On transitional justice

Jad al-Karim al-Jaba'i

April 08, 2018

Equality and freedom are the cornerstones of justice; there cannot be justice without the two. This includes gender equality – which is a fundamental basis and condition for justice – and equality in opportunities and responsibilities. Justice does not only entail the equal distribution of national wealth, social goods and cultural resources, but also the equitable sharing of power so that the distribution of the factors of productivity can change among social groups, and national unity is based on voluntary affiliation, common interests and goals. To reiterate, there is no justice without gender equality in freedoms and civil and political rights, otherwise procedural justice, such as free education for all, will remain fragile and reversible. There is also no justice without equality between ethnic, religious and sectarian groups in freedoms and civil and political rights, and the elimination and criminalization of discrimination.

Justice itself is a unique combination of equality and freedom similar to water being a combination of oxygen and hydrogen. If separated from one another, the first becomes inflammable and the other poisonous. It is a practical rule as well as a moral value that they cannot be separated from each other. There is no equality without justice, only zero-sum equality; and no freedom without justice, except for the powerful and the oppressive who exercise absolutist freedom – which is nothing more than "natural freedom" instead of civil liberty. This is where women’s issues are central; it is where women’s empowerment can happen and where she can enjoy her freedoms and rights, not rhetorically, but legally. This also requires linking citizenship to justice and procedural justice (raising the manifestations of injustice) and ethics, which can be oriented towards "social democracy".

There is no doubt that procedural justice is an important and positive step in the path to social justice, as it is necessary to resolve any injustice that can be resolved wherever possible. However, in the case of Syria at the moment, transitional justice is more important. By holding accountable those who have committed the crimes of assault, murder, destruction, displacement, abduction, detention, torture, rape and mutilation...etc., justice will have been served for the entirety of society, not just the victims and their families, as important as that is. Transitional justice here is the necessary condition – it is not enough to forget – in order to overcome the effects of the humanitarian catastrophe that has been inflicted on the country, to heal society from intolerance, violence, retaliation and vengeance, and the inevitable social integration and civic duty that must happen.   

Any small society, whether a village, town or neighborhood – or large society which does not regularly experience crime - that does not investigate a crime until it reveals the crime’s circumstances and punishes the perpetrator or the perpetrators, is a society without conscience and humanity, and with degenerate morals. So, imagine when the crimes committed exceeded in cruelty and brutality any other crime committed in recent history, when most of the perpetrators wear white collars, extravagant neckties and hold high military ranks! What would Syria become without transitional justice but a Syria without a conscience, in addition to being without thought and humanity. Without transitional justice, what would Syria become other than Assad's Syria, or George Orwell’s Animal Farm! In the exceptional case of Syria, in which what Hannah Arendt described as the ‘Banality of Evil’ has proliferated, we can understand being silent about the crimes out of fear of "grave consequences", but what cannot be understood is the denial or justification of the crimes, let alone considering them a moral obligation "in defense of the homeland.”

Within this context, we must stop here to contemplate the divide of Syrian society into two completely opposing divisions – “loyalists” and "opposition" – in addition to the religious and sectarian divides, and to reflect on how best to bridge the divide that has widened and deepened over the past few years. It is necessary when reflecting on this dilemma to redefine and contrast terms such as homeland, citizenship and patriotism, in addition to terms such as society, the public and the state. This is because transitional justice is necessary legally, morally, socially and humanitarianly and will have positive returns on the national level generally, but also from a moral perspective as well. Transitional justice is more than just paying reparations to the victims. That is to say, for justice to take place whether on an intellectual, moral or practical level, it must be accompanied with the mobilization of a worthy culture and a free media in order to advance the mission of justice, at least in the immediate future. It also must be pointed out that no vision or methodology is complete without paying close attention to the importance of language through a clarification and agreement process by participants in public discourse of concepts, terminology and symbols.

We would like to refer here to the importance of having an associative and inclusive vision that does not neglect sensitive or important primary data. These frequently lead to limitless and often unexpected results, both in social and human interactions or in the surrounding environment. It is a vision that recognizes that inequality exists, is committed to eliminating what inequality can be eliminated and does not discriminate between different individuals, groups or social groups. It is a vision that is based on the assumption that self-improvement resulting from the intersubjectivity of individuals is bound to produce an improvement in the quality of life, and social and legal protections within societies, organizations and networks. Intersubjectivity can be developed through humanistic values and positive feedback and reinforcement which can be accumulated in individual or collective memory and human feelings or human experiences throughout history.

At the global level, there are two major approaches in transitional justice thought: a pluralistic approach and the solidarity approach. In the pluralistic approach (the more dominant approach), the international community is made up of nation-states. While the solidarity approach is often associated with the concept of a global society that is composed of individuals and is based on the principles of equality, freedom and justice.

In its view, everyone – whether male or female – has human rights and those who suppress these rights cannot hide behind borders, i.e. escape punishment for their crimes against human rights. It is the duty of individuals who believe in solidarity to protect and disseminate human rights beyond state borders. They also believe in the collective implementation of international law, including legal principles, and the collective management of the international system and on international issues, i.e. they believe in global governance. In their view, the principle of state sovereignty is nullified when rulers and leaders do not adhere to the principles of human rights. However, solidarity thought is not as mainstream as the pluralistic approach. Its main thinkers or adherents include John Vincent, Nicholas Wheeler and Tony Brems Knudsen among others. Supporters of the solidarity school of thought have developed the principle of humanitarian intervention, in which intervention in certain cases cannot be considered illegal. In the event of a severe human rights violation, collective intervention must be carried out, preferably sanctioned by the United Nations Security Council. This approach to transitional justice requires the development of international justice instruments and independent institutions, such as the International Court of Justice, the International Criminal Court and others, from the Security Council.

The rulings of these institution must be considered binding for all states, which requires devising practical mechanisms for their implementation. The principle of an independent judiciary is among the most important principles of procedural justice, which is why it must be implemented internationally, not on a country-by-country basis.

The solidarity approach is based on trust, cooperation and the exchange of knowledge and experiences. It is not limited to the solidarity between individuals and groups within a certain society or state but should extend to solidarity between members of the international community. It is solidarity that will put globalization on the path to justice and global citizenship, and it will make freedom, equality, justice and human rights global issues for all of humanity.

We contend that that equal citizenship based on communication, intersubjectivity, and fairness and equity between individuals and groups – especially between men and women – will be a pivotal step in the path to social justice, the formation of a contemporary society and the rejection of humankind’s alienation from itself and the world.