Enabling Transitional Justice, Restoring Capabilities: The Imperative of Participation and Normative Integrity

Abstract

What does transitional justice require if it seeks to achieve justice in periods of radical change from oppressive regimes and violent conflict to peaceful democracies?1 The examination of pretransitional injustice typically reveals law’s instrumentality and its pathological effects, namely those caused not only by violations of civil-political human rights but also by violations of socioeconomic human rights. A normative shift is, therefore, the key to legitimizing the new dispensation. Yet, given law’s complicity in past injustice, a normative shift is only possible on the basis of law’s own rehabilitation. Therefore, law’s normative integrity can only be recovered through a substantive rehabilitation of victims’ capabilities negatively affected by previous human rights violations, especially violations of socioeconomic rights. With their capabilities restored, victims of historical injustice will be able to participate in the operations of transitional justice and function as equal citizens in the new dispensation. Accordingly, the imperative of participation based substantially on human rights to socioeconomic capabilities is at the heart of this reconceptualization of transitional justice.