion that suggests that the Justice Department found at that time that they didn’t think it could be done, because it’s just illogical, as the paper says. The opinion just says no man can stand in judgment of his own trial. But it’s never really been tested before. And a number of experts who I interview suggest that they think it’s possible that Trump could try to pardon himself, and might even get away with it if he did. But what’s interesting is that the pardon power he has is to be able to pardon himself against federal charges. And that might be able to wipe the slate clean for himself of many, many possible criminal charges, but it would not reach the New York state charges that he may be facing from the DA’s Office or from the Attorney General’s Office in New York, because those are state charges. So he might still have to go ahead with some kind of process there, and he wouldn’t be able to get himself off the hook.
What people are suggesting is it’s possible that maybe there would be some sort of global settlement offered him on the way out the door, that in exchange for some kind of concession that he might give saying that he had — he was guilty or a fine or something like that, that there might be some kind of, you know, just general settlement. It’s a very ticklish, difficult problem of what to do with a president. We don’t want to look like a new president prosecutes the former president. It sort of has a kind of a tin-pot dictatorship feel to it. At the same time, there’s a sense that you need to hold everybody accountable, and nobody is above the law, and that includes presidents of the United States. So, this is really a complicated, fraught subject. And, anyway, this is all what’s going on in terms of why, again, Trump may be fighting so hard not to leave that White House.”
I’m hoping to find or make the time to post in more detail about this way of looking at the early post-Trump era in our country through the lens of transitional justice, although I’d be happy to learn of any thoughts you might have on this in the meantime.
Comments