The “New Law” of Transitional Justice*

This paper asserts that the combination of peace agreement practice and legal developments have given rise to a “new law” of transitional justice. This “new law” draws on human rights law, humanitarian law, international criminal law and ordinary criminal law, but cannot be justified in terms of any one of these regimes on their own (and therefore remains controversial). The “new law” can be viewed as a new developing practice rather than a new law, but finds some basis in soft law standards that are emerging with reference to transitional justice, and in the practice of states and international organisations.

I open the chapter by “stating” this new law, and then examine where the “new law” can be backed up with reference to law and practice, illustrating its ambiguities and controversies. I then point to the difficulties of obtaining any further clarity, or resolution to these ambiguities and controversies, by recourse to the normative frameworks of human rights or humanitarian law. The chapter provides an assessment of the advantages and disadvantages of the “new law”, and considers whether it is advisable to try to clarify the new law's ambiguities through further legal standards.

Finally, the chapter concludes by suggesting somewhat provocatively that there is a certain attractiveness to the current state of legal uncertainty around transitional justice, in enabling both the assertion of an obligation to combat impunity, while leaving some scope for flexibility in peace negotiations.