Katja Samuel

Transitional Justice in Times of “Exponential Change”: Constructing Normative Frameworks Fit for Purpose—The Importance of General International Law

In the attempt to reformulate transitional justice to include broader rule of law approaches, there are substantial challenges in ensuring institutional, normative, and policy coherence. Though the rhetoric of the UN policy “pillars” of human rights, development, and peace and security is uncontroversial and commendable, achieving it through tangential legal regimes is problematic. With at least three forms of incoherence at work: within a regime, between legal regimes, and between regimes and the UN’s policy goals, ensuring effective responses requires resort to tools of general international law. The chapter comes to three conclusions: first, that as achieving transitional justice requires reliance upon divergent areas of international law, general issues of normative ordering and fragmentation must be confronted. Secondly, normative incoherence can be mitigated through a range of general techniques, including the development of unified substantive (“primary”) rules across regimes—using the principle of prevention here as the example—and recourse to treaty interpretation as a secondary tool to maximise rule-linkage. Thirdly, there are a number of meta-, or overriding, principles which might assist with developing an overarching coherence, including the concept of sustainable development and various principles of human rights. Thus, transitional justice as both a policy and legal objective should not eschew, and indeed benefits from, precepts and techniques of the general legal order.