www.ndu.edu/inss SF No. 282 1 

Transitional justice is the provision of justice in the transition from one 

form of government, often perceived as illegitimate, unjust, and tyrannical, or an anarchic society, to one that observes the rule of law and 

administers justice. It also is about choices: how to allocate scarce prosecutorial, 

judicial, police, and prison resources. The goal is to make the rule of law ordinary. 

A 2004 report of the United Nations (UN) Secretary-General on the rule of 

law and transitional justice in conflict and postconflict societies observed that 

most examples of transitional justice involved states emerging from civil war or 

widespread civil unrest such that government became impossible:

Our experience in the past decade has demonstrated clearly that the 

consolidation of peace in the immediate post-conflict period, as well as 

the maintenance of peace in the long term, cannot be achieved unless the 

population is confident that redress for grievances can be obtained through 

legitimate structures for the peaceful settlement of disputes and the fair 

administration of justice.1

Syria after President Bashar al-Asad may pose uniquely Syrian challenges and 

solutions, but it will hardly be alone in having to undergo transition from dictatorship and civil war to something else. The process inevitably involves transitional justice in some form.

Transitional justice can encompass everything from highly formalized—

some might say ritualized—administration of justice, establishment of accountability, and social reconstruction to nothing at all. It may involve external assistance or imposed institutions. The modern history of transitional justice includes 

the exile of Napoleon to St. Helena, the imprisonment of Jefferson Davis, and 

the post–World War II trials of German and Japanese war criminals as well as 

the role played today by international, national, and mixed national-international tribunals; truth commissions; general, partial, and conditional amnesties; and 

other devices in the process of rebuilding a society traumatized by war. South 

Transitional Justice for Syria

by Nicholas Rostow

Strategic Forum

National Defense University

About the Author

Dr. Nicholas Rostow is Distinguished 

Research Professor and Senior 

Director in the Center for Strategic 

Research, Institute for National 

Strategic Studies, at the National 

Defense University. He also is a 

Senior Research Scholar at the Yale 

Law School.

Key Points

◆ Syrian political and community 

leaders are already planning for 

postconflict “transitional justice.” 

Transitional justice refers to the 

wish to hold perpetrators of 

atrocities accountable by means 

of some formal process that helps 

instill or rebuild the rule of law 

that replaces a former government perceived as unjust.

◆ No single model for transitional 

justice exists; in the course of 

confronting, overcoming, and 

recovering from serious domestic 

upheaval and conflict, a substantial number of countries have employed various means to achieve 

transitional justice.

◆ Syria can help itself by quickly 

choosing a model for transitional 

justice that is consistent with its 

national culture and that meets 

the standards expected of such 

efforts with respect to due process 

and transparency. Such an effort 

may facilitate national healing and 

reconstruction and allow warring 

parties to find common ground. If 

delayed, transitional justice may 

be irreparably supplanted by the 

wholly destructive desire for private or communal vengeance.

September 2013

Cent

e

r fo

r Strategic ReS

EARCH
2 SF No. 282 www.ndu.edu/inss

Africa, Sierra Leone, Guatemala, Rwanda, and Cambodia provide examples of the wide variety of efforts undertaken under the general rubric of “transitional justice.”

This transitional justice smorgasbord offers an almost infinite choice among postconflict or postdictatorship mechanisms. The point is to tailor the approach to 

the society in question with the goal of establishing or 

reestablishing the rule of law.2

 It is “transitional” because 

the task is to address past wrongs of the most serious 

kind, not ongoing issues of justice and public order. Efforts to establish institutions that are capable of delivering transitional justice also should become instruments 

of law enforcement and judicial administration in the 

future; thus, the transitional effort may help provide a 

firm foundation for the rule of law. This transformation 

does not always happen.

The variety of approaches reflects what Montesquieu called the “nature of things”: an international system consisting of diverse independent states of varied 

political and civil cultures with equally diverse mores 

and perspectives.3

 Experts such as the African Union’s 

Panel of the Wise, who have studied the issue of transitional justice, recognize that tension may exist between the need for political peace through transitional, 

all-party governments and the desire for accountability 

for atrocities.4 Therefore, the experts suggest following 

where the local people lead because that population has 

to be comfortable with the balance reached. The subsequent pages examine this tension and ways to relax 

it in the course of analyzing the nature of transitional 

justice, ingredients necessary for success, and bases for 

assessing success.

Issues

Contemporary notions of transitional justice and the 

need for mechanisms to deliver it emerged from World 

War II. The Nuremberg and Tokyo war crimes trials and 

their successors—the International Criminal Court for 

the Former Yugoslavia, the International Criminal Court 

for Rwanda, the Sierra Leone Special Court, the Special 

Tribunal for Cambodia, and, of course, the International 

Criminal Court—elevated accountability for atrocities to 

the status of lodestars for much more than a judicial settling of accounts. They have become standard evocations in 

efforts to build new societies after periods of violence and 

dictatorship and help make transitional justice a theme in 

efforts to address postconflict issues. National atrocity trials and appeals for the creation of a permanent international criminal court relied on the examples of Nuremberg 

and Tokyo as well.

Since the end of the Cold War, consideration of 

transitional justice has drawn systematic study and advocacy. Transitional justice is on the agenda of the United 

Nations and other international organizations, nongovernmental organizations, and a substantial number of 

countries emerging from civil conflict and/or addressing 

postdictatorship issues. At the same time, it is significant that the demise of the Soviet Union, probably the 

most important international event since 1945, was not 

followed by a system of transitional justice. The Russian 

example underscores the importance of local wishes, traditions, and power structures in this matter. Syria, which 

also is a cauldron of conflicting interests, is not going to 

provide an easy environment for consensus-building on 

transitional justice or any other subject.

In September 2003, prompted by an interest in 

transitional justice and the rule of law, the establishment 

of the International Criminal Court in 2002, and the 

debate following the U.S. invasion of Iraq in 2003, the 

UN Security Council under the British presidency debated “Justice and the Rule of Law.”5

 Kofi Annan, then 

Secretary-General, noted that “the rule of law is not a 

luxury and justice is not a side issue.” People, he said, 

“lose faith in a peace process when they do not feel safe 

from crime, or secure in returning to their homes, or able 

to start rebuilding the elements of a normal life, or confident that the injustices of the past will be addressed.” 

Annan emphasized that “without credible machinery 

to enforce the law and resolve disputes, people resort to 

violent or illegal means. And we have seen that elections 

held when the rule of law is too fragile seldom lead to 

lasting democratic governance.”6
www.ndu.edu/inss SF No. 282 3 

Annan acknowledged that the task is politically 

delicate as well as technically difficult, involving such 

sensitive issues as sovereignty, tradition and security, and 

justice and reconciliation. It requires creation of a national agenda, political leadership, and determination to 

implement that agenda, and a constituency to support 

the process. He warned that a “one-size-fits-all approach 

does not work. Local actors must be involved from the 

start.” The process may take many years, and it must not 

come at the expense of the more immediate need to establish the rule of law on the ground. Annan noted that 

“[e]ach society needs to strike the right balance between 

the goals of justice and reconciliation” but stressed that 

international standards must be observed:

There should be no amnesties for war crimes, genocide, 

crimes against humanity or other serious violations 

of international human rights and international 

humanitarian law. The rights of the accused should 

be scrupulously respected. . . . At times, we may need 

to accept something less than full or perfect justice or 

to devise intermediate solutions such as truth and 

reconciliation commissions. We may need to put off 

the day when the guilty are brought to trial. At other 

times, we may need to accept, in the short-term, a 

degree of risk to peace in the hope that in the longterm peace will be more securely guaranteed.7

A war-torn or otherwise traumatized country will have 

a lengthy reconstruction priority list. Among the items will 

be peace, stability, security, and justice. Outsiders may have 

claims with respect to postconflict institutions depending on the extent and nature of their assistance. Insistence 

on the rule of law and transitional justice likely will figure 

among them. Whatever the claims, one should recognize 

that all interested parties, whether indigenous or external, 

will have their own perspective and interests. The UN Secretariat, for example, takes the view that “Justice, peace, and 

democracy are not mutually exclusive but rather mutually 

reinforcing imperatives.”8

 On the other hand, the Secretariat 

has refused or hesitated to engage in transitional justice assistance when the new government refuses to give up the 

death penalty.9 Thus, the Secretariat brings its own perspective and concerns to each situation that might involve transitional justice, which it will want to see realized in the event 

that UN assets are involved in a national reconstruction.

Recent history gives a sense of the complex environment in which advocates of particular kinds of transitional 

justice must operate. Spain, for example, did not engage in 

the kind of transitional justice exercises seen in South Africa when it moved from Franco’s regime to constitutional 

monarchy and democracy. Much of Central and Eastern 

Europe emerged from the Soviet Union to establish democracies and join the European Union and North Atlantic Treaty Organization, also without engaging in a process or much of a process of transitional justice. The same 

is of course true of Russia, although one may wonder if it 

has achieved either peace or democracy in the years since 

the demise of the Communist regime. No UN body has 

called for a different approach in these regions. The Secretariat and Secretary-General have adopted a perspective 

that does not take into account all recent experience, much 

less earlier historical experiments such as reconstruction 

in the American South after the Civil War. The UN statement about the mutually reinforcing imperatives of peace, 

justice, and democracy does not brook criticism and has 

become conventional wisdom. That it is a laudable goal is 

not the issue, at least to this writer.

Annan emphasized that the most important questions of governance and transitional justice must be considered at the beginning and not at the middle or end of a 

transitional justice process. Do the local inhabitants want 

institutionalized transitional justice? Would they rather 

let the winner govern and go back to their lives undisturbed by trials, truth commissions, or other mechanisms 

for documenting what happened and holding perpetrators 

responsible? What do the local inhabitants think is more 

important: security or peace? Justice or democracy? The 

rule of law or reconciliation? What is most comfortable 

given local culture and social mores? And how can outside 

actors—governments, international organizations, or nongovernmental organizations or some combination—assist 

in the construction of a postconflict or post-trauma society 
4 SF No. 282 www.ndu.edu/inss

in line with the wishes of the inhabitants? If local desires 

and aspirations are ignored, the task of reconstruction or 

construction and transitional justice becomes enormously 

more difficult. If outsiders are ignored entirely, vigilantism 

or worse may result. These points have become staples of 

the literature on transitional justice.10

In addition, the Secretary-General stated that international standards with respect to transitional justice existed 

and had to be followed. Yet even with respect to genocide, 

which surely is a crime under customary international law, 

by the end of 2012 only 142 states were parties to the Convention on the Prevention and Punishment of the Crime of 

Genocide. States have become parties to the International 

Convention on Civil and Political Rights, but it is not universally applicable, nor is it incontrovertibly representative 

of customary international law. Indeed, the Convention on 

Civil and Political Rights only binds the parties, and then 

only to the extent of declarations and reservations. China, 

for example, is not a party, which thus excludes a seventh of 

the world’s population from the Convention’s reach.

During the UN Security Council discussion of transitional justice in September 2003, most speeches followed 

national interests rather than philosophical lines. The German Foreign Minister emphasized the importance of 

the International Criminal Court as “an important step 

towards global civilization.”11 Spain’s Foreign Minister 

stressed the importance of shared values,12 and the French 

Foreign Minister emphasized the particular circumstances 

in which the rule of law is exercised: “A model is learned, 

not imposed.”13 The Syrian Foreign Minister used the occasion to ask how one can attain justice when Israel occupies Palestinian territory and refuses to renounce nuclear 

weapons and the United States and others occupy Iraq.14

The Chinese Foreign Minister worried that improving lives 

was essential to preventing a recurrence of internal strife.15

His Mexican colleague agreed and stressed the need for the 

process to result in a record of events and in the healing of 

a society torn asunder.16 He also saw greater coordination, 

for example, between the Security Council and General Assembly as contributing to the advancement of justice and 

the rule of law.17 The Bulgarian Foreign Minister observed 

that in cases of transitional justice, “it is essential to avoid 

the impression that a foreign order is being imposed.”18

Transitional justice questions begin where they 

should, with the local inhabitants of a region in need of 

reconstruction and healing, but do not exhaust the issues that either such a community or all the interested 

parties should address. For example, the subject of transitional justice has generated an industry of diplomats, 

think tanks, nongovernmental organizations, and intergovernmental organizations or parts of them, such as the 

UN Rule of Law Project.19 Each interested party has its 

own interests. These may or may not coincide with the 

interests of the local population or at least with the way 

that population balances competing interests. As a result, 

one has to recognize and accept that transitional justice 

involves a political, not just a moral process.

The country in question will have to deal with the 

consequences of the process, possibly for generations. For 

example, the U.S. invasion of Panama in 1989 was driven 

by the narrowing of policy options resulting from the indictment of Manuel Noriega. It is logical to assume that 

the referral of Libyan leader Muammar Qadhafi to the 

International Criminal Court (ICC) and the ICC indictment of President Umar al-Bashir of Sudan did nothing 

to encourage them to give up politics or the policies that 

had led, respectively, to their referral and indictment. Carla 

del Ponte, one-time Chief Prosecutor of the International 

Criminal Court for the Former Yugoslavia, recommended 

in February 2013 that the UN Security Council refer Syria 

to the ICC.20 Syria is not a party to the Rome Statute of the 

ICC. Given the UN Security Council’s inability to overcome Russian and Chinese opposition to collective action, 

it is unlikely the Council will agree on a referral of Syria to 

the ICC unless Russia and China change their policies.21

The debates on transitional justice at the United Nations and the issues raised by efforts nationally and internationally to implement programs of transitional justice 

highlight the inescapable political impact of those efforts 

and the importance of the questions that transitional justice 

mechanisms are supposed to answer. The political dimension has always been clear: who on the losing side of a civil 
www.ndu.edu/inss SF No. 282 5 

war would face criminal charges because of their conduct 

and be barred from participating in the future political life 

of the country? To what extent does society need outside assistance to attain its aspirations, and what conditions, if any, 

do the providers of outside assistance impose?

Mechanisms

The starting point in choosing the appropriate transitional justice mechanism is what the new governing elite 

wants to achieve. A number of Syrian scholars and leaders attempted to answer this question with an innovative 

plan called The Day After Project in 2012 that was sponsored 

by the United States Institute of Peace and the German 

Foreign Ministry. The 45 participants represented a crosssection of Syrian politics and society inside and outside the 

country, and all of them were opposed to the continued rule 

of President Asad. They shared a vision for a nonsectarian, 

democratic, and rule-of-law-based Syria. One participant 

noted, “[T]here is no single one-size-fits-all approach to 

transitional justice. Multiple mechanisms and varied approaches are appropriate, and the process should be adapted 

to the Syrian context.”22 Most importantly for the participants was their view that Syria should itself control the 

question of what kind of transitional justice to have and 

how to administer it. The Day After Project authors believe 

that Syria’s transition to democracy and social healing will 

be more likely to succeed if transitional justice mechanisms 

and institutions are already in place. Coming from people 

who see themselves as being at the center of Syria’s conflict, 

this call for transitional justice represents a best practice: local people should establish their priorities with respect to 

justice; outsiders can assist but should not dictate outcomes.

The Project offers a way to think about the issues 

confronting Syria in a comprehensive framework. At the 

same time, it begs the question of standing: does the Project represent the views of expatriate Syrians alone, or does 

it have resonance in Syria itself among those who are conducting operations against the government? The authors 

clearly are an asset to be tapped by whatever Syrian national coalition is formed. They can provide the infrastructure for implementing project goals and provide training 

in human rights, international humanitarian law, and 

civilian control of the military to those fighting against 

the Asad regime. Can the Project gain the support of the 

population? If Syrians who have borne the brunt of the 

battle with Asad do not perceive the implementing body 

as representative of the people, including minorities, those 

who wrote and/or support the Project will face obstacles, 

perhaps insurmountable ones, to making their proposals 

a roadmap.

Indeed, rebels who fight the regime may not be at all 

receptive to ideas that originate outside Syria or outside 

their control, however meritorious or popular with foreign 

sponsors they may be. Radical Sunni Islamists (Salafis) such 

as the Jabhat al-Nusra have gained in political strength 

over the past 2 years among Sunni sectarian opponents of 

President Asad while Shia militants, including Iraqis loyal 

to Muqtada al-Sadr, support the Asad regime. Again, this 

raises a question about whether the vision shared by the 

Project’s authors of a secular, representative government 

under the rule of law, but not entirely shariah (religious) law, 

can become the framework for a new Syria. Whether or not 

the Project succeeds in this regard, it sets forth proposals 

and a vision that deserve attention.

The Day After Project recommends immediate establishment of a Preparatory Committee on Transitional 

Justice that would oversee all aspects of the transitional 

justice program: development and implementation of a 

strategy, records collection and safeguarding, outreach 

and publicity so as to minimize revenge attacks and other 

forms of vigilantism, coordination among transitional 

justice institutions, preparation of personnel, coordination with outside bodies, and establishment of an ad hoc 

Special Criminal Court to hear charges against Asad and 

his family. Lower rank officials would be tried in the Syrian judicial system or “accepted para-judicial processes.”23

A Commission of Inquiry would “engage in a broad and 

inclusive process of trust-seeking, establishing a shared account of recent Syrian history.”24

One important issue would be resources for reparation to victims. Monetary reparation, important in tribal 

law to personal conflict resolution, might be difficult to 
6 SF No. 282 www.ndu.edu/inss

provide because of the extensive nature of official abuse 

going back decades. Alternatives, including guarantees 

of non-recurrence, might have to suffice.25 Moreover, The 

Day After Project insists on a Syrian process, controlled 

by Syria, even in areas where international involvement 

might prove necessary and the implementation of international standards may be required. This insistence may 

reflect concern about limitation on sentences. A number 

of Cambodians are reported to have lost interest in the 

UN-Cambodia hybrid court trials of the principal perpetrators of the Killing Fields because the death penalty is 

not available to the Court.

The Day After Project approach is comprehensive 

and complex. It seems to envisage a transitional justice 

system that incorporates almost all of the mechanisms 

hitherto tried:

◆ Truth commissions, which examine and try to 

come to terms with past abuses and seek redress for 

victims. They typically involve the grant of at least conditional immunity.

◆ International courts, which attempt to deliver 

justice when local courts are unable to. Among their features is limited sentencing capacity.

◆ Hybrid courts, where a mixed internationalnational court hears a few cases of extreme gravity that 

are beyond the national courts’ unaided capability to judge. 

Cambodia and Sierra Leone stand out as examples.

◆ Amnesties, which some societies use to turn a historical page and focus on the future. In Chile and Spain, for 

example, after a substantial period of time, challenges have 

arisen to continuing that amnesty indefinitely.

◆ Doing nothing, which a country sometimes prefers and which requires no institutional accounting for 

the past. Russia is an outstanding example today. Other 

historical examples exist.

Each transitional justice mechanism has associated 

costs and benefits. Some may be helpful to some societies some of the time, but none is a magical solution to 

all national problems. Once again, the question to be addressed is purpose. What is the goal of transitional justice, 

in this case, in Syria? The Syrians need to frame it, but 

that alone will require a complex process of consensusbuilding. Accountability, social peace and healing, the rule 

of law, and other aspirations and values will need to be 

taken into account and applied, including by those placing tribal law and retributive justice (an-eye-for-an-eye or 

blood revenge) before the requirements of transitional justice. Alone, none is easy. Together, they can involve cross 

currents that will require painful choices. For one thing, 

traditional justice mechanisms and sentences are likely 

to raise issues for the international community, especially 

those called on to contribute to reconstruction.

Policy Issues

Given the viciousness of the civil war, the depth of 

sectarian feeling, and the number of outside actors engaged, it will be no small thing for Syrians to come together to create a new version of their ancient country. The 

international community has hesitated to intervene as a 

community or individually. Once the guns are stilled, it 

may find its voice. One may expect, for example, calls for 

the new government to abide by principles embodied in 

the idea of the Responsibility to Protect: sovereignty and 

government that involve responsibility to the citizenry, 

at least with respect to protecting it from genocide, mass 

atrocities, and the worst of war crimes—crimes against 

humanity.26 Issues of transitional justice now figure among 

the policy requirements of governance.

A foreseeable issue will be how to define a class of 

persons whose conduct puts them outside any future Syrian political system. Will they be limited to the losing sides 

in the civil war? How will their offenses be addressed? The 

Day After Project envisages a special court to try President 

Asad and his family members for crimes. The Project does 

not contemplate ending prosecutions with the Asads. How 

far should a criminal justice process reach? We know that 

criminal behavior may not be limited to one class or tribe. 

In the case of Rwanda, the ad hoc International Criminal 

Court tried only Hutus even though evidence suggests that 
www.ndu.edu/inss SF No. 282 7 

Tutsis also engaged in murder.27 Is that the model The Day 

After Project envisages? And what of other contestants for 

power in Syria? Are additional groups planning for a future 

defined by the rule of law or some alternative?

Uncertainty and almost unlimited complexity abound so 

long as the civil war continues. For these reasons, the leading 

candidate to replace Bashar al-Asad needs to begin preparing 

the way with representatives of rebel groups who agree with 

rule of law principles to lay the groundwork for the future, 

both in terms of the governmental institutions they want 

and the transitional justice laws on which they can agree. To 

govern is to choose, Pierre Mendes-France is credited with 

saying in the 1950s. The Syrians of today need to study their 

options and choices; the course they pick will narrow their 

options in the future. For example, once they decide how to 

treat Asad and his associates, those decisions will become 

binding even in changed political circumstances. Those they 

decide to investigate and prosecute for, let us hypothesize, 

mass killings cannot then become part of the political solutions to problems the new Syria may face. The more serious 

the offense charged, the harder it is to step back from the 

consequences of the judicial process. The United States, for 

example, found that when it indicted General Noriega for 

drug-trafficking in 1988, it could not then conclude a political arrangement that would include quashing the indictment.

When one considers transitional justice and taking 

steps in the short term to address demands, one should recall that it is extremely difficult to limit the time in which 

past wrongs are considered current issues. Cambodia’s experience in trying to bring perpetrators of the Killing Fields 

to justice is one example. Nazi criminals will be hunted as 

long as they live. Today, Bangladeshis want justice for mass 

killers from the war of independence in 1971.28 The UN 

High Commissioner for Human Rights regularly calls on 

states and others to take steps against perpetrators of crimes 

long ago.29 The transitional justice solution of today may not 

suffice tomorrow.

It is far easier to call for an “end to impunity” than it is 

to deliver justice in a way that contributes to the creation of 

a society and culture in which the rule of law is deeply rooted. The United States, which prides itself on the rule of law, 

still witnesses political struggles between “contending conceptions of justice”—between the doctrines of natural right 

and popular sovereignty, or between those who believe in 

moral law and those who believe power is all.30 The American example is worth pondering because so many themes of 

the calls for transitional justice surface in U.S. history. And 

American history shows that the process of seeking justice 

is ongoing and that conceptions of the past and what is due 

to it change over time. This latter point is of central importance to those who would help a society move from conflict 

to peace, stability, and the rule of law. The needs of the moment may not be enduring truths to which the society will 

look in the future. The Day After Project authors appear to 

understand this point in the very complexity of their outline 

for how to proceed to govern and to deliver justice. Some of 

their foes will have no place in the new Syria. Some without 

the cleanest of hands will be called on to make a country 

that delivers the rule of law. Would that end the climate of 

impunity Kofi Annan asserted was essential to public and 

international confidence?

“Transitional justice” means just that—provision of justice in the transition to a government that administers justice in the ordinary course of governing. Governments make 

choices even when administering justice, such as how to allocate scarce prosecutorial, judicial, police, and prison resources 

among ongoing issues of public safety, corruption, and other 

issues that taint and create obstacles to the rule of law. The 

goal is to make the rule of law ordinary. For Syria, like so 

many states, the rule of law will be an extraordinary achievement and reality for many years to come if it is achieved at 

all. The longer the bloodletting continues, the harder the task 

of real nation-building will be, and the more likely it is that 

transitional justice will take a familiar Middle Eastern form: 

an eye for an eye, with interest compounded.

Acknowledgment

The author thanks Ian Glander, Carleton College 

Class of 2012, for his assistance in preparing this 

paper for publication.
8 SF No. 282 www.ndu.edu/inss

Notes 1Report of the Secretary-General, August 23, 2004, United 

Nations (UN) Doc. S/2004/616, 3. See also the Web site of the 

International Center for Transitional Justice for much useful material, 

available at <www.ictj.org>.

2 See, for example, Martha Minow, Between Vengeance and 

Forgiveness: Facing History after Genocide and Mass Violence (Boston: 

Beacon Press, 1998); Jon Elster, Closing the Books: Transitional Justice 

in Historical Perspective (Cambridge: Cambridge University Press, 

2004); and Richard S. Williamson, Human Rights, Democracy and 

Restorative Justice (Chicago: Prairie Institute for Economic Growth 

& Development, 2004). Interestingly, none of these authors devotes 

attention to the aftermath of the American Civil War and slavery as 

historical examples of the phenomenon they examine.

3 Montesquieu, De l’Esprit des Lois 1, trans. Thomas Nugent (New 

York: D. Appleton Company, 1900).

4 For example, African Union Panel of the Wise, Peace, Justice, 

and Reconciliation in Africa: Opportunities and Challenges in the Fight 

Against Impunity, The African Union Series (New York: International 

Peace Institute, February 2013), 10–13.

5The UN Security Council presidency changes every month according to alphabetical order in English. The British, exercising their 

authority as President, decided to hold a discussion of these issues.

6 UN Doc. S/PV.4833, “Justice and the Rule of Law: The United 

Nations Role,” September 24, 2001; continued S/PV.4835, September 

30, 2003.

7 Ibid., 2–3.

8 UN Doc. S/2004/616, Report of the Secretary-General, The rule of 

Law and Transitional Justice in Conflict and Post-Conflict Societies at 1, 

August 23, 2004. Emphasis added.

9 For example, Iraq. See Nicholas Rostow, “Gaza, Iraq, Lebanon: 

Three Occupations Under International Law,” Israel Yearbook on Human Rights 37 (2007), 225 and note 83.

10 See, for example, Antonio Cassese, “Reflections on the Current 

Prospects for International Criminal Justice,” in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, ed. Mahnoush 

H. Arsanjani et al. (Boston: Martinus Nijhoff Publishers, 2011); Lungchu Chen, “Human Rights and World Public Order: Major Trends 

of Development, 1980–2010 and Beyond,” in Looking to the Future; 

Jon Elster, Closing the Books: Transitional Justice in Historical Perspective

(New York: Cambridge University Press, 2004); Governance and Social 

Development Resource Center, Topic Guide, Justice/Transitional Justice, 

available at <www.gsdrc.org/go/topic-guides/justice/transitional-justice>; 

Minow; Williamson.

11 UN Doc. S/PV.4833, 16.

12 Ibid., 14.

13 Ibid., 7.

14 Ibid., 10–11.

15 Ibid., 8.

16 Ibid., 9–12.

17 Ibid., 9.

18 Ibid., 12.

19 UN, “United Nations Rule of Law: Transitional Justice,” 

last modified 2013, available at <www.unrol.org/article.aspx?article_

id=29>; International Center for Transitional Justice, available at 

<http://ictj.org/>; The International Journal of Transitional Justice, 

last modified 2013, available at <www.oxfordjournals.org/our_journals/ijtj/about.html>. These represent a small fraction of the organizations involved in the subject of transitional justice.

20 Nick Cumming-Bruce, “U.N. Rights Officials Urge Syria War 

Crimes Charges,” The New York Times, February 18, 2013, A10.

21 Of course, the referral presumably would have to designate 

alleged crimes to be investigated. It is not unreasonable to assume that 

rebels and government forces could be guilty of crimes that might fall 

within the ICC’s jurisdiction.

22The authors of The Day After Project describe it as the work 

of “a diverse group of Syrians who are active in the revolution to 

bring down the regime of Bashar al-Asad and who seek to help Syria 

transition from dictatorship to democracy.” See The Day After Project: 

Supporting a Democratic Transition in Syria (Washington, DC: United 

States Institute of Peace, 2012), 38.

23 Ibid., 37, n4.

24 Ibid.

25 Ibid., 56.

26 UN Doc. A/RES/60/1, 2005 World Summit Outcome, paras. 

138–139, 30, October 24, 2005.

27 Alison des Forges, Leave None to Tell the Story: Genocide in 

Rwanda (New York: Human Rights Watch, 1999), 692ff.

28 Jim Yardley, “Vast Throng in Bangladesh Protests Killing of 

Activist,” The New York Times, February 17, 2013, 12.

29 For example, in regard to Sri Lanka, Reuters, “Sri Lanka: 

United Nations Says Leaders Must Do More to Investigate War 

Deaths,” The New York Times, February 13, 2013.

30 Steven B. Smith, “Lincoln’s Tragic Pragmatism,” The New 

York Times Book Review, February 17, 2013, 14 (review of John Burt, 

Lincoln’s Tragic Pragmatism: Lincoln, Douglas, and Moral Conflict).

The Center for Strategic Research (CSR) within the 

Institute for National Strategic Studies provides advice to 

the Secretary of Defense, Chairman of the Joint Chiefs of 

Staff, and unified combatant commands through studies, 

reports, briefings, and memoranda. The center conducts 

directed research and analysis in the areas of strategic 

and regional studies and engages in independent and 

leading-edge research and analysis in related areas.

The Strategic Forum series presents original research 

by members of NDU as well as other scholars and 

specialists in national security affairs from the United 

States and abroad. The opinions, conclusions, and recommendations expressed or implied within are those of the 

contributors and do not necessarily reflect the views of the 

Defense Department or any other agency of the Federal 

Government. Visit NDU Press online at www.ndu.edu/press.

William T. Eliason

Director

NDU Press

Institute for National Strategic Studies

Linton Wells II

Interim Director

INSS

Nicholas Rostow 

Senior Director

CSR