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Upcoming Inquiries for the Field of Transitional Justice: Response to Commentaries


Colleen Murphy is a Professor in the College of Law and the Departments of Philosophy and Political Science at the University of Illinois at Urbana-Champaign, Director of the Women and Gender in Global Perspectives Program in International Programs and Studies, and Affiliate Faculty of the Beckman Institute.


Transitional justice is the process of reckoning with past wrongs in the midst of an attempted transition away from extended periods of conflict or repression. In my book, The Conceptual Foundations of Transitional Justice, I examine the question of how we should understand the “justice” of “transitional justice.” By what standard or set of principles should we judge “justice to have been done” in the way a society deals with past wrongs in the context of a transition? How should we think about the justice of processes like truth commissions, amnesty or reparations? I argue that retributive justice, corrective justice and distributive justice are not the standards to use to answer these questions.

“Transitional justice” has its own standards of justice, standards which become salient in the context of four specific circumstances. These circumstances are (1) pervasive structural inequality in the terms by which citizens and officials interact; (2) normalized collective and political wrongdoing, in which human rights violations become a basic fact of life; (3) serious existential uncertainty, where the future trajectory of a political community is profoundly unclear; and (4) fundamental uncertainty about authority given that the state is characteristically implicated in wrongdoing. In these circumstances, I argue, the central question of justice is: what constitutes the just pursuit of societal transformation? I define societal transformation as relational transformation, transformation of relationships among citizens and between citizens and officials. Justice is done when processes contribute to this relational transformation and so in a way that is sensitive to the claims of victims and moral demands on perpetrators of wrongdoing.

I am very grateful to David Tolbert and Roger Duthie, Laurel Fletcher, Steven Ratner, Nir Eisikovits, and James Stewart for their careful reading of my book and for pressing me on some of the most difficult questions for me to answer adequately. Below I respond to their queries by discussing (1) the relationship among development, peacebuilding and transitional justice; (2) the relationship between the requirements of societal transformation and the requirements for its just pursuit; (3) where I identify the limits of transitional justice.

Development, peacebuilding and transitional justice

Consider first development and transitional justice.[1] Development I take to be concerned with the expansion of individual and communal capabilities. Capabilities refer to genuine opportunities to do and become things of value, such as being adequately nourished, being employed and being educated. Genuine opportunities are a function of (1) what an individual has (e.g., skills and resources) and (2) what she can do with what she has (e.g., given the state of the built infrastructure within a community or gender norms.) Poverty from this perspective is defined in terms of deprivations, such as “inadequate resources to buy the basic necessities of life; frequent bouts of illness and an early death; living conditions that imperil physical and mental health.”[2]

The imperatives of development and transitional justice overlap to a certain extent. For example, my account of relational transformation includes fostering threshold levels of capabilities, including the capability to avoid poverty. Thus, processes that aim at or contribute to poverty reduction can promote both development and transitional justice. However, development and transitional justice may also diverge. For example, development policies may prioritize natural hazard mitigation, which is recognized to be essential to the sustainability of development but which is not essential to relational transformation. Furthermore, transitional justice is constrained in ways that development is not. Transitional justice pursues relational transformation by responding to past wrongs, and so prioritizes victims of wrongdoing, many but not all of whom are poor. Thus, development policies aimed at the most effective alleviation of poverty may not focus on the same group.

What is the role of peace in my account of transitional justice, Ratner, Tolbert and Duthie ask? Short-term peace is often a condition for the possibility of longer-term societal transformation.[3] For instance, reductions in violence, especially through cease-fires and other truces, can contribute to establishing or strengthening the conditions on which the rule of law depends. The rule of law requires restraint on the part of both officials and citizens. And part of what motivates citizens to exercise this restraint is faith in law and trust in the officials who make and enforce law. By respecting the restraint required by a period of a ceasefire or truce, citizens and officials previously in conflict can have evidence that wider restraint required by the rule of law may be possible, and so in a very minimal way begin to build trust.

Eisikovits wonders whether I have overlooked an important source of fragility in transitional contexts, which exacerbates serious existential uncertainty and fundamental uncertainty about authority: the absence of shared political history and identity. Such history and identity, he suggests, provides a shared background against which to evaluate contemporary events, resources for agreeing where political events are indeed different than challenges faced and overcome in the past. In response, I agree that the absence of shared history and identity is surely salient in many transitional contexts. Indeed, diverging and in some respects incompatible historical narratives is a crucial feature of contexts where deep divisions exist. Whether in Serbia, Bosnia, Northern Ireland or Colombia, diverging narratives are present of what wrongs were done, by whom and against whom, and what events and people should be remembered and in what way. It was in part the question of how to think about the absence of shared narratives and identity, and the implications for liberalism and democracy that my interest in political reconciliation and then in transitional justice first arose. I wondered whether what the philosopher John Stuart Mill called “common sympathies” were in fact necessary for the kind of governance he envisioned.

However, I think a key source of political fragility is a shared sense of the plausible practical possibilities through which a transitional society must navigate and of what those possibilities actually entail. If a society is emerging from a period of civil war, a return to civil war is not merely a rhetorical question politicians or citizens may ask, but a genuine practical possibility. It is one option of many along a spectrum of what may happen. By contrast, though we had a civil war 150 years ago, another civil war is not a practical possibility for Americans today despite deep political divisions and widely diverging narratives of our present moment; there is no shared sense of this being a practical possibility of where our divisions may lead. Nor do many Americans have a robust sense of what civil war would actually entail. Thus, I am more inclined to think that what exacerbates uncertainty is the fact that certain possibilities for where events may lead are not merely hypothetical and are widely recognized not to be merely hypothetical given recent history, rather than the absence of shared narratives.

Societal transformation and its just pursuit

A second cluster of questions that the commentators raise concerns the two dimensions of transitional justice I articulate: societal transformation and its just pursuit. Ratner wonders whether societal transformation is the unique or best way of addressing the problem that the four circumstances of justice generate. In my view, societal transformation is not the only possible candidate of the problem the four circumstances of justice generate. One function of my argument in Chapter 2 is to demonstrate the limitations of some alternative ways of defining the problem of transitional justice, drawn from standard accounts of retributive, corrective and distributive justice. Relative to these alternative possibilities, I argue, transformation is the best way of conceptualizing the problem of transitional justice. As I acknowledge in the conclusion, however, there are different ways of filling out transformation than the substantive view that I articulate in Chapter 3. One may think of transformation not in terms of relationships, for example, or may think of what relational transformation requires in ways that do not invoke (only) the rule of law, trust and relational capabilities. In adjudicating among conceptions of transformation, one account would be better in my view if it more effectively responded to pervasive structural inequality and normalized collective and political wrongdoing.

How should we understand the status of the “just pursuit” of transformation, Ratner, Tolbert and Duthie all press? Is there intrinsic value to the requirements of fitting and appropriate conduct of treatment of victims and perpetrators? Could be processes of justice that respond to the claims of victims and demands on perpetrators but not aim at broader transformation? The answer to both questions in my view is yes. In my view, a just reparations scheme could narrowly aim at acknowledging wrongdoing experienced and providing compensation for losses suffered by victims, respecting the other conditions for pursuing these aims I discuss in Chapter 4. It would be just insofar as it satisfied these intrinsically important criteria for fitting and appropriate treatment of victims. However, this process would not be a process of transitional justice in my view. In transitional justice, the requirements of fitting and appropriate treatment of perpetrators and victims play an additional, instrumental role in contributing to societal transformation; the aim of transformation is necessary for a process to be one of transitional justice.

Are the requirements of societal transformation and of fitting treatment of perpetrators and victims interdependent or independent? I use just war theory as a model for understanding the relationship between the two parts of transitional justice. However, Ratner notes that the two dimensions of just war are not completely independent in practice. The justice of the cause of anti-colonial fighters came to shape the justice of their actions. In terms of transitional justice, given the tight relationship in practice between pervasive structural inequality and normalized collective and political wrongdoing, there will be a tight relationship between the prospects for societal transformation and satisfaction of the demands for its just pursuit. For example, one aspect of societal transformation is establishing threshold levels of opportunities to be recognized as an equal member of one’s community. This is also an aim of responses to individual victims, to acknowledge them as equal members of their community. Thus, by expressing recognition of the victim as an equal member of a community a process can impact the transformative aim of establishing threshold opportunities to be recognized as members of a community of a previously marginalized group. In future work, I hope to think through this question of interdependence more fully.

Can these two parts of transitional justice ever be in tension? Yes. I agree with Eisikovits’ point that there can be tensions that arise in the pursuit of societal transformation and respect for the claims of victims and demands on perpetrators. There may need to be compromises made in the pursuit of transitional justice, and one place is in balancing the demands of transformation and the demands of fitting and appropriate treatment of perpetrators and victims. The balance or compromise may be between the degree of accountability achieved and the degree of the contribution of a process to broader relational transformation. Amnesties, which Eisikovits references, can illustrate this balance, though I do not believe amnesties are necessarily incompatible with just treatment of perpetrators. Depending on the conditions which must be satisfied to be eligible for amnesty, there can be a measure of accountability for perpetrators achieved.

A different tension may arise in trying to pursue transformation in a manner consistent with the kind of relationships you aim to foster. In particular, there is a question of whether democratic relationships can permissibly be pursued non-democratically. Answering this question is difficult in part because it is not obvious what demands democracy place in choices concerning transitional justice; this is an issue I want to also take up more directly in future work. What kind of say over what kind(s) of questions should the people have for transitional justice to be democratically decided? This question underlies debates in Colombia over how to think about democratic legitimacy of the decision not to hold a second plebiscite on the revised Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, after the original version of the Final Accord failed in the first plebiscite. 

The limits of transitional justice

Stewart, Tolbert and Duthie press me on the limits of my theory. Tolbert and Duthie press me on the limits of possible processes of transitional justice, given my call to expand the processes considered beyond criminal trials, truth commissions, reparations, amnesty and memorials. Specifically, how I would evaluate educational reform? In my view, whether education will be a process of transitional justice depends. Educational changes could count as processes of transitional justice. Specifically, how history is taught may be modified to more explicitly acknowledge past wrongdoing, both as a way of recognizing the dignity and citizenship of those previously denied such recognition and as a way of facilitating societal transformation by countering denial about the prevalence of, nature of, and/or conditions that facilitated wrongdoing. Other educational reforms not specifically dealing with the wrongs of the past may contribute to societal transformation but would not count as processes of transitional justice in my view.

Stewart’s post highlights the international character of many contemporary conflicts and the causal role of international actors in maintaining repressive regimes and in atrocity. Such actors include multinational corporations as well as foreign governments.  He also correctly notes the implicit in my account is a focus on a single domestic society. How can my framework account for the global dimensions of transitional justice? Here are some preliminary thoughts, which I look forward to expanding on in greater detail in my next project. Consider first the requirements for the fitting and appropriate treatment of perpetrators and of victims. Those moral demands do not have geographical limits. There is no principled reason to cordon off the role of international actors implicated causally in atrocity. The question is: how, by whom, and for what purpose(s) will these demands be pursued? Accountability for international actors may be pursued for its own sake, and not just by a transitional society but also by, for example, the home country where a corporation is based. Accountability may be pursued for its own sake and also for the sake of societal transformation; this would be a case of its pursuit as part of transitional justice. When pursued as part of transitional justice, the question of the form accountability will take to facilitate societal transformation is one for the transitional society in question primarily to decide, subject to parameters set by international law. Finally, in terms of transformation itself, I also agree with Stewart that our interdependent global order and influential actors like multinational corporations mean that that transformative possibilities will not in many cases be set or determined by domestic actors alone. I also agree that global justice, by which philosophers mean justice in the background global institutional order that shapes the distribution of goods and resources, may be important for its own sake and for enabling, or at a minimum not undermining, local transformation of relationships between citizens and officials.

Fletcher, Tolbert and Duthie all approach my book from the perspective of practitioners and ask: will my book make a difference to transitional justice theory and practice? They note ways in which my account is responsive to concerns among practitioners and scholars, including the fact that structural marginalization and discrimination are key factors in mass violence. Fletcher also suggests that my account provides guidance on how to move beyond currently intractable disagreements concerning, for example, how to balance legal duties to truth, reparations, accountability and non-recurrence, where these duties can be thought of as reflecting duties of different kinds of justice. Instead, my account she rightly notes suggests we instead ask: what processes will transform relationships both among citizens and between the state and citizens? My hope is that my book can contribute to shaping and rethinking the questions asked by both scholars and practitioners, though only time will tell if this indeed becomes the case.

 

[1] The brief points made here I develop in greater detail in Deliberative Democracy and Agency: Linking Transitional Justice and Development, in Lori Keleher and Stacy J. Kosko (eds.), Agency and Democracy in Development Ethics (Cambridge University Press, forthcoming 2018).

[2] I draw on the capability approach to development pioneered by Amartya Sen and Martha Nussbaum. The quote is from James Foster, Suman Seth, Michael Lokshin, and Zurab Sajaia, A Unified Approach to Measuring Poverty and Inequality (Washington DC: World Bank, 2013)

[3] The question of the relationship between peace and transitional justice I develop in some detail in Colleen Murphy, Political Reconciliation, the Rule of Law, and Truces, 13 Journal of Global Ethics 28 (2017).

Appraising Transitional Justice Through the Just War Theory Analogue


Steven R. Ratner is Bruno Simma Collegiate Professor of Law at the University of Michigan. His teaching and research focus on public international law and on a range of challenges facing governments and international institutions since the Cold War, including territorial disputes, counter-terrorism strategies, ethnic conflict, state and corporate duties regarding foreign investment, and accountability for human rights violations.


Colleen Murphy’s The Conceptual Foundations of Transitional Justice offers a significant addition to our understanding of transitional justice (TJ) in at least three ways.

First, Murphy deserves accolades for traversing numerous disciplinary divides in her approach to TJ. For scholars seeking to build more bridges between international law and philosophy, this books offers an excellent way as to how it can be done. Although legal scholarship on TJ has recognized many of the goals that Murphy defends, lawyers will benefit from the careful way in which she discusses trade-offs and priorities. Philosophers, on the other hand, should learn the importance of direct engagement with the key legal sources, including the workings of several TJ mechanisms.

Second, Murphy’s explanation of the justice of TJ moves us beyond both political and legal ways of thinking about TJ. Students of politics tend to think about TJ in terms of its success or failure for the particular country, with different measurements of those terms. Lawyers take the “justice” in TJ to mean that the starting point must be criminal justice, although they realize that TJ must encompass other goals like truth, acknowledgment, reparations, and measures for non-recurrence. They also tend to zero in on the scope of a state’s duties under international law (e.g., are amnesties allowed? Is there a right to the truth?)

Murphy helps us see that TJ is a matter of justice as philosophers understand that concept. She also emphasizes the necessity of defining clearly the subject matter of justice – that the justice of one thing (e.g., the basic structure of a liberal state) is quite different from the justice of something else (e.g., a TJ course of action taken by a state). Chapter 1 thus offers up the criteria of a TJ situation, so we know why the justice of that thing is worthy of inquiry. The four criteria that she offers seem to encompass the real-world cases that we ordinarily think of as concerning TJ and to raise morally important questions.

Third, and the focus of my comment, Murphy adopts an original methodological hook for analyzing the justice of a state’s TJ choices, namely to examine separately the just goals of TJ and the just means of carrying it out. Her analogy is to the two branches of just war theory (and the of law of war as well), namely the jus ad bellum (JAB) and the jus in bello (JIB). She thus develops what she calls the jus ad bellum analogue (JABA) and the jus in bello analogue (JIBA). This bifurcation of justice has the potential to provide a new level of clarity in our thinking, as we accept the need to look at two aspects of the process and not merely one.

At the same time, the JABA/JIBA approach raises some new conceptual questions. First, within the JABA itself, although the goal of social transformation (ST) – which she equates with relational transformation (RT) – is morally compelling, is that goal the only — or the principally — just goal for TJ? To return to the legal paradigm, in the case of the JAB, we can say that the only legally defensible reasons for a state to use force against another state are self-defense, authorization from the Security Council, and, on some accounts, humanitarian intervention. It is a necessary and sufficient condition of JAB legality that the state action be based on one of these three grounds. But does ST/RT meet the necessary/sufficient test? Though Murphy shows that ST through RT can respond to the four unique moral problems of a TJ situation, it is not clear if ST is the best or only means to address those problems. And even if it is the best or only method, why does that make it just in the same sense that JAB tells us the necessary and sufficient conditions for a just (or legal) war?

Second, and relatedly, because many TJ situations arise after prolonged violence in a country (not just “normalized and collective wrongdoing”), one wonders what role in the JABA is played by solidification of domestic peace. The serious existential uncertainty that helps define a situation needing TJ can extend to whether the peace will even hold. Murphy points out (p.111) that stability has its own value, as people still need to live their lives, with school, businesses, marriages, and ordinary living continuing. Yet those seem to take a back seat to ST.

Certainly, elites in a transitional situation can use the canard of solidification of the peace as a way to avoid any serious ST. I’ve witnessed this myself when I served on two UN accountability panels, for Cambodia and Sri Lanka, where the triumphalist elites running those countries each insisted that trials, or even investigations, of international crimes would re-ignite civil wars (by the Khmer Rouge and the LTTE, respectively) that were clearly over. But certainly it seems morally compelling goal of TJ to ensure that peace is maintained in those situations where it might be precarious. ST via RT can provide a way to long-term domestic peace, but it is not at all clear that it can provide short-term peace. Transformation may have to be put on hold to placate the losers or those with the ability to upset the transition.

Third, the JABA/JIBA tool can give rise to some new questions regarding a just TJ. International law doctrine generally holds that JAB and JIB operate independently. Under the so-called “separation thesis,” the legality of going to war is not affected by how it is carried out, and vice-versa. In particular, a state that obeys the rules of war (JIB) cannot be relieved of its liability for an aggressive war (JAB); and states that use force for legally acceptable reasons (JAB) still must obey the rules of war (JIB), even against aggressors. This principle explains the practice of the International Committee of the Red Cross of not commenting on the underlying legality of a war, as it insists that all parties must comply with the JIB.

Yet JAB and JIB are not actually completely independent. After states banned most uses of force in Article 2(4) of the Charter, states adjusted the JIB in the 1949 Geneva Conventions to make clear that territory annexed by the occupier was still legally occupied. And as most states began to accept that anti-colonial wars were lawful, they changed the jus in bello in the 1977 Additional Protocol I to state that anti-colonial fighters who did not resemble traditional soldiers would also receive most of the privileges of combatantcy and not be treated as illegal fighters. (See Addition Protocol I, arts. 4, 44). So it turns out that the legality of the recourse to force can affect the legality of the conduct of the war.

In Murphy’s use of the JIBA/JABA model, the thrust of her Chapter 4 seems based on the separation thesis – that we judge the justice of the manner of a transition independently of its goals. She thus usefully says TJ responses must be “fitting or apt” (p. 163), which turns on four features (pp. 163-72). First, they must address six moral imperatives, i.e., they must respond to the perpetrators by (1) repudiating their wrongs and (2) holding them accountable; they must respond to the victims by (3) acknowledging the wrongs against them, (4) recognizing their status as victims, and (5) providing reparation; and they must respond to both by (6) promoting nonrecurrence. These correspond to goals widely accepted by practitioners of TJ in international organizations and NGOs.  Second, they must reflect the relations among the relevant actors. Third, they must reflect the gravity of the offense. And fourth, they must reflect cultural expectations. She goes on to show, through good examples, how, different institutional responses – e.g., the ICTY and the Ugandan Amnesty Commission – did not “fit” based on those criteria. And she astutely observes the importance for states of “active coordination” by domestic and international actors to make sure that each TJ mechanism is considered in connection with the others, rather than in isolation.

Yet I wonder whether, like the law, strict separation does not offer a complete description of the two aspects of justice. In particular, is there a connection between the JIBA requirements and the JABA requirement? It would be nice to explore how each of the imperatives regarding perpetrators and victims advances ST/RT or how the imperatives might change if the goals were different from ST/RT. I agree with her inclination, which she justifies in the conclusion, not to ask how “any specific kind of response” (p. 198) actually contributes to ST, but it would help to know how the six imperatives (which are one level up in generality) do so.

Second, in thinking about the six moral imperatives for TJ responses, one might ask why are they not also – or instead – part of the JABA, i.e., the just goals of a transition? International organizations like the UN and other scholars of TJ generally describe those six imperatives as part of the end, in part because ST/RT sounds too academic as well as idealistic, but also because they see those imperatives as part of the goals of TJ. So are these six imperatives intrinsically valuable, regardless of their actual effect on ST/RT? Intrinsically valuable but also instrumentally valuable?

Murphy ends with an important plea for a holistic view of justice, one sensitive to the JABA and all the many elements of the JIBA. I certainly agree, although maybe the international organizations have it right by having us consider justice only from the latter perspective. If a state finds the proper mechanisms that meet the six moral goals in a way that that also respects the other three JIBA criteria, does it matter whether its goal is ST/RT or something else? One could consider that a great success and also be confident that societal transformation would follow on its own.   At the same time, by justifying ST/RT as the ultimate long-term just solution to the unique problems of TJ, Murphy has helped us see where the state eventually needs to go.

Fragility, Authority and the Ethics of Transitions


Nir Eisikovits is an Associate Professor of Philosophy & Director of the Applied Ethics Center at the University of Massachusetts Boston.  His areas of expertise include Transitional Justice and Post War Reconstruction, Ethics of War, and International Relations Theory.


Colleen Murphy’s new book on transitional justice displays her signature blend of analytic rigor, elegant writing and empirically anchored theorizing. She follows up her excellent first book on political reconciliation with a volume on what it means to transform a war torn society so that it can, ultimately, become reconciled. The just pursuit of political transformation, Murphy argues, is at the heart of the idea of transitional justice. This is the best, most ambitious philosophical account of transitional justice that I have read. The book can be read with great utility by scholars and students seeking to understand the unique conditions and dilemmas surrounding transitions, as well as by policy makers interested in fashioning decent and legitimate transitional institutions.

In this essay I will focus on Murphy’s characterization of the unique circumstances holding during times of transitions. To develop a normative account of transitional justice one needs to understand the conditions that countries struggling to make a start after war or mass atrocity face. This is why Murphy’s book must begin with laying these conditions out.

Murphy tells us that transitional states are characterized by pervasive structural inequality – a legacy of the unjust social arrangements that held in the past. Consider, for example, how apartheid misshaped the life prospects of Blacks in South Africa and the resulting deep inequalities. These states also suffer from a normalization of collective and political wrongdoing (to stay with the South African example, consider that for many in that country the apartheid state – through its institutions and actors – was seen as an agent of harm). It made your husband disappear, it enlisted your sister to spy on her own people, it made you worry about the safety of your children.

Under such circumstances, Murphy reminds us, major crimes become normalized – an expected part of life’s fabric: “wrongdoing such as rape, disappearing or torture… becomes a basic fact of life for individuals in the midst of conflict … a fact around which individuals must orients their conduct” (55). The third feature of transitions is “serious existential uncertainty”: political instability, lack of resources and the lingering influence and power of the old guard make countries that try to emerge from prolonged violence especially fragile. We just don’t know if they will make it through and many of them don’t, or at least fail to make it through as democracies (consider Egypt’s post Arab Spring turmoil, or even the authoritarian version of Rwanda that emerged under Kagame). Finally, there is fundamental uncertainty about authority: does a transitional regime have the political, legal and moral authority to “rule and enforce rules?” (72) and does it have the authority to address past wrongs and work towards social transformation – especially if those wrongs were legal at the time of commission and if the new regime is not completely purged of those who were influential in the past?

I would like to further flesh out some of these conditions – especially the last two – and suggest some implications for political transitions. The fundamental uncertainty about authority and political fragility attendant to transitions are exacerbated by a lack of political traditions and the lack of a shared political history and identity. In settled democracies both leaders and citizens can appeal to a store of past experiences and some settled views or traditions about how to deal with extreme circumstances. These traditions can provide guidance and a background against which to judge current conduct, even when it is extreme or unprecedented (in fact, the very ability to agree that the conduct of an official is unprecedented and completely strays from widely accepted traditions can buttress existing institutions and put current turmoil in context).

A fledgling United States considering John Adams’ prolonged absences from the capital and his temper tantrums in a very different way from a modern United States assessing President Trump’s behavior. In the intervening two and a half centuries the country gradually developed a set of expectations and traditions about how its leader should act. An observer of Adams could legitimately ask whether that was what a president was supposed to do (ironically, as Vice President, Adams who was very aware of the fragility of the institutions of the new republic and tried to invest the presidency with grandeur and gravitas by proposing various titles by which the president should be known. His efforts were unappreciated, ultimately earning him the moniker “his rotundity”). An observer of President Trump’s antics has an answer to that question. Stated differently, it is easier for settled democracies to get through periods of significant political fragility. What makes these hardships less existentially frightening in settled polities is the existence of political traditions, shared history, some sense, if you will, of political identity, that can put threats in context (“we’ve been through worse…” “don’t panic – remember how many people supported Nixon in the first few months after his maleficence was made public …” “we have a self correcting political system” and so on).

Transitional polities, then, are precarious because, on the one hand, so much hangs on the success of their transitional processes and, on the other, they have little guidance and very few tools to successfully shepherd themselves through. Spain immediately after Franco was often steps away from falling back into a dictatorship. South Africa after the demise of apartheid was similarly close to the brink. And in each case these countries were pretty much flying blind – dependent on the political instincts of their leaders, international good will, the exhaustion of their citizens, and, frequently, dumb luck. Under these circumstances, one wonders how much we can expect, morally, from a process of political transformation. Murphy invokes a fascinating analogy to Just War Theory and its distinction between Jus ad Bellum (the justice of the decision to go to war) and Jus in Bello (the justice of the war’s conduct), to remind us that a transition is subject to two layers of moral judgment: first, whether it seeks to create the right institutions and instill the right principles and, second, on how it does these things. But the combination of political fragility and lack of clear lines of authority which Murphy describes, raise questions about whether transitions to democracy can really be pursued democratically and about the moral meaning of a failure to do so.

Spain’s transition was facilitated by a pacto del olvido or pact of forgetting – a refusal, for many decades, to talk about the horrors of the civil war and the crimes committed in its aftermath. South Africa’s transition was facilitated by the work of its Truth and Reconciliation Commission (TRC). Both of these, in very different ways, were failures to live up to standards of the rule of law. The Spanish Pacto for the obvious reason that it completely sidelined the need of victims for public acknowledgement; the TRC because its hearings jettisoned basic tenets of the rule of law and because, to paraphrase Michael Ignatieff, it inaugurated South African democracy by letting a bunch of murderers get away with murder. And yet there are reasons to give both of these states a moral pass. Not a permanent pass; it is, of course, much more problematic to insist on silence in Spain now than it was in the 1970’s, and South Africa cannot continue to build its legal system on truth for amnesty arrangements. But given the extreme fragility, high stakes and lack of legal and political standards to guide action – we tend to view these “sins” of transition leniently. Murphy, even though she considers the different ways transitional policies can fail the “jus in bello” test, does not quite consistently consider the possibility that governments engaged in transitions are structurally set up to fail it or to seriously risk failing it.

Compartmentalizing Transitional Justice


In August this year, three French investigating judges were appointed to assess allegations that the Bank BNP Paribas was complicit in the Rwandan Genocide. According to the Financial Times, “[t]he bank is accused of transferring more than $1.3m of funds used to finance the purchase of 80 tonnes of weapons by a Rwandan general that allegedly broke a UN embargo and helped to arm the perpetrators of the country’s genocide.” Because much of my scholarly engagement with international criminal justice has focused on these sorts of allegations, for better or worse, I tend to assess normative accounts of the field with cases like this in mind. In what follows, I use the BNP Paribas case as a theme in commenting on Colleen Murphy’s excellent book, entitled The Philosophical Foundations of Transitional Justice (CUP, 2017). In part, I use this frame to shed light on an element of atrocity’s etiology that, in popular imagination at least, still seems shrouded in denial. More importantly for present purposes, though, I wonder if cases involving business participation in atrocity might offer a slightly different vantage point from which to evaluate conceptual models of transitional justice.

Murphy’s insightful account of the field points to four different features of societies in transition that make justice claims in these contexts a breed apart from those that apply in stable democracies. Contrary to Posner and Vermeule, Murphy eloquently argues that transitional justice is not like normal justice; it is qualitatively different because of the fundamentally distinct circumstances that constitute periods of political transition. As she explores in great depth, these surrounding political circumstances include: (a) pervasive structural inequality; (b) normalized collective and political wrongdoing; (c) serious existential uncertainty; and (d) fundamental uncertainty about authority. The combination of these circumstances in transitional contexts means that ordinary ideas of retribution, corrective justice, and restitution do not cater to the needs of affected societies. The misfit with these usual concepts of justice is so acute that we must craft an entirely new, distinct brand of justice that follows its own logic and answers to its own self-consciously defined first principles.

There is much I am attracted to in this approach and its brilliant execution. Let me start by pointing to the project’s apparent grounding in philosophical pragmatism. Surely, concepts of justice are context-sensitive. Undoubtedly, a major part of the problem for the field lies in avoiding blunt universalisms that do further violence to societies struggling to shed the heavy yoke of mass violence. At the same time, Murphy is clearly aware of the dangers of venerating the local at all costs; she astutely highlights the difficulties with over-correcting in favor of the local where she observes that “[r]adical contextualism can be just as problematic as an un-nuanced universalism.” (p. 81). Thus, transitional justice is philosophically pragmatic (by the by, I use this tradition to think about corporate responsibility here). Yet, if the concept of justice in transitional justice will always be context-sensitive, this leaves me wondering about the borders between the local and universal in Murphy’s self-contained concept of transitional justice, how this compartmentalized approach to justice will interface with others in a global society, and whether modulations in type of actor will affect the theory.

To begin, I am not entirely clear whether the BNP Paribas case falls within the bounds of transitional justice, on Murphy’s thoughtful definition or any other. On the one hand, it makes sense to treat the case as an element of transitional justice, assessing it against the very insightful standards Murphy has articulated. Apart from the alleged causal link to the genocide, our ability to alleviate the four characteristics that are particular to transitional societies is probably heavily dependent on transforming business—absent global economic revolution, post-conflict societies desperately need direct foreign investment that makes its way to people in survival economies instead of fuelling kleptocratic governments, corrupt patronage networks and brutal armed groups. On the other hand though, foreign economic actors are not clearly part and parcel of the affected society, precisely because they are outsiders culturally and geographically. The primary community of interest in discussing the moral legitimacy of the BNP Paribas case is likely French, not Rwandan, so the conceptual standards we would employ to scrutinize the case’s conceptual propriety lie beyond the special realm of transitional justice.

If the borders of a siloed concept of transitional justice are slightly unclear, the foregoing leads me to wonder about whether there is a geographical element to this theory. Are the principles of justice that govern transitional justice necessarily linked to features of a discrete, local political order? In other words, Murphy’s argument skillfully implies a plurality of justice (not just law), but I wonder if the different compartments of justice we create by disaggregating the concept aren’t overly geographically bound. We rightly think of Gacaca, the Rwanda Tribunal, and a host of other institutions and programs undertaken in Rwanda as falling within the transitional justice paradigm, in large part because the four characteristics that constitute the transitional paradigm stem from a single society reeling after mass violence within a single country. But importantly, the causal factors that gave rise to these atrocities were not geographically constrained in the same way. Foreign businesses in non-transitional societies allegedly contributed to the Rwandan Genocide too. So, which concept of justice—which set of principles—will govern the BNP Paribas case?

A causal account of atrocity might also suggest different rationale for justice. In her helpful discussion, for instance, Murphy points out that retribution does not easily match the needs of transitional societies since it assumes that wrongdoing is “deviant, individual and personal.” (p. 59). To focus just on deviance, the argument is that accountability is usually predicated on infrequent transgressions within an otherwise compliant society, so the retributive model collapses under the weight of widespread, normalized mass violence. Personally, I have always harbored vague misgivings about this argument, since it seems to assume a very temporally static, geographically bound notion of deviance (crimes in Nazi Germany were normalized at the time but deviant by even local standards measured before and after the war, and similarly, crimes in Rwanda were normalized there in 1994, but judged deviant by a thin concept of global community even at the time). Both these intuitions are very disputable, but there is another that business cases help bring into sharper relief—perhaps the actions of a particular foreign company implicated in atrocity were highly deviant even when violence was normalized for local citizens?

So, if the validity of justifications for punishment turn on which justice paradigm we choose and the type of actor implicated, these realities invite a wider set of reflections of how a compartmentalized concept of transitional justice interfaces with others in a globalized society. Here too, I wonder if the self-contained account is water-tight. For example, if globalization was born in colonialism, and actions of many foreign companies represent modern iterations of longstanding commercial practices consummated there, is there not a risk that a state-centric, geographically grounded concept of transitional justice will overlook the long history of foreign actors fomenting bloodshed for profit that at least dates to Leopold in the Congo? As for the present, what can we say about spikes in global demand for coltan for cellphones, tin for circuit boards and now cobalt for car batteries playing an important causal role in bringing about the mass violence transitional justice exists to remedy? Is there a danger that the very structure of transitional justice will leave these out?

Perhaps even the element of “transition” lends itself to this concern. Murphy rightly cites to a literature that queries whether transition matters to transitional justice, but cases like BNP Paribas add a new angle to those perspectives. In a conversation I had recently with the leading Argentine prosecutor of dictatorship-era crimes, he explained that as far as he could tell, the transition only implicated a particular cadre of political elites: “as for the businesses that supported the dictatorship, they remained the same before and after the transition.” If corporations are merely auxiliary to brutal authoritarian rule, this commercial continuity across political transition is probably less problematic, but if businesses enjoy a major share of power in affected communities, political regime change may not constitute a transition sufficient to move us into an analytically separate justice paradigm. Thus, for the businesspeople, it can be unclear what moral work the transition does in militating for or against their accountability.

I hope some of the foregoing provides useful food for thought, albeit from a relatively non-traditional vantage point. Without doubt, Professor Murphy’s rich and important book will animate discussions such as these for decades to come.

Defining the Field and its Moral Challenge


Laurel E. Fletcher is Clinical Professor of Law at UC Berkeley, School of Law where she directs the International Human Rights Law Clinic. Fletcher is active in the areas of human rights, humanitarian law, international criminal justice, and transitional justice. As director of the International Human Rights Law Clinic, she utilizes an interdisciplinary, problem-based approach to human rights research, advocacy, and policy. 


Colleen Murphy’s book “The Conceptual Foundations of Transitional Justice,” offers firm intellectual footing to transitional justice, a field that suffers from contested assumptions about what underlies its essential goals and methods. The question is will the book succeed in inducing practitioners, policy makers, and scholars to adopt Murphy’s theory of transitional justice, a moral theory based on relational transformation? Such adoption would in turn lead to different approaches to transitional justice and challenge our current strategies.

The United Nations has legitimated and defined transitional justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”[1] However, this broad definition tells us little about what specific outcomes these interventions are supposed to achieve: what is accountability, justice, or reconciliation? Moreover, what are the principles that should guide interventions, and how we can discern whether we are getting closer to a desired end state? These shortcomings are symptoms of a field plagued by under-theorization and no agreed-upon theoretical foundation on which to develop a transitional justice framework.

The lack of theoretical grounding can be traced, in part, to the manner in which transitional justice developed. The field grew as primarily a legal response to the political question of how new governments succeeding repressive or authoritarian regimes in Latin America and eastern Europe, respectively, should address the mass human rights violations committed by a prior regime? Geopolitical trends – the end of the Cold War – opened up space for human rights claims of accountability for perpetrators and justice for victims to be realized. In remarkably short order, “accountability” and “justice” displaced amnesty for dictators and warlords and became the politically hegemonic defaults for addressing mass abuses.

Leveraging transitional justice as a rallying cry, advocates across diverse and varied contexts demanded action. The frame of transitional justice united calls in Spain to provide justice to victims of political violence of the Franco regime with demands to initiate international prosecutions during active conflicts in the Great Lakes region with grassroots efforts to promote reconciliation for racial violence in the United States. When I served as an Editor-in-Chief of the International Journal of Transitional Justice, I was struck continually by the diverse cases that authors argued qualified as falling within the rubric of transitional justice. But the capacious UN definition of transitional justice, while globalizing the field and swelling its ranks of adherents, creates other problems. Can what we consider to be appropriate responses to egregious violations that arise in vastly different contexts be universalized in any meaningful way?

Murphy makes the case that the answer to this question is a qualified “yes.” Approaching the question from the perspective of moral philosophy, Murphy investigates how to evaluate the justness of the legal responses that societies make to respond to past violence and repression. She asserts that the question of whether a response is “just” is context-specific, and therefore in order to answer what justice looks like in transitional contexts, we must first know what demands transitional justice needs to satisfy. In transitional settings, according to Murphy, the central moral problem that justice must address is societal transformation. Societal relationships have been distorted by pervasive structural inequality and normalized collective wrongdoing. The correct moral response, she argues, is to reestablish reciprocal relations between state officials and citizens based on fulfilling mutual duties based on respect for human agency and rule of law. Thus, she argues, her positive moral theory of transitional justice is capable of guiding legal responses to achieve the unique justice requirement in transitions.

Because her moral theory is premised on the assumption that transitional justice is distinct from other forms of justice, Murphy develops a model to define the characteristics, and therefore the parameters, of transitional justice. She argues that transitional justice is a morally required response to situations in which four conditions are satisfied: (1) pervasive structural inequality exists; (2) normalized collective and political wrongdoing occurred; (3) there is serious existential uncertainty that a transition to democracy will occur; and (4) there is uncertainty about the trustworthiness of authority, e.g. the state is complicit in the wrongdoing. Under these conditions, Murphy argues that conventional theories of justice do not apply because retributive, restorative, and distributional theories of justice assume a background of a stable democracies. In stable democracies, the fundamental problem justice for a single murder must address is retribution for the perpetrator. In transitional justice, for example where the State committed genocide, the fundamental justice challenge is not delivering just desserts to wrongdoers but transforming society.

In developing her theory, Murphy addresses several preoccupations of transitional justice scholars and practitioners. First, there is a widespread understanding among adherents that transitional justice responses have to include retrospective and prospective dimensions. Accountability for perpetrators of widespread and severe wrongdoing is needed. But to stop abuses from recurring, societies need to solidify rule of law based on respect for human dignity. Second, there is an increasing awareness that structural marginalization and discrimination are drivers of mass violence and abuses and therefore post-conflict responses must include rectifying these problems. Third, there is an emerging consensus that transitional justice requires a holistic approach. No single mechanism or program will be sufficient to resolve the myriad harms caused by past episodes of widespread violations. Murphy unifies these concerns into a single moral frame in which legal interventions are directed at societal transformation.

In synthesizing these strands, Murphy makes an important contribution. By reframing justice away from legal accountability and toward the evaluation of legal responses based on their contributions to reforming political relationships, both between citizen and state and among citizens, she moves past the increasingly unsolvable debates that have preoccupied the field. These debates have focused loosely around two sets of questions. One set of questions concerns the appropriate balance among the legal duties to accountability, truth, reparations, and measures of non-recurrence. The second set of questions focuses on the value of any particular perspective—law, culture, power—to guide thinking about the goals, methods, and processes of transitional justice. Neither set of issues is settled and often there is cross-talk between these sets of questions, which confuses matters further.

In other words, Murphy’s argument switches our attention. If the central goal of transitional justice is to transform political relationships, we ask different questions of legal interventions than if we assume that the “justice” of transitional justice is equated with retributive justice criminal prosecutions, or restorative justice or truth telling, etc. If we focus on realizing the moral commitment to achieve relational transformation we might ask instead: What might it take to restore public trust, establish reciprocity and respect of individual agency between state officials and citizens? The answers might include legal measures but would likely extend far beyond.

Her case studies of Uganda and the former Yugoslavia illustrate the conceptual blind spots of conventional forms of transitional justice to promote societal transformation. Justice in these cases was not just because legal interventions did not attend to the moral relationship of the State to victims, and to perpetrators. But, as she admits, her moral theory supplies conceptual tools for considering and evaluating legal interventions rather than a blueprint for policy prescriptions.

Nevertheless, Murphy’s moral theory does have practical implications. It demarcates transitional justice cases from other cases of injustice that deserve attention. Not every case of mass violence that has been incompletely addressed in the eyes of victims can be converted into a case requiring “transitional justice” by claiming that society has failed to reckon with its past. For example, cases of historical injustice in stable democratic regimes (e.g. abuses under the Franco regime or slavery in the United States) fall outside of Murphy’s theory because the state is no longer “in transition.” Democracy is in place. There may still be lingering ‘injustices’ but these do not require societal transformation of relationships that Murphy’s moral theory requires.

Defining parameters for transitional justice is courageous because it narrows the field and the number of stakeholders invested in it. Another ramification is to discipline the enterprise of transitional justice by establishing parameters around what values are legitimate to pursue and through what methods. If Murphy’s theory is adopted, it would reorient the field away from questions of legal accountability and toward a focus on questions of the nature of moral relationships between citizens and the state.

Without a firm grounding in theory, transitional justice risks becoming a slogan to be manipulated by any number of actors. To defend the field, we need to know what is unique about society’s need to respond to mass violence and to refine what form of justice society is called up to do in those instances. Whether Murphy’s argument succeeds to reshape the field is unclear. However, her argument invites and deserves important debate. The Conceptual Foundations of Transitional Justice deserves to be read.

[1] Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 23 Aug. 2004, S/2004/616, Para 8.

Practical Reflections on Conceptual Foundations


David Tolbert was appointed president of the International Center for Transitional Justice in March of 2010. Previously he served as registrar (assistant secretary-general) of the Special Tribunal for Lebanon and prior to that was assistant secretary-general and special expert to the United Nations secretary-general on United Nations Assistance to the Khmer Rouge Trials.

Roger Duthie is Director of Research at ICTJ, where he has managed research projects examining how transitional justice relates to education, forced displacement, and development. His publications include Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies (2017, co-edited with Paul Seils); Transitional Justice and Education: Learning Peace (2016, co-edited with Clara Ramirez-Barat); Transitional Justice and Displacement (2012); and Transitional Justice and Development (2009, co-edited with Pablo de Greiff); as well as articles published in the International Journal of Transitional Justice and the International Human Rights Law Review. 


In The Conceptual Foundations of Transitional Justice, Colleen Murphy develops a theoretical framework for understanding the conditions, objectives, and processes of transitional justice. It is a very interesting and useful contribution to the literature on transitional justice. The author’s approach is to initially take a step back from questions of transitional justice measures and processes (the focus of most practitioners) and pose more fundamental inquiries: Under what conditions do the need for transitional justice arise? What problem or issues is transitional justice addressing? How does it respond to that problem? In doing so, the book helps us to rethink how we—practitioners, interested parties, and scholars—can more coherently, effectively, and justly respond to past wrongdoing.

Murphy posits transitional justice as a singular or separate type of justice. She argues persuasively that transitional justice is not simply a refined version or combination of retributive, corrective, and distributive justice, but is a different kind of justice, which focuses on specific problems and offers normative guidance on how to respond to those problems. Central to Murphy’s understanding is the transitional nature of the context in which societies address wrongdoing, which she finds as necessary for defining transitional justice. In her view, it is not the achievement of transition that is needed, but rather the aspiration to end conflict and replace repression with democracy; at the same time, however, it is also Murphy’s view that not all cases commonly labeled “transitional justice” should in fact be included in the category. While positing democracy as the end goal of transitional justice is widely shared by victims and practitioners alike, this is often a long-term goal. Moreover, the content and understanding of democracy varies widely.

The book identifies four conditions or circumstances that are necessary to give rise to the specific problem that transitional justice is to address. The first condition is pervasive structural inequality, which refers to the illegitimacy of the institutional rules and norms shaping interaction among citizens and between citizens and officials. The second is normalized collective and political wrongdoing, in which violations of human rights have become basic facts of life through different forms such as centralized repression or symmetrical or unstructured violence. The third and fourth conditions are serious existential uncertainty, referring to the very unclear trajectory of a political society, and fundamental uncertainty about authority, or the standing of a political regime to rule and enforce rules.

There are two particularly important points about these conditions for the book’s argument. First, the different conditions affect each other: pervasive structural inequality, in particular, is empirically correlated and mutually reinforcing with normalized wrongdoing, and it is also necessary for existential uncertainty. “Particular incidents of violence are part of a broader pattern of interaction designed to entrench and reinforce pervasive structural inequality,” Murphy writes. “Such wrongdoing needs to be seen against the background of pervasive structural inequality, and as intended to reinforce and be justified by that inequality” (page 103). As she put is, “background injustice is the subject of transitional justice” (page 95). This means that it is not reform of institutions and norms that is needed, but transformation. Second, the uncertainty about the nature and direction of a political order highlights the importance of identifying how different factors may affect outcomes: how does one determine how to bring about the transformation that is needed?

For Murphy, then, the core moral question for transitional justice is how to justly pursue societal transformation. How does a society transform the structure of political relationships so that it is based on respect for agency and reciprocity? As she notes, in this context transitional justice can be linked to reconciliation, or more aptly improving damaged relationships, a subject on which she has written a separate book. In this book, Murphy argues that such a transformation depends on establishing respect for rule of law, a certain extent of relational capabilities, and reasonable political trust, and that transitional justice can contribute to this transformation in direct and indirect ways—for example, by acknowledging the need for change and giving people hope that such change can in fact come about.

The book also contends that specific transitional justice processes should constitute fitting and appropriate responses to victims and perpetrators of past wrongdoing. The processes should, in other words, respect the core moral claims associated with being a victim or a perpetrator of wrongdoing. This, she suggests, can be assessed by taking into consideration the moral aims of the response, including repudiation, accountability, acknowledgment, recognition, reparation, and non-recurrence; the relationship between the responder and the subject of the response; the nature of the wrongdoing, in that it should deal with actual harms and respect due process; and the cultural norms and consequences of the action. Furthermore, responses to wrongdoing should be holistic, in that they should be multiple and coordinated, because, among other reasons, no single response can achieve the relevant moral aims, while the expressive meaning of each response is shaped by other responses.

The short case studies in the final chapter focus on the Ugandan amnesty commission and the International Criminal Tribunal for the former Yugoslavia. If the point of these examples is to show the inherent limitations of single responses, however, these seem unusual choices, as an amnesty body and an international tribunal bring with them a whole set of issues that most national-level transitional justice processes do not necessarily have to deal with. Furthermore, while not disagreeing with Murphy’s assessment of the flaws of these processes, it is important to note that some flaws are inherent limitations of the type of response, and some flaws are correctable or avoidable process issues. Moreover, given the limitations of each specific process, they will only address certain issues; thus, the question may be one of overall design or political will rather than the mechanisms themselves, which are established for particular purposes. As she points out, no program of reparations in Uganda could have dealt with the layered harms and social consequences experienced by victims, for example, but courts can take steps to be less removed from local populations.

Interestingly, the book explicitly does not examine in detail specific responses to wrongdoing, or the contribution that such responses may make to societal transformation or the moral claims of victims and perpetrators. As the author explains in her conclusion that this is because she believes our understanding of the moral functions, impact, and expressive meaning of such responses is limited, and that more research is needed before such a discussion should be had. Furthermore, with this book Murphy writes that she wants to encourage societies to expand the range of responses to wrongdoing that they consider, and discussing specific existing responses—which, it is true, tend to cluster around criminal prosecutions, truth telling, reparations, and certain kinds of institutional reform—may reinforce what exists now as the full range of options. She points to areas such as art, theater, and television, debt forgiveness and land redistribution, and education as potentially important responses to wrongdoing that may fall outside the current set of measures generally considered transitional justice.

In this, she echoes a 2015 report of Pablo de Greiff, UN Special Rapporteur on truth, justice, reparation, and guarantees of non-recurrence, emphasizing the relevance of non-institutional responses in the realm of the cultural and the individual in preventing the recurrence of violations.[1] Also relevant is the notion of “transformative justice,” which some argue would target the structural causes of human rights violations more directly than transitional justice. Murphy does not address this notion explicitly, but she is similarly arguing for an expanded response to broad injustice, although it seems within the concept of transitional justice rather than within a new notion. Either way, the argument raises significant questions about the distinction and relationship between responses to human rights violations and processes such as development and peacebuilding. As the book notes, ICTJ has conducted research on education as an important part of the way in which societies respond to wrongdoing, although without necessarily explicitly categorizing educational initiatives as transitional justice.

The book also makes an interesting argument regarding the requirements for transitional justice to be considered just. Drawing on the structure of just war theory, which requires that armed conflict satisfy both requirements of jus ad bellum and jus in bello, Murphy argues that in order to be morally defensible, responses to past wrongdoing must satisfy two requirements: a morally permissible objective, in that they must contribute to societal transformation; and a morally permissible manner, in that they must be fitting and appropriate, as discussed above. She acknowledges that the just nature of different responses is scalar—that is, they can be assessed as being more or less just.

Murphy’s argument that pervasive structural inequality is so integrally connected to normalized wrongdoing is persuasive that transforming political relationships should be an equally integral element of transitional justice. However, the claim that responses to wrongdoing necessarily fail to be just if they do not contribute to societal transformation seems debatable and run counter to some of Murphy’s own argumentation. As she acknowledges, to see transitional justice as only instrumental is problematic: claims for transitional justice “have an independent, non-instrumental moral importance. To regard wrongdoing as valuable only instrumentally is insulting to victims and insufficiently respectful of the agency of perpetrators” (page 114). If responses to wrongdoing that respect the moral claims of victims and perpetrators have an independent moral importance and therefore should not be seen as having only instrumental value, why then must they also be instrumental in order to be just? One can argue that responses that are not instrumental to societal transformation may not qualify as transitional justice, according to Murphy’s conceptualization of the notion, but they can still be morally defensible and just, can they not?

The book also makes a compelling case that democratization is a necessary part of the societal transformation to which transitional justice can contribute. This will be contested by others, but it seems reasonable to argue that democracy is necessary for the establishment of political relationships among equals based on the values of reciprocal agency, which is necessary in turn for the protection of fundamental human rights and the prevention of the recurrence of normalized wrongdoing. One can ask, however, that if democracy is necessary to societal transformation, then why is peace not? Is peace not necessary for the protection of fundamental rights? Murphy does discuss transitions out of conflict, and specifically notes that the cessation of violence can contribute to giving hope to people that change is possible. But she does not explicitly make the case that the prevention of the recurrence of armed conflict should be considered a necessary part of societal transformation from a justice perspective.

While the book does focus on conceptual and, in some sense, scholarly issues, it also will be useful to practitioners. Many of the issues that have been surfaced by Murphy are ones that we, as practitioners, face on the ground. For example, issues of marginalization and of economic exclusion and of the goal of democratization are important elements in our work. In some cases, they are not thought through as thoroughly as we would like. This book helps provide a framework for those kinds of discussions, which helps practitioners find practical solutions.

[1] UN General Assembly, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, UN Doc. A/HRC/30/42, September 7, 2015.

New Symposium: The Conceptual Foundations of Transitional Justice


Colleen Murphy has written an excellent and important book, entitled The Conceptual Foundations of Transitional Justice (CUP, 2017), that a distinguished set of scholars from a range of disciplines begins to discuss. The rise of Transitional Justice as a distinct field over the past several decades has enjoyed much excellent literature, but Colleen Murphy’s new book is among the first to offer a dense philosophical account of the field. Necessarily, this account will hold much of interest to scholars from philosophy, but it will also have implications for international lawyers, criminal law theorists, international criminal lawyers and human rights scholars. This blog also seeks to showcase groundbreaking, normatively creative new works that reach a broad array of scholars and practitioners alike, and this book certainly meets that mark. The Conceptual Foundations of Transitional Justice will, no doubt, be a major contribution to the field and discussed for decades to come, so it is a great pleasure to begin those conversations with an expert cast of highly accomplished scholars and leading practitioners.  

I will not provide a detailed overview of the book except to highlight important themes.  In Chapter 1, Murphy starts be plotting the circumstances of transitional justice, which she argues demonstrate four elements. Justice in transitional societies is different in type because these societies experience all of the following: (a) pervasive structural inequality; (b) normalized collective and political wrongdoing; (c) serious existential uncertainty; and (d) fundamental uncertainty about authority. In Chapter 2, Murphy argues that ordinary ideas about retribution, corrective justice, and restitution do not cater to the needs of societies undergoing transition according to her definition. These segments of the book are richly informative about both the political context of transitional society, and their intersection with philosophical bases for different theories of justice. The resulting account rejects Posner and Vermeule’s notion that Transitional Justice is just like ordinary justice, positing the existence of a conceptually self-contained set of principles governing the field. In Chapter 3, Murphy provides a substantive account of societal transformation, drawing on relational transformation, rule of law and relational capacities. In Chapter 4, she highlights constraints on this transformation, based on whether Transitional Justice initiatives are “intrinsically fitting or appropriate as a response to victims or perpetrations of wrongdoing.”  

I am excited to host a range of leading experts from a variety of fields.  Roger Duthie and David Tolbert are the Director of Research and President of the International Center for Transitional Justice respectively, an organization which works with victims, civil society, and national and international organizations within countries that have endured massive human rights abuses. Duthie and Tolbert provide fascinating commentary on the book through the lens of the ICTJ’s active work.  Laurel Fletcher directs the International Human Rights Law Clinic at UC Berkeley, School of Law, adopting an interdisciplinary, practical approach to human rights issues.  Fletcher’s contribution speaks to the lack of theoretical grounding in the field of transitional justice up until now, and what impact the adoption of a moral philosophy might have.  The work of Nir Eisikovits of University of Massachusetts Boston focuses on philosophy and applied ethics, in particular the ethics of war and political philosophy.  He describes Murphy’s book as “the best, most ambitious philosophical account of transitional justice” he has ever read and points to important implications arising from it. And last but not least, Steven Ratner at University of Michigan Law School focuses on Murphy’s call for “an original methodological hook for analyzing the justice of a state’s transitional justice choices,” exploring the legal ramifications of Murphy’s theories.  My own comments offer thoughts about compartmentalizing transitional justice, using cases against foreign businesses as a vantage point.  

As an ensemble, I hope the resulting body of perspectives showcases this important work and offers fresh ideas for future thinking.  

Beyond Customary International Law: What Jesner Can Learn From Corporate Criminal Liability for International Crimes


This piece is a cross-post from an article written for Just Security as part of their series on the U.S. Supreme Court case Jesner v. Arab Bank (see here).  Franziska Oehm is a PhD candidate at the University of Erlangen-Nürnberg.  Her research focuses on the intersection of human rights protection and corporate liability in international and transnational criminal law.


In recent years, several national jurisdictions have commenced formal criminal investigations involving corporate criminal liability for international crimes. These new cases shed light on a legal approach the U.S. Supreme Court could, and arguably should, emulate in Jesner v. Arab Bank.

In earlier work, one of us wrote a normative comparison between the ATS in the United States and corporate criminal liability for international crimes in a range of different jurisdictions around the world. This comparison suggested that although the criminal law certainly has an important set of its own downsides vis-à-vis civil liability, it could offer a smoother way through many of the recurrent problems that have plagued the ATS. That study also emphasized the possibility of synergy between the two regimes, as a matter of both law and enforcement policy. In what follows, we explore one area of law that could operate in this synergistic fashion. We argue that corporate criminal liability for international crimes in national legal systems reveals a legal approach the US Supreme Court might also adopt for ATS cases, thereby harmonizing judicial approaches to corporate responsibility in both fields.

The recent cases we point to show how corporate criminal liability is drawn from national law, even when this local notion of corporate liability couples with an international crime defined in customary international law. Thus, if corporate criminal liability for international crimes is not itself enshrined in customary international law, trying corporations for these offenses nationally is dependent on the ability of domestic legal systems to extend their own law beyond the bounds of international custom. In this sense, corporate criminal liability for international crimes vindicates Judge Leval’s reasoning in the Second Circuit decision in Kiobel v Shell and the contention within the Amicus Brief of International Law Scholars, that “customary international law generally leaves questions of enforcement to the decision of states.”

Below, we highlight the different ways states achieve corporate criminal liability for international crimes in light of this freedom, then provide examples from recent cases.

Before we embark on this undertaking, we offer two preliminary points that set the scene. First, there is no doubt that the absence of corporate criminal liability in statutes of international criminal tribunals says little about its availability under customary international law. Like corporate criminal responsibility, the crime of aggression is conspicuously absent from the statutes of modern international courts, but this fact alone does not undermine its existence in custom. Second, we do not address the various manifestations of a growing recognition of corporate criminal liability in international law, which have been well set-out by others in this blog series (see hereand here). What follows does not depend on custom, so we do not broach those subjects.

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There are three dominant methodologies by which corporate criminal liability for international crimes is achieved, each of which depends on the idea that the means of enforcing customary international law is largely left to states. Each of these methodologies relies on legislative provisions that make the coupling between corporate criminal liability and international crimes explicit to varying degrees, and each dispenses with customary international law entirely. Consequently, this reality points the US Supreme Court away from custom in deciding Jesner, towards garden-variety principles of corporate liability in U.S. federal law.

First, a large number of states that have adopted a comprehensive criminal code dedicate a specific provision within these codes to corporate criminal liability, before going on to prohibit international crimes in subsequent sections. In Australia, for example, the Commonwealth Criminal Code of 1995 in § 12.1(1) first states that “[t]his Code applies to bodies corporate in the same way as it applies to individuals,” then explicitly lists the full panoply of modern international crimes barring only aggression. In Europe, half of the national legal systems allow corporations to be convicted of all crimes announced in the criminal code, because these states deliberately decided to construct a concept of corporate criminal liability that applied to all criminal offences (see here, p. 40-41). To the extent that international crimes are brought into the system too (in ways broadly analogous to the hook created by the ATS), these international crimes can couple with pre-existing, general notions of liability like corporate criminal liability. By this legislative method, national criminal law is employed to construct the basis of liability irrespective of the status of corporations in international criminal justice generally and customary international law in particular.

Second, a range of states create corporate criminal liability within their criminal codes, then specify a limited subset of criminal offenses that corporations can commit. Whereas the blanket approach above implicitly extended corporate liability to all crimes, some states make this extension explicit to international crimes and not others. To illustrate, nine European states depart from the blanket approach mentioned immediate above where corporations can be prosecuted for all crimes within a criminal code by designating a circumscribed class of criminal offenses that corporate actors can commit. Three of these explicitly extend corporate criminal liability to “crimes within the jurisdiction of the International Criminal Court” (see (see here, p. 41). By this method, too, corporations can be held criminally responsible for international crimes without engaging in the contested disputes about the existence of corporate liability in customary international law that have hampered a significant strand of ATS caselaw. Admittedly, these examples represent just a small fraction of the world’s legal systems, but the method illuminates a path the Supreme Court should arguably follow.

Third, in a slightly more circuitous route, another group of jurisdictions have promulgated separate legislation mandating that the term “person” (or its equivalent) be read as including both natural and legal persons in all other legislative enactments. In the United States, for instance, § 2441(a) of the War Crimes Act stipulates that “whoever” commits a war crime is subject to criminal punishment including fine, imprisonment and death. The Dictionary Act of 2000 states in § 1 that “[i]n determining the meaning of any Act of Congress… the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Once again, whether these sorts of couplings are sufficient to establish corporate responsibility for international crimes likely turns on questions of domestic law, not on whether that coupling already exists in customary international law. Indeed, customary international law often develops based on these sorts of progressive codifications in national systems.

While this typology is relatively abstract, the following are concrete examples of how it has played out in three different jurisdictions.

In 2010, a criminal complaint was filed in The Netherlands against the company Riwal for war crimes and crimes against humanity pursuant to the Geneva Conventions and the Dutch International Crimes Act (Wet Internationale Misdrijven, WIM) by the human rights organization Al-Haq in cooperation with Böhler Advocaten. Drawing on the International Court of Justice’s advisory opinion, Riwal was accused of participating in the construction of the Israel-Palestinian Wall as well as in the construction of a settlement in the West Bank. As mentioned, the war crime involved in the accusation was drawn from the Dutch International Crimes Act, which did not itself contain a provision on corporate criminal liability nor make any claim to reflecting customary international law. Nevertheless, Article 51 of the Dutch Penal Code contained a corporate criminal liability provision applicable to all crimes within the Dutch Kingdom, including the WIM crimes. As a result of this legal approach, a corporation could be the subject of a formal investigation for international offences. That the case was, rightly in our view, ultimately dismissed, does not change the fact that national law and not customary international law furnished the legal basis for initiating a proceeding geared at holding a corporation responsible for international crimes.

A recent case in France reveals a similar logic. In November 2016, members of two civil society organizations filed a criminal complaint against the multinational cement Lafarge and some of their businesspeople for complicity in a range of crimes, including war crimes and crimes against humanity in Syria. The pleadings allege that Lafarge entered, via intermediaries that it hired, into negotiations with ISIS to purchase ISIS-controlled raw materials such as oil and pozzolana. In addition, the complaint alleges that Lafarge paid large amounts of money to ISIL to cross checkpoints. If we use the allegations of war crimes in the case as an example, these were only recently inserted into the French Penal Code by way of legislation in 2010, when France finally overcame its famous reticence about these offences as a matter of internal law. Importantly, the relevant provision now enacted criminalizes “violations of the laws and customs of war or international conventions applicable to armed conflict” (our translation and emphasis). Thus, Article 121-2 of the French Penal Code, which is again a general concept of corporate criminal liability, is used to couple with a war crime derived from custom. Here again, national law created the corporate responsibility whereas customary international law furnished the underlying offense.

Finally, the Argor-Heraeus case in Switzerland is also instructive. In October 2013, a group of civil society organizations filed a suit against the Swiss gold refinery Argor-Heraeus, alleging money laundering and complicity in pillage of Congolese gold. According to the complaint, the company was criminally liable for having violated a provision in Swiss law stipulating that “whoever has contravened provisions of international conventions governing the conduct of hostilities,” and importantly, “whoever has violated other recognized laws and customs of war,” shall be punished with imprisonment (our translation and emphasis). Because pillage is a war crime derived from treaty and customary international law applicable in non-international armed conflicts, combining this provision of the Swiss Criminal Code governing corporate criminal liability could create corporate responsibility for a war crime. On this basis, a Swiss Federal Court ordered police to search the company’s premises for relevant evidence. Although the case was later dismissed (for factual reasons some have questioned), the underlying legal argument is relevant to Jesner. Here again, the international crime was located in international law (treaty or custom), but the existence of corporate criminal liability in either of those international law sources was irrelevant; corporate criminal liability is borrowed from the general part of Swiss national criminal law. National law is again the relevant inquiry, not customary international law.

*                                  *                                  *

A comparison between ATS and corporate criminal liability for international crimes has obvious limitations, but hopefully, it highlights how (a) national law provides the legal basis for enforcement against corporations when customary international law is silent on that score; and (b) national systems can create enforcement mechanisms that outstrip customary international law, including on issues of corporate responsibility for international crimes. Thus, these examples provide another example, albeit in a sister field, supporting the argument contained in the Amicus Brief of International Law Scholars and the Second Circuit decision in Kiobel v. Shell that states independently decide on matters of international law enforcement. If this approach is unequivocally true of corporate criminal liability for international crimes, should it not also hold in cases involving civil liability for violations of the laws of nations under the ATS?

An Open Invitation to Further Debate (Instead of an Amicus Brief)


In organizing this mini-symposium, I sought to engage expert reactions to my paper from a range of legal systems that have not featured in debates about forms of attribution in ICL. When international courts and tribunals construct(ed) these forms of attribution, they initially drew heavily on Anglo-American jurisdictions, adopting concepts like superior responsibility and joint criminal enterprise from them. Then, judges at the ICC announced a major swing towards notions of criminal responsibility derived from German criminal law, including co-perpetration, theories of control to distinguish perpetration from complicity, indirect co-perpetration and even perpetration through an organization to treat those doing the bloodletting and their masterminds as perpetrators. Throughout this process, nobody appears to have asked experts in systems that adopt a unitary theory of perpetration, which dispenses with all these doctrines, to reflect on the law within their own countries and its potential as a solution to recurrent problems with blame attribution in ICL. This silence has been quite strange, especially when the Nuremberg Tribunal applied a unitary theory of perpetration and several modern ICL judges have argued that the current complexity is unnecessary.

This mini-symposium has broken new ground in this regard, in ways that I hope sets the scene for further scholarly research and debate. I was especially grateful that a range of criminal law theorists from each of the countries I write about in the paper agreed to criticize the paper, and that some very prominent practitioners joined the fray to offer their reflections too. As is evident from this blog’s manifesto, I deliberately seek to create dialogue between theorists and practitioners, so I am thrilled that this discussion has involved members of both groups. Some of the feedback I received was striking—during the course of this online symposium, a senior prosecutor at one international court and a defense counsel for a well-known defendant at another emailed me saying they wholeheartedly agree with the need for a unitary theory. The latter even suggested that I file an amicus brief calling on one particular tribunal to revert to the unitary theory of perpetration adopted at Nuremberg. I politely declined, but decided to open up this final post to whomever wanted to share an opinion one way or the other, provided that it respected the strictures of the blog’s manifesto.

Instead of defending the unitary theory of perpetration or either of the article’s I’ve written about it (see here and here) in this post, I use this opportunity to set the scene for an open online discussion at the base of this post by reiterating what a unitary theory is and by summarizing the excellent posts that appeared in this symposium.

To begin, let me again highlight the three main variations of the unitary theory of perpetration to avoid commentators speaking past one another. The unitary theory of perpetration comes in three principal varieties, although some might contest whether the third species really fits within the genus. The first, known as a pure unitary theory, treats a causal contribution to a crime coupled with the requisite blameworthy moral choice announced in the criminal offence charges as necessary and sufficient elements of responsibility (excuses and justifications aside). On this view, the various forms of participation that exist in current ICL (aiding and abetting, JCE, co-perpetration etc.) are stripped of their autonomous existence and folded into a more capacious single notion of attribution. So, instead of attempting to manufacture fine-tuned rules that define JCE, aiding or any other form of participation in such and such a manner, a unitary theory of perpetration places them all in a big pot, then boils them all down to their shared normative essence. Through this distillation, blame attribution involves deciding whether accused X is responsible for crime Y based on settled core principles that pay no regard to the form participation takes, leaving their moral significance to be assessed post hoc by judges at the sentencing phase of a trial.

The second variant provides more detail without compromising the unitary theory’s core commitments. Known as a functional unitary theory, this iteration provides more guidance while insisting that causation and the mental elements announced within the criminal offense charged are necessary and sufficient bases for establishing wrongdoing across all forms of participation. To ensure that would-be criminals are sufficiently forewarned of their exposure to criminal law penalties, a number of states adopt this variant of a unitary concept—the general part of a criminal code or legislation articulates the different forms of causal connections that might apply within a unitary framework. In this sense, responsibility might involve carrying out the offence personally, instructing others to do so, providing necessary assistance, or furnishing assistance that is readily available elsewhere. Each of these forms of causation is announced within the law so as to inform the public of how they might attract criminal responsibility, but the underlying objective and subjective elements beneath these descriptions remain the same.

Third, some argue that subjecting accomplices to the same range of punishment as perpetrators also constitutes a weak type of unitary theory. In Germany (and the many jurisdictions that follow its example), aiders and abettors are sentenced to a maximum of three quarters of the penalty for the offense they facilitate, whereas the sentence for instigators is taken from the same sentencing range as principals. To a large extent, this discrepancy in maximum sentence drives the need for differentiating between perpetrators and accomplices, even if, as Markus Dubber has observed, “[r]emarkably little effort is spent on justifying this differentiation”.[1] Nonetheless, this differentiated approach, whose purpose is partly to determine the applicable range of sentencing, generates a tendency to look upon systems that formally equate sentencing ranges for perpetrators and accomplices as soft iterations of the unitary theory. France and England, for instance, do just this. For my purposes, though, I do not consider this an example of the unitary theory because it places no restriction on the substantive elements of forms of attribution, whereas truly unitary theories do.

With the stage set, I next situate the various expert responses to this mini-symposium, grouping them into those who also advocated for a unitary theory in ICL, those who were more ambivalent about whether their national experience served as much of a template for ICL, and one who was positively unconvinced.

In the first of these categories, Judge Baragwanath’s excellent post reminded us that there are actually many jurisdictions that fit within variants two and three, even if they might not describe themselves as unitary theories of perpetration. My own country of origin, New Zealand, begins the provision governing parties to offences by stipulating that “[e]very one is a party to and guilty of an offence who,” before articulating different forms of participating in a consummated offence. Judge Baragwanath’s post is so useful because it not only highlights that New Zealand’s criminal law is, in important aspects, unitary, but it also shows how a series of cases in England, Australia and Hong Kong have been struggling with whether to tie mental elements in forms of participation to those in the offense announced in ways that mimic the unitary theory. Despite backsliding in some courts, there is a discernable modern trend in this direction. His post reminds me that the States of New York and California have an even more intense unitary theory of perpetration. In any event, in describing “modes of liability” as “unnecessary,” Judge Baragwanath argues that “international criminal procedure, already complex and expensive, adds to those problems by forcing itself to leap over self-created non-existent hurdles.”

Filippo de Minicis’ post is similarly minded. Filippo is a presently Legal Officer in the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia, but he was originally trained in Italian criminal law, which as I show in the article, also discarded a differentiated system of blame attribution in favor of a unitary alternative almost a century ago. Filippo argues that when looking at standards of attribution before ad hoc international criminal tribunals (i.e. in customary international law), there is “little difference in the required actus reus,” and “a sufficient homogeneity on the mens rea side.” Filippo concludes after a decade working with these standards that a unitary theory is both viable and preferable, but he is also circumspect about whether any theory is perfect and, as was the case with New Zealand, shows how Italy’s commitment to the unitary theory is not absolute since Italy too appends a type of common purpose doctrine that approximates to JCE. Reality, it turns out, is complicated. Despite this, Filippo joins Judge Baragwanath as an advocate for the adoption of the unitary theory in ICL.

Other commentators are more ambivalent. Professor Carlos Eduardo A. Japiassú, for instance, highlights how Brazil’s unitary theory has slowly changed over time, shifting from a pure version to a functional one (which he calls “mixed”). While Professor Japiassú also speaks of a certain legal conservativism in Brazil, which I take to imply a lack of desire to shift back to a differentiated system that employs different substantive tests for different stand-alone forms of participation, he ends by concluding that “it remains unclear whether a pure rendition of this theory or a mixed variant like that now applicable in Brazilian Penal Law is a good alternative for International Criminal Law or International Criminal Courts.” Similarly, Professors Iryna Marchuk and Jørn Jacobsen discuss important scholarly criticism of the unitary theory in Denmark and Norway respectively as well as partial retreats from it in recent doctrine, before also questioning their system’s value as an exemplar for ICL.

Finally, in the third category, Judge Albin Eser’s masterful critique exemplifies disagreement with the unitary theory. In many respects, his is a brilliantly concise defense of the structure of blame attribution currently in place in ICL and a deft rebuttal of the arguments in the paper. The series of questions he poses are skillfully listed as issues he would need to be convinced of to accept that a unitary theory is optimal. These start with the argument that different forms of participation actually better track real life, move to the idea that a unitary theory cannot justify why they are addressed at sentencing along, then shows how unitary theorist essentially overlook that these questions will arise at sentencing anyhow. Then, he argues that “the only practical advantage the unitary theory so far seems to offer is a procedural one,” but he sees no procedural advantage here either. Ultimately, he concludes by correctly pointing out that even if we do have a differentiated system of blame attribution in ICL because powerful western states forced it on others, this says nothing about the theory’s conceptual integrity. A unitary theorist would, of course, contest each of these steps, but Eser’s brilliant critique is a wonderful counterpoint.

So, instead of labouring my own perspective any further here, I make space for other scholars, experts and practitioners to weigh in on these debates, which strikes me as a better idea than filing an amicus brief. I have therefore opened this post to comments, and anyone can post their views directly. In order to help ICL practitioners share their views (I recall many hours debating these questions with colleagues in war crimes tribunals), I’d like to offer a procedure through which you can legitimately (I hope) bypass the need for institutional approval to publish. If your institution is agreeable, I will post thoughts and reflections from practitioners anonymously. I would not normally do this through the post, so if want to remain anonymous, please send me your comments by email at stewart@law.ubc.ca. Your email message to me should include your title and the institution you work for, but I undertake to keep this information entirely confidential, posting only your thoughts and reactions on this topic. For the rest of you, the post is open.

[1] Markus D. Dubber, ‘Criminalizing Complicity: A Comparative Analysis’, (2007) 5 Journal Int Criminal Justice 984 ff.

Questions From the Unconvinced


Albin Eser is Director Emeritus and Professor Emeritus of Criminal Law, Criminal Procedure, and Comparative Criminal Law with the Law Faculty of the University of Freiburg.  He was formerly a Judge at the International Criminal Tribunal for the former Yugoslavia.


To be satisfied with the unitary theory, you must be content with the most simple solution. In my view this is not the best approach to cope with the variety of social and criminal life. As soon, however, as you wish to pay attention to the varieties of the performances of crimes, you must be prepared to make differentiations – and this may unavoidably be a source for different demarcations. But even if this entails controversies, can this be a reason to sacrifice individual justice (by distinguishing between perpetration and participation) on the altar of (unitary) simplicity?

To become convinced of the latter alternative, I would like to have these questions answered:

  • Regarding the argument that the differentiation models would not correspond to real life, is this more the case if causation is considered the only basis of imputation, thereby ignoring any differences in the manner in which, and in the weight by which, a contribution is made to the performance of a crime?
  • And if there is a factual and social difference, as can hardly be denied if the view is not normatively and holistically preprogrammed, should this difference be paid attention to only at the sentencing stage or should it rather be expressed already in the guilty verdict?
  • And if only on the sentencing level, how and according to which criteria should this be done? This is a question, by the way, which is neither dealt with in your article nor are any suggestions by your proponents of the unitary theory visible.
  • If indeed, however, even the unitary theory cannot avoid taking notice of different types and manners in which a person can be involved in the performance of a crime, why couldn’t and shouldn’t this be made public in the verdict?
  • So the only practical advantage the unitary theory seems to offer so far is a procedural one: that the problem of recharacterization may be avoided. Yet, is this really the case if even according to the unitary theory differences in the crime performance are (to be) made at the sentencing stage? In a murder case, for instance, what could a defendant do if he had defended himself by merely involuntary having told where the victim might be met but finds himself sentenced to life imprisonment because of being proven to have been on the scene and directly involved in the killing? Could his appeal be rejected by simply referring to his causal contribution, thus rendering any differential circumstances irrelevant? Or shouldn’t it rather be in the interest of individual justice to assess the penalty according to the type and weight of his contribution? However, if he thus succeeded in getting his sentence adjusted to his minor contribution, as I think he should, could this be done without differentiations and recharacterizations? So what, in the end, is finally left of assumed procedural advantages of the unitary theory?
  • Regarding your references to political and ideological superpowers smaller countries were able to free themselves from by introducing the unitary theory, should such sovereignty aspects indeed play a role as to whether criminal theory is good or bad?