This special issue focuses on international justice. It is only in the past three decades that a sustained effort has been made to develop analyses of international justice drawing upon the traditional concerns of domestic justice. Topics such as what comprises a ‘just war’, a just international order, international social justice and transitional justice have now been placed at the forefront of analyses of international justice. I will briefly describe below the international context from which the broad concept of international justice has arisen.
The international order has, in effect, been built by those dominant nations which have sought to exercise control over a unified world. States act in such a way as to preserve the international order, thus serving to maintain and enhance their security and prosperity. Therefore ‘international peace’ can act as a slogan by which to keep peace for those who feel strong enough to impose this order on others. The twin concepts of international peace and international order, however, have been used so freely for the purpose of justifying the ascendancy of dominant states that they have fallen into conceptual disrepute with the dissatisfied states. Consequently, these dissatisfied states are challenging the international order of dominant states in the name of conducting an act of ‘just intervention’ or a ‘just war’.
International relations increasingly resemble the relations and characteristics of domestic society. Yet, the tradition of international political theory has been virtually silent on the matter of international distributive justice. However, the widening gap between rich and poor countries caused by the pursuit of uncoordinated and uncontrolled growth policies by national governments, has led to increasing demands from the least developed and developing countries for more equitable terms of participation and engagement in global politics and economics. Notably, these countries have started to challenge the international economic order in the name of international social justice.
At the end of the 20th century, a new type of international justice, transitional justice, came to be pursued at a time of significant global transition, beginning with the Latin American transitions from dictatorship, and followed by the transitions seen in the post-communist states in the 1990s. Transitional justice comprises the full range of processes and mechanisms associated with international society’s attempt to come to terms with a legacy of large-scale historical abuses in order to ensure accountability, serve justice, and achieve reconciliation. Transitional justice is also frequently found in the aftermath of violent conflict and following a sustainable peace-building phase. Finally, the issue of intervention in the internal affairs of a sovereign state has increasingly come to be the subject of discussion as the relatively new concept of ‘responsibility to protect’ (R2P) gains currency in international relations discourse.
This special issue is an attempt to explore three aspects of international justice. The first two articles deal with the concepts of legitimacy and justice in the context of international intervention, the next five articles with transitional justice, and the last two contributions examine the relatively new notion of the responsibility to protect.
The question of whether intervention in another state is ever justified is one of the most important and fundamental questions that IR (international relations) scholars and foreign policy practitioners have attempted to answer. Today, an increasing number of people seem to admit that morally scandalous acts, such as ethnic cleansing or systematic massacre, may justify humanitarian interventions. However, intervention itself is nothing new; it has long been part of international relations. Many previous interventions have been carried out in the name of civilization, humanity, or the international community.
This paper focuses on American interventionism in the Central America and Caribbean states in the early twentieth century and its consequences—specifically, the Good Neighbor policy of the 1930’s; it analyzes American justification for its interventions and the reactions of Latin American countries to them. Although realism argues that the content of justice is defined unilaterally by the great power, this paper shows that this view is not necessarily the case. Of course, it is true that the United States intervened mainly in the pursuit of its self-interest and sometimes out of a sense of self-righteous legitimacy. However, these motives were only one aspect of U.S. interventionism.
Although at that time neither the use of force nor intervention had been outlawed or completely prohibited, the United States attempted to differentiate between “just” and “unjust” interventions in the social context of the Americas. For this reason, the United States was very eager to arrive at bilateral agreements that granted it “the right to intervene” in another contracting party and to advocate the Roosevelt Corollary, which sanctioned such involvements, as opposed to those of the European states.
This paper especially emphasizes the role of the Latin American countries in the legitimation processes as a “constituency” or “audience” that recognized and challenged the legitimacy of interventions. In other words, it highlights the dynamics of “social interaction” between the United States and Latin America over the validity of interventions in the first third of the twentieth century. Looking at this social interaction, we can clearly understand the paradox of U.S. interventionism: while the mechanism to “justify” intervention developed until the second decade of the century, the mechanism—the multilateral treaty—to “condemn” or “outlaw” (any) intervention was established in the Americas in 1930s as a result of social interaction. Thus, “non-intervention” became the legitimate and just policy of the region. This paper argues that this paradox would not have arisen without the social interaction among the states of the western hemisphere.
We are now in the process of redefining the concept of ‘multilateralism’ in the wake of significant criticism leveled at recent unilateral activities by the United States, which led to two long and bloody wars in the Middle East at the beginning of the 21st century—the regional and global consequences of which are still being played out today.
Despite these high-profile cases of US-led unilateralism, multilateralism has never been entirely absent from the discourse, because even the sole hegemonic power has always made an attempt to harness a multilateral framework, such as the United Nations which is a quasi universal organization, the North Atlantic Treaty Organization (NATO) where the United States exercises indispensable leadership, or ‘coalitions of the willing’, which operates on a formal multilateral framework principle. Against this context, therefore, analysis cannot be framed against a simple formula of unilateralism versus multilateralism, but more importantly, how we interpret the ambiguous nature of multilateralism and what frameworks and forms of multilateralism have come to be regarded as legitimate.
In general, multilateralism is deemed more legitimate than unilateralism and bilateralism. But the correlation between multilateralism and legitimacy still remains unclear and unresolved, even if we tend to view it as natural that multilateralism and legitimacy are connected in some way. Based on this premise, therefore, fundamental questions relating to multilateralism and legitimacy will be examined in this article. For instance, why do we see multilateralism as more legitimate than unilateralism and bilateralism? Why have various types of multilateralism emerged in our era? What frameworks and forms of multilateralism are regarded as more legitimate than others? Upon what grounds do we judge them as more legitimate? And what kinds of problems occur when we legitimatize a particular type of multilateralism over other formats?
These questions are crucial issues that are still undergoing important debate in political and policymaking circles. The purpose of this paper, therefore, is to make a contribution to this debate by examining the issue of legitimacy in multilateralism in a comprehensive way. The paper will analyze the various characteristics of contemporary multilateralism and examine its inherently “ambiguous” nature through the lens of legitimacy, which is in itself a “slippery and complex” political concept because it reflects a range of existing tensions among its central tenets. Salient ideological tensions can be readily found in the dichotomy of new and old norms (for example, humanitarian intervention and non-intervention), the relationship between institutions and power, and the inherently problematic relationship between international law and morality, all of which belong to an international order reminiscent of a particular era.
In the past two decades, a growing number of political philosophers, jurists, and theologians have discussed the virtues and limitations of major policy measures of transitional justice, including criminal trials, truth commissions, lustration, amnesty, military and police reforms, and reparations. In contrast with numerous evaluative studies on specific policy tools, few efforts have been made to scrutinize the ideal of transitional justice underlying these tools. Another feature of the literature of normative study on the subject is that, in focusing on a small number of salient cases, notably the South African Truth and Reconciliation Commission, many authors have assumed the misguided framework of “truth vs. justice.” Still another shortcoming is that normative theorists have paid scant attention to findings of the emerging quantitative research on transitional justice policies.
To remedy these drawbacks of the literature, this paper begins by explicating the ideal of transitional justice. After formulating the concept of justice as a good equilibrium, I distinguish between two dimensions of justice: the dimension of desert-based treatment and that of equal treatment of similar persons/groups. These considerations reveal that the ideal of transitional justice does not exclusively demand trials of perpetrators but also such victim-centered policies as truth commissions and reparations.
Next, I argue that the “truth vs. justice” framework is incorrect partly because, when retroactive laws are invoked in trials, the prosecution and punishment of wrongdoers might violate the equal-treatment requirement of justice and the rule of law. Another reason against this framework is that truth commissions can advance the conception of justice as acknowledgment by helping prosecutions and civil lawsuits. Truth-inquiry institutions also promote the conception of justice as recognition by symbolically restoring the dignity of victims and survivors.
Finally, this paper discusses the implications that recent quantitative observations on transitional justice policies might have for normative study. Works of large-N statistical research to date have shown that the single use of a truth commission adversely affects the succeeding process of human rights protection and has no statistically significant impact on that of democratization. Moreover, neither trial nor amnesty has any significant impact on human rights or democracy. Only in countries where all three mechanisms were adopted, have positive effects on human rights and democracy been observed. These findings imply that a normative theory of transitional justice needs to seek a combination of, not a choice between, different policy measures.
Building on a growing body of literature in international and comparative politics on transitional justice, this article examines the debate as to whether international criminal justice contributes to peace. The establishment of the International Criminal Court (ICC) has often been hailed as the culmination of international human rights standards that have been developed and advanced as norms following World War II. Yet the ICC’s prosecution activities have been criticized by those who argue that the threat of punishment causes dictators to cling to power, resulting in delaying the end of conflicts or a smooth transition to democracy.
This article demonstrates how the “peace vs. justice” debate is rooted in opposing ideas for fostering international peace, both premised on the decentralized nature of international society, and how the tenets for their arguments are being shaken when faced with the reality of international human rights protection. Advocates for international criminal prosecution believe that strengthening centralized law enforcement authority beyond sovereign states will deter future atrocities. Given that a victor’s justice is no longer tolerated on one hand and that there is no world government in sight on the other, however, efforts to make credible the threat of prosecution would remain incomplete. Meanwhile those who criticize the ICC as an idealistic endeavor find the basis of international order in bargaining that occurs within sovereign states, but their logic is difficult to sustain because the ICC is making the promise of amnesty, considered crucial to strike a compromise, less credible.
The article argues that international criminal prosecution should be understood as part of the international community’s efforts to intervene in and improve internal governance of weak, failing or collapsed states. The limits of the ICC lie not just in weak enforcement but in the very act of questioning the legitimacy of leaders who are caught in conflict. International human rights norms encourage democratized states to address past human rights violations committed under previous regimes; however, they do not solve the problem of how to deal with perpetrators who are currently engaged in violence during times of democratization and peace negotiations. To make international criminal prosecution a viable force for the prevention of future atrocities, it must be coupled with assistance to domestic civil society, which has to bear the consequences of these ultimate decisions.
This paper aims at identifying the roles and functions of amnesty in transitional justice with reference to the prosecution proceedings at International Criminal Court (ICC). First, it gives an overview of the evolution of the notion of transitional justice and the role of amnesty in the international society. It points out that the measures of amnesty in transitional justice have conflicting roles: to facilitate the establishment of the new society on the one hand and to impede the accountability of perpetrators by forgoing past human rights’ abuses on the other. It then analyzes the conceptual changes of amnesty from positive to negative terms; historically it served to establish a better relationship between enemies by forgoing past events or to liberate persons detained for political reasons. It turned out that measures or laws of amnesty were abused by political leaders for the purpose of exempting themselves from being charged in the transitional period. This generated the idea that amnesty should be abolished at the international society. The United Nations commissioned a study on amnesty which proposed the restriction on the application of amnesty. Second, the paper studies the prosecution policy of ICC, clarifying the policy of respecting and strengthening national sovereignty and the principle of complementarity. Third, the paper examines how the ICC addresses the domestic measures of amnesty in its prosecution procedures by scrutinizing the cases of Uganda and Sudan. The two cases demonstrate that amnesty measures taken by governments are not so much for justice seeking or reconciliation but as for a political avoidance of the prosecution procedure before the ICC. In addition, they further indicate the tendency of ICC to adopt a positive prosecution policy by admitting and exercising its jurisdiction actively. Whereas this assists in strengthening the rule of law at the international level, it may hinder the capacity building of domestic jurisdiction as states make use of the ICC procedures as an alternative to their own judiciary, regardless of ICC’s complementary function. The paper concludes that while the amnesty measures have been employed for justice seeking by nation states, the efforts by ICC to pursue its judicial function in stricto sensu have caused some dilemmas regarding whose justice should be sought and how. The paper finds that the ICC, while recognizing its principle of complementarity that presumes and supports national sovereignty, does fortify its mandate by positively affirming its jurisdiction.
Transitional justice frameworks have been developed through the various attempts of societies emerging from conflicts. In this process, they have been stretched to encompass different kinds of norms, such as the rule of law and human rights, from related areas of post-conflict peace-building efforts. This “norm complexity,” however, has created tension between an existing norm and a new norm on its introduction when there is no congruence between them.
In this article, I analyze how this friction caused by competing norms and practices has been avoided. In particular, I examine the way the local “reconciliation” processes have been incorporated into the existing transitional mechanism despite the fact that local justice norms often fail to comply with international norms such as human rights and international accountability norms.
Firstly, I focus on the fact that the often vague and abstract concept “reconciliation” has different meanings and practices depending on the context and cultural background of its application. This phenomenon, which I call “normative pluralism”, is brought about by “translation.” This process of translation gives new relevance to pre-existing concepts in order to avoid contestation. These translation efforts can be explained as norm localization or “vernacularization” processes which result in the wide variety of meanings and practices.
Secondly, I explore who actually “translate” the meanings and practices and what elements are diffused and how. Unlike their passive role described in preexisting literature, I find a positive and subjective role played by local agents to build congruence between transnational norms and local ideas and practices. However, I argue that transnational agents serve as translators between transnational and local arenas. In fact, interactive work by both local and transnational agents could create a balanced modification of both norms in order to avoid arbitrary translation by the dominant local actors. In order to explain the transnational diffusion mechanisms of localized norms and practices, I employ the model of social movement theory to illustrate what is diffused and what is not. I argue that versatile elements, which comply with international norms and principles, can be diffused and result in further localization at the local level.
I apply this framework first of all to argue that in post-apartheid South Africa “reconciliation” was localized though the work of the TRC. I also discuss the way “reconciliation” was applied by the following post-conflict societies; East Timor, Sierra Leone and Rwanda.I conclude that versatile elements which are diffused by the transnational agents are only norms and practices in adherence with international standards and principles. As is clear in the case of Rwanda, however, these localization processes are prone to be manipulated by local actors without the involvement of transnational agents.
It is difficult to discuss “transitional justice” within the context of contemporary Russian politics. In Russia, as in other post-Soviet countries, there is no clear consensus on who defines “justice” and what the term entails. Several political groups have stressed an original Russian path of political development, such as the concept of “sovereign democracy” proposed by Vladislav Surkov, an executive within the incumbent Russian government. In addition, the background and structure of governing elites has not shifted clearly from that of the old regime, and the Russian parliament has not to enact a lustration law yet.
Paralleling such facts, many researchers on post-Soviet politics (especially in Japan) do not regard Western standards of human rights, rule of law, and democracy as absolute and universal values. They suggest that political changes in the post-Soviet space should be understood within the unique context of each country’s history and domestic political process. Another strand of research stresses that “the wave of liberalization and democratization” will not reach inner Eurasia—Russia and Central Asian countries—and that, the continent is divided by this lack of adherence to “universal values.”
This article, on the other hand, emphasizes the following two points. First, aspects of “universal values” are found even in Russian politics. In particular, the historical development of civil liberties and their policies of implementation—including the negotiation process between Russia and the Council of Europe (CoE) and domestic institutionalization of the ombudsman system—has proceeded positively (although slowly). While such Western values are not regarded absolutely in Russian politics, they still steadily and irreversibly influence the political process.
Second, the process of democratization in Russia and Eurasia is not static:there is no geographical cleavage between democracy and dictatorship, and “universal values” are penetrating, at least incrementally, into Russia. This article proposes a metaphor of archipelago, which Aleksandr Solzhenitsyn used in his masterpiece on the inhumane system of the Soviet gulag, to explain the geographical and cognitive distribution of civil liberties in Russia today.
The contemporary archipelago of civil liberties in Russia consists not only of governmental and state-based institutions, but the autonomous intentions of individual citizens. There is no alternative for the Russian government but to accept these values. However, the consolidation of civil liberties norms in Russia has been so limited that the Putin government’s relations with Western institutions such as the United States Agency for International Development (USAID) and CoE have deteriorated. In the short term, Western leverage and linkage that support civil liberties in Russia are decreasing.
In recent years, some IR theorists have begun to depart from the assumption of anarchy and to shed light on certain forms of inter-state hierarchy. Stimulated by those new studies, this article engages in a discussion on the legitimacy of a global authority which is expected to preside over ‘Responsibility to Protect (R2P)’ norms.
The first part of this paper clarifies the global authority governing R2P norms, and explains its critical importance. Drawing upon the concept of “right authority” in just war traditions, it is argued that a global authority in relation to R2P is supposed to decide whether certain states fail to fulfil their responsibility to protect, and if necessary, to take responsibility for authorizing military interventions for human protection. This will inevitably determine the nature of global order.
The following two sections examine both the United Nations Security Council and a proposed concept of “Concert of Democracies” as possible candidates to be the global authority. As a universally agreed legal authority, the Council is entrusted with the fulfilling of R2P principles, and in fact many commentators saw the Council decision in the case of Libyan civil war as its first successful implementation of R2P. However, the Council has critical legitimacy deficits in terms of its selective function to the intractable question of “for whom should the Council be ultimately accountable and responsible?” As for the idea of “Concert of Democracies” it is a reflection of “liberal hierarchy” based on the solidarity of liberal democracies, and presented as a preferred alternative to the illegitimate and ineffective Council. On the contrary to optimistic expectations, it is demonstrated that its exclusive membership and misguided assessment of liberal democratic states behaviour will undermine this institution’s legitimacy.
In conclusion I suggest two daunting challenges that the Security Council should overcome as the global authority responsible for putting R2P norms into practice. The first is to translate a plurality of values and interests of the Council members into the unity and effective decision making in times of humanitarian tragedies. The other challenge concerns the need for the Council to seek legitimation not only from member states but also from those people severely affected by the Council action or inaction. This might involve a transformation of the Council from globally acting authority into a kind of cosmopolitan authority based on the approval of “we the people” If this is the case, a new form of the Council authority will need further consideration.
This paper examines the justice-related questions that the international actors face when they implement the concept of “Responsibility to Protect (R2P),” particularly its Pillar 3 activities (outside international actors’ activities to protect populations under atrocious humanitarian crises within a sovereign state). The R2P is an important tool to protect the freedoms (= survival, livelihood and dignity) of those people who aspire to liberate/self-determine themselves from violent and autocratic situations (= the pursuit of “de-autocratization”). Justice in the implementation of the R2P concept can be found in two contexts. First, justice is an embedded elements of a social order (= “embedded justice”) on which the members share the general consensus on what constitutes justice in the society they belong. Second, justice involves not only the identification of those “injustices” to be corrected but also the actions to actually “correct” the unjust situation by which the people are deprived of their freedoms. The R2P tests the will of those international actors to see whether they are willing to take the “responsible” roles to “respond” to the calls of the people on the ground for help. In the traditional “society of sovereign states” perspective, the norm of non-intervention of domestic affairs plays the key role. But in order for the international actors to implement the R2P concept to protect the populations living inside sovereign states, it is essential to broaden the scope of the “society,” beyond the “inter-state society” model and to imagine the meta-level “global society” in which all the stakeholders live side-by-side and share the overall consensus on what constitutes “the embedded justice” in the society. Therefore, it is reasonable to assume that the R2P concept is implemented by the international actors only where the scope of “inter-state society” and that of the broader “global society” overlap. To achieve a society with a global perspective is not totally idealistic. The Roma Statute of the International Criminal Court has already envisioned the society in which “all peoples are united by common bonds, their cultures pieced together in a shared heritage” and resolved to establish the Court to “guarantee lasting respect for and the enforcement of international justice.” This agreement represents a step forward in our idea of justice in this globalized world. Having said so, however,the appropriate “middle ground ethics” has not been fully shared among the international actors, thus the international R2P interventions have been selective and arbitrary. Moreover, the change of political regimes often ensued in the guise of intervention for humanitarian purposes. Thus, the discourse and practice of the R2P challenge us how best we can harmonize the multiple “embedded justices” to achieve the common goal of the protection of human lives in a dynamic way.