On Transitional Justice

“Transitional Justice” is a concept and term coined by American academics in the 1990’s that was initially intended to be applied to post-Soviet leaders and states for war crimes and human rights abuses. It has in fact been applied in the case of certain Serbian leaders and others over the course of the last few decades. Transitional justice consists of an array of mechanisms and processes, ranging from truth commissions to broad investigations and even tribunals, according to what certain experts on the issue of transitional justice have said. To a large extent, transitional justice is the means by which a society transitions towards order, peace, and social tranquility after a history of war crimes, human rights abuses, and social disorder.

The formal legal bodies and institutions created under international law for the execution of transitional justice mechanisms and processes are the “International Criminal Court” (ICC) and the “International Court of Justice” (ICJ) at The Hague, Netherlands. The United States has refused to bind itself to the treaty which created the ICC (“Rome Treaty”), and it withdrew from the ICJ after it ruled that the U.S. military intervention in Nicaragua during the Cold War violated international rules and norms. But the UN Charter – which has purview over the ICC and ICJ – is an international treaty created and signed by the United States at the close of World War II. And according to Article Six of the U.S. Constitution, treaties signed by the authorities of the United States are the “law of the land” in the United States.

            Thus, by virtue of the UN Charter and Article Six of the U.S. Constitution, the United States is legally obliged to comply with the ICC and ICJ, in spite of its reluctance to do so. Moreover, transitional justice is interlinked and interconnected with the issue of change and reform in a society. Without transitional justice and accountability measures in response to the history of war crimes and human rights abuses perpetrated by individuals who once belonged to the state or are currently members of the state, change and reform cannot take place in a society because change and reform would mean holding those who generated the corruption and lawlessness which hindered and obstructed change and reform to account.

Afghanistan is a case in point. Because of a lack of accountability for war crimes and human rights abuses in the 1990’s by those who are currently in power, Afghanistan is essentially back to square one in the sense that the Taliban are growing in power and can possibly displace the incumbents within a matter of time, as they did in the 1990’s after Afghanistan’s four-year civil war between 1992 and 1996. Also, in reaction to decades of a policy of global hegemony in the United States, the Trump movement – like the Taliban in Afghanistan – can upset the political and social order in the United States yet again if the right accountability and transitional justice measures are not taken against the handful of individuals who instituted the policy of global hegemony, which is in fact a direct violation of international law.

The intent behind international law is the prohibition of global hegemony, as demonstrated by the “Treaty of Westphalia” (1648) after Europe’s “Thirty Year War,” along with the “Congress of Vienna” (1815) after the Napoleonic experience and the UN Charter (1945) after the experience with Hitler. Global hegemony led to Donald Trump, and Donald Trump made a name for himself by calling for a “9/11 Truth Commission,” which insinuated that government officials during the Bush 43 Administration used 9/11 as a pretext for their illegal foreign policy based on global hegemony, in addition to suggesting that George W. Bush was responsible for allowing 9/11 to happen. Trump was also a vocal critic of perhaps the biggest folly in the history of U.S. foreign policy, namely, the 2003 invasion of Iraq.

As a result, if there is a failure to address the issue of accountability and transitional justice for a policy of global hegemony that contravenes international law at a state level and in a domestic setting in the U.S., someone else will perhaps emulate Trump and will take advantage of the state’s failure to address this issue either for personal gain or through a sincere commitment to accountability and transitional justice. Policy has to conform to law, not vice versa. Moreover, in 2020, the ICC gave the green light to prosecutors to investigate Afghanistan war crimes by all the parties involved, which can lead to bigger transitional justice outcomes in the future.

There is also the balance of power principle which determines whether the individuals who are in power or were once in power maintain it, which is unlikely given that the balance of power always moves like a pendulum. Moreover, the proverbial “Damoclean Sword” always puts those in power — along with those who are associated with power — in a precarious state. Thus, the balance of power is primarily psychological in essence and nature. In sum, however, the goal of international society is global order and peace. And global order and peace is predicated upon two things, namely, the balance of power principle and the application of international rules, laws, and norms through the balance of power. But overall, either a political settlement between East and West stabilizes the pendulum at a point of equilibrium, or the balance of power pendulum gradually swings in favor of the East after approximately 500 years of Western hegemony over the international system.

Transparency as to why accountability and transitional justice measures are not being taken by the state is the first step towards change and reform. The second step is scrapping the policy of global hegemony altogether. Thus, transparency and a policy shift away from global hegemony are the initial steps towards broader changes and reforms in a society. The irony is that the concepts, expressions, and terms created and used by individuals who advanced a policy of global hegemony for years (i.e., “Patriot Act” and “Transitional Justice”) may have to be used against them for their illegal policy and political action.

Also, there are many individuals who through lobbying and other means receive money and instructions from foreign interests and act in favor of these foreign interests through a state capacity. Therefore, there is a high degree of corruption resulting from both an illegal policy of global hegemony from an international law standpoint and lobbying by foreign interests which insert dark money into the American system (see “Citizens United” of 2012, which enabled the flow of dark money into the American system).

There is a delicate and fine balance between security and freedom, which is guided by both domestic and international laws. And laws are guided by philosophy, science, and truth. In certain cases, philosophy, science, and truth are embodied in a leader. In the idealist tradition, philosophy, science, and truth are embodied in a “Philosopher-King,” and it is the “Philosopher-King” who is the only one deemed fit to rule over society. And in an international society in an age of globalization, the sovereignty of the “Philosopher-King” is global in scope.

Sovereignty is defined as the control and influence of an individual or a state over people and territory. And a sovereign — which is either an individual or a state — is the embodiment of both power and law in a society, and in our case, society is now international and global in scope. Since the outstanding issue of power and law in a globalized and postmodern age is the issue of sovereignty, this issue can be resolved only by a “global state” that is fostered and led by a global leader.

Postmodernism dictates that hyper-centralization of power occur amidst power dispursion and social fragmentation, and the hyper-centralization of power occurs with a global leader and his global state. Based on what Nietzsche has written, this global leader is of Afghan origin. Global order and peace manifest from this global leader and his global state, albeit unceremoniously. As Lao Tzu said: “A leader is best when people barely know he exists, when his work is done, his aim fulfilled, they will say: we did it ourselves.”

This global leader and the global state are recognized by both religious narratives and the secular narratives of Western philosophers such as Bertrand Russell and Henry Kissinger. Because of the religious dimension, the global leader also happens to be the “Spiritual Pole” of his time, serving as the nexus between the spiritual and physical planes and thus the purpose for all of existence. With little to no fame or recognition, the global leader — or “Spiritual Pole” — achieves something big and miraculous, namely, the establishment of order and peace on a global scale.

Even before the coronavirus upended the American-led global order in 2020, the question of whether the policy of American global hegemony that upheld the global order was sustainable or not loomed large over everyone. Wise folks knew and intuited that the policy of American global hegemony which upheld the international system was unsustainable, but it was only a matter of time before the lack of sustainability became self-evident. Because of a policy of global hegemony that could not be sustained both logistically and psychologically, American global hegemony and unipolarity within the international system is being replaced by both a dispursion of power throughout the international system and social fragmentation. But amidst the dispursion of power and social fragmentation within the international system that is resulting from the failure of American global hegemony and the end of American unipolarity, what will occur paradoxically is a hyper-centralization of power by one individual or state.

Global order and peace will therefore be the result of the efforts of one individual or state amidst the dispursion of power and social fragmentation within the international system as the American unipolar moment and the policy of American global hegemony come to a close by either 2023 or 2024. One individual and one state – bound together by a ‘social contract’ rather than divine right absolutism – will be the counterbalance against growing chaos and turbulence in the international system. America’s withdrawal from Afghanistan in 2021 marks the beginning of the two-track process of ending the policy of American global hegemony and American unipolarity on one hand, and the paradox of power dispursion, social fragmentation, and the hypercentralization of power by one individual and state on the other hand. Both tracks will bear fruit and will become evident by either 2023 or 2024, based on the assessments and analysis of certain experts.

But a future of social disorder and social strife resulting from a breakdown of global order and peace calls for collective action and measures to be taken towards the re-establishment and reimposition of social order and peace on a global scale. America’s failure to maintain global order and peace during its “unipolar moment” after the collapse of the former Soviet Union is the direct cause behind the breakdown of global order and peace.

Central to the establishment and imposition of social order and peace is the “Social Contract” of Hobbes or Rousseau, which brings people around an individual or a group of individuals get together in the way of establishing social order and peace through mutual understanding, the meeting of the minds, and the creation of a state.

Thus, the foundation for social order and peace is a “social contract” that creates a state, whether it is at a domestic level or international level. And in a situation where globalization is fostering a truly global and international society, the ‘social contract’ and the state that follows from it which in turn fosters social order and peace will perhaps be global and international in nature and scope. Fundamentally, the moral and political choice for everyone around the globe is either order and peace, or corruption and chaos.

Moreover, the core question of politics and law is the question of human nature. What is human nature? Or what is the essence of human nature? Ultimately, this question brings us to Hobbes and Rousseau. Hobbes had a cynical view of human nature, and his views were shaped by the civil and social strife he witnessed in England during his lifetime. Thus, what Hobbes called for was a “Leviathan,” or a strong state apparatus which kept people in check but adhered to natural laws at the same time. Certain freedoms had to be sacrificed in order for the state to maintain social order, according to Hobbes, because human nature was innately corrupt.

But Rousseau had an outlook towards human nature that stood in stark contrast to the one espoused by Hobbes. Rousseau saw man in his natural state as being lazy, inert, pleasant, and concerned solely with his own pleasures and sentiments. If left alone, natural man would have nothing to do with the machinations and devious schemes that are so common amongst modern men.

What drags the natural man into civil society and international society is the corruption of modernity and the repressive state apparatus that is borne out of modernity. Because of his encounters with modernity and his encounters with a repressive state apparatus, natural man is forced to adjust to civil society and international society.

Thus, natural man – because of government and modernity – is forced to come out of his natural state and is forced to adjust to civil society and international society in order to form a “social contract” with others. And the aim of this “social contract” with others is to prompt changes and reforms within the system. In return for his political action, the natural man seeks only love and honor.

Although natural man desperately wishes to go back to his natural state, government and modernity do not allow him to do so, and in the process of his adjustment to civil and international society, natural man also evolves in terms of his preferences and tastes. He is no longer the lazy simpleton that he once was, where the simple pleasures of life would satisfy him and contentment was easy to achieve. Once natural man adjusts to civil society and international society, he conveys the general will of civil society and international society, and he effectively becomes a lawgiver. Through his political will, he shapes the law, and by shaping the law, he prompts the changes and reforms that civil society and international society seek.

But until the corruption is stamped out by law enforcement in the United States either through laws and statutes that pertain to lobbying or through the “Patriot Act,” those who are engaged in the corruption in Congress and the Executive Branch will hinder, obstruct, and scupper the changes and reforms that are mandatory under the UN Charter. Perhaps security trumps everything, because security fosters an environment where good governance can take place. Corruption undermines security, and when security is undermined, it follows that good governance is undermined given that security is the prerequisite for good governance. And given that change and reform are inevitable, the changes and reforms have to occur either at a policy level or through legal channels, lest a repeat of the Trump era occurs.

At the core of social order and peace are three elements: prevention of violence, resolution of disputes through a free and fair judiciary, and the protection of people’s property and wealth. Order breaks down primarily due to a loss of credibility and legitimacy on the part of the state. When there is a widespread notion amongst the populace that the state is corrupt, the state loses credibility and legitimacy and in turn social order breaks down. George Floyd protests and January 6 were two instances of a breakdown of social order in the United States. Minorities still see the state as being biased and prejudiced against them, and more than half of the population – primarily White Americans – believe the election was either rigged or stolen by the state.

Amidst this particularly chaotic state of social order, relations between state and society need improvements. For one, the state needs to be clear about why corruption and thus the loss of credibility and legitimacy took root in the first place. Corruption led to the loss of credibility and legitimacy on the part of the state, and in turn the loss of credibility and legitimacy on the part of the state led to the outbreak of violence in society.

Thus, anti-corruption measures that are transparent and the rationale of which are explained to the public are the initial steps that need to be taken on the part of security organs within government. The American system of government is largely Lockean in nature, and central to a Lockean system is Congress or Parliament. But lobbying and special interests — and the dark money that goes into the system through these entities — were never intended for a Lockean system. Washington’s preoccupation with dark money and sex has gotten so bad, that Russia and China are now on the rise.

Once security organs step in to take action against the figureheads which started a culture of corruption within government – the roots of which lie with their creation of a policy of global hegemony in 2001 – it will be the beginning of a restoration of both credibility and legitimacy on the part of government and thus the restoration of social order in the long run. The goal for a society in the long run is balance and equilibrium between government and popular interests and thus order and peace.

The American way of life is based on the oeuvre of Adam Smith. Thus, it would be wise to heed his words. These words from Adam Smith’s “The Theory of Moral Sentiments” are always timely:

“The great source of both the misery and disorders of human life, seems to arise from over-rating the difference between one permanent situation and another. Avarice over-rates the difference between poverty and riches: ambition, that between a private and a public station: vain-glory, that between obscurity and extensive reputation. The person under the influence of any of those extravagant passions, is not only miserable in his actual station, but is often disposed to disturb the peace of society, in order to arrive at that which he so foolishly admires. The slightest observation, however, might satisfy him, that, in all the ordinary situations of human life, a well-disposed mind may be equally calm, equally cheerful, and equally contented. Some of those situations may, no doubt, deserve to be preferred to others: but none of them can deserve to be pursued with that passionate ardor which drives us to violate the rules either of prudence or of justice; or to corrupt the future tranquility of our minds, either by shame from the remembrance of our own folly, or by remorse from the horror of our own injustice.”

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