INTRODUCTION

Throughout this chapter, I will draw on the Just War tradition, especially the jus post bellum branch of that tradition, for guidance about transitional justice today. Specifically, I will offer an account of some of the most important principles underpinning justice during transition – showing that not all strategies that promote peace are worth pursuing, especially when the pursuit of peace means that justice will not be had. In this sense, I will defend the strategy of only pursuing a ‘just peace’. And I will indicate how best to understand justice in transitional settings, especially where atrocities have ravaged a political community. Consideration of transitional justice must concern considerations of how to achieve lasting peace, just as much as considerations of peace must be accompanied by considerations of how to minimize the adverse effect on rights when peace is pursued.

In 1625, Hugo Grotius said that in the aftermath of war political leaders must be most concerned not to anger the populations of the defeated State, since such anger will undermine lasting peace. But Grotius also argued that it was essential that human rights protection must be of paramount concern. We can see in Grotius’ work the emergence of two normative principles of transitional justice: the principle of the promotion of peace and the principle of the protection of human rights. I will explain the normative grounds for supporting these two principles as the cornerstones of transitional justice. And I will also offer a way to adjudicate between these principles where they conflict.

In the first section, I will discuss two 16th century Just War theorists, Vitoria and Suarez. In the second section I will discuss the 17th century Just War thinker Grotius and explain the normative grounding for the principles of promoting peace and protecting human rights. In the third section I will discuss the 18th century Just War theorist Vattel and explain how best to adjudicate between these principles. In the final section I will respond to a criticism of my approach. Transitional justice is generally in need of solid normative grounding and the Just War tradition will be shown to be a good beginning source for such an endeavor.