Relocating Transitional Justice from International Law to Muslim-majority Legal Systems: Concepts, Approaches and Ways Forward

Abstract

Faced with the constant challenge of adapting to different contexts, the current understanding of transitional justice held by worldwide institutions, NGOs, donors and successor administrations cannot rely on international law alone as a framework of reference for the design and implementation of transitional processes - although the identification, interpretation and uses of local norms is inherently problematic. This thesis considers the tension between different rules applicable to transitional justice and explores their coexistence in the context of legal pluralism, drawing on comparative law perspectives to investigate the distinctive concept of legal truth and the victims’ right to it, within the broader transitional aims of accountability, justice and reconciliation after a history of serious abuse. The particular focus on Muslim-majority legal systems provides further appreciation of how transitional justice can be relocated from international law to a given local setting, discussing the difficulties in doing so and the possible solutions with reference to Islamic law and jurisprudence. Rejecting the universalist v relativist deadlock in favour of an interpretation of international law which is permeable to local practices (also channeled through states), this thesis argues that comparative law can help uncover the legal formants of a system and piece together a global set of rules for transitional justice which rely on different normative provenances. Based on a victim-centred approach to transitional justice and the acknowledgement of structural power struggles within societies facing radical political change, this work argues that local and global norms of transitional justice have the potential to cross-fertilise in delivering the key transitional aims. Cultural ownership of rules should not be limited to international actors, national or community leaders: if local unofficial norms resonate with victims and survivors of abuse, provided they do not contrast the transitional objectives, they are likely to contribute to given processes, and in turn influence the global paradigm of transitional justice.