Durham E-Theses Relocating Transitional Justice from International Law to Muslim-majority Legal Systems: Concepts, Approaches and Ways Forward PANEPINTO, ALICE,MARTINA How to cite: PANEPINTO, ALICE,MARTINA (2015) Relocating Transitional Justice from International Law to Muslim-majority Legal Systems: Concepts, Approaches and Ways Forward , Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/11109/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 ! ! ! ! Relocating Transitional Justice from International Law to Muslim-majority Legal Systems Concepts, Approaches and Ways Forward ! —— A.M. Panepinto! ! —— A Thesis submitted for the degree of Doctor of Philosophy —— ! ! Supervised by Dr A. O’Donoghue Prof M. Bohlander —— ! ! ! Durham Law School Durham University April 2015 Abstract ! Relocating Transitional Justice from International Law to Muslim-majority Legal Systems: Concepts, Approaches and Ways Forward 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. ! Keywords transitional justice/ legal pluralism/ comparative legal systems/ international law/ human rights/ Islamic law ! ! ! ! Page "2 of "216 ! ! ! ! ! ! ! ! Declaration “No part of this thesis has been submitted elsewhere for any other degree of qualification in this or other !university. It is all my own work unless referenced to the contrary in the text” ! ! ! ! ! Statement of Copyright “The copyright of this thesis rests with the author. No quotation from it should be published without the author's prior written consent and information derived from it should be acknowledged” Page "3 of "216 Acknowledgements In Durham, my first words of gratitude go to Ustinov College, and in particular (former) Vice-Principal and Senior Tutor Dr Theresa McKinven, for making this materially possible in a mentally stimulating environment. My academic supervisors Dr Aoife O’Donoghue and Prof Michael Bohlander at Durham Law School, and previously Prof James Sweeney now at Lancaster, have been instrumental in providing intellectual and professional guidance throughout the process. Thanks also to Dr Gleider Hernández and Dr Christian Schweiger for supporting me as their teaching assistant in PIL and IR, and to the students. At Durham Law School a special mention goes to Rumy Grozdanova, Jane Rooney, Ntina Tzouvala, Angie Engel, Anna Jobe and Sohyun Shin, and honorary member Matt Hann. Around Durham, Emma Black, Chris Davidson, Hadi El-Amine, Sandra Ernst, Anna Kranz, Emma Linney, Celine Ophelders, Jesper Pedersen, Renan Petersen-Wagner, Seif El-Rashidi, Miriah Reynolds, Nussaibah Younis. Further afield, to my closest friends Kai Kreutzberger and Enrica Locati in particular, and to Beatrice Bono, Caterina Crivellaro, Katy Rota, Fabrizio Saglia, Chiara Sasso and Shimri Zameret. I especially thank Cesare Aloisi for supporting my independence. This thesis is dedicated to my mother and aunt, Ms Kate Merrett and Ms Tess Merrett, and to the other Ms Panepinto, my sister Lydia. Page "4 of "216 Table of Contents Relocating Transitional Justice from International Law to Muslim-majority Legal Systems ! 1! Abstract! 2! Acknowledgements! 4! Table of Contents! 5! Introduction! 8! Research Questions! 9! Methodology! 9! Can Transitional Justice Relocate to ‘Muslim-majority’ contexts?! 10! Structure! 11! Ways Forward! 13! I. A Re-Introduction to Transitional Justice: Distinctive Concepts, International Law and Local Norms! 14! 1. Introduction ! 15! 2. Transitional Justice: A Re-Introduction! 16! 3. Transitional Justice and International Criminal Law ! 21! 3.1 The Malleability of the Rule of Law, ICL and Transitional Justice! 24! 4. Transitional Justice and International Human Rights Law! 29! 4.1 Root Causes, Human Development, Peace and Transitional Justice! 31! 5. Transitional Justice and International Humanitarian Law! 35! 6. Bottom-up Norms of Transitional Justice! 38! 6.1 Religious Norms, International Law and Transitional Justice ! 41! 7. Conclusions! 45! II. Legal Truths, Judicial Rituals and Transitional Justice! 46! 1. Introduction ! 47! 2. Truth and Transitional Justice! 49! 3. Legal Truths in Transition! 56! 3.1 The Construction and Limits of Legal Truths! 60! 3.2 Stakeholders of the Legal Truth! 62! 4. Truth-Seeking, Collective Memory and Transitional Justice! 65! 4.1 Ritual Performances, Legal Masks and Truth-Seeking! 66! 5. Conclusions! 71! III. Reassessing the Right to the Truth in International Law ! 72! 1. Introduction ! 73! 2. The Development of a Human Right to the Truth! 75! Page "5 of "216 2.1 The Foundations of the Right to the Truth! 77! 2.2 The Right to the Truth as an Inter-American Human Right! 79! 3. The Right to the Truth and the ECHR! 82! 3.1 Victims’ Rights to the Truth in a Democratic Society ! 86! 4. The Right to the Truth under PIL: ECHR Contributions! 91! 5. Conclusions! 99! IV. The Tools to Relocate Transitional Justice in Muslim-Majority Legal Settings! 100! 1. Introduction ! 101! 2. Localising Transitional Justice: A Challenging Necessity! 102! 2.1 Reckoning with a Foreign Legal System! 106! 3. Comparative Law Methods! 111! 3.1 The Contents of Legal Systems: Formants, Cryptotypes and Transplants! 115! 4. International Law as a Cross-cultural Bridge for Transitional Justice! 120! 4.1 The Challenges of Giving Transitional Justice an Islamic Flavour! 124! 5. Conclusions! 127! V. Formants of Contemporary Muslim-Majority Legal Systems! 128! 1. Introduction ! 129! 2. Muslim-majority Legal Systems and Islamic Law ! 130! 2.1 Sources of Islamic Law! 133! 2.2 Objectives of Islamic Law (Maqasid as-Shari’ah)! 138! 3. The Evolution and Contemporary Practice of Islamic Law! 141! 3.1 The Potential of Islamic Legal Modernism! 143! 3.2 The Role of Jurists in the Formation of Islamic Law ! 146! 3.3 The Voice of Al-Azhar in Transitional Justice in Muslim-majority settings! 150! 4. International Law in Muslim-majority Legal Settings! 153! 5. Conclusions ! 156! VI. Transitional Justice and Legal Truths in Muslim-majority Legal Systems! 157! 1. Introduction! 158! 2. Transitional Justice from International to Muslim-majority Legal Systems! 159! 2.1 The overlap of substantive aims of Islamic law and ICL/IHRL! 161! 2.2 The convergence of procedural standards of Islamic law and ICL/IHRL! 165! 3. Legal truths and historical transitional justice through Islamic law! 170! 3.1 Extrajudicial legal truths in Islamic law! 174! 3.2 Ethics and legal truths in Islamic law! 177! Page "6 of "216 4. Time to look for a right to the truth under Islamic law?! 181! 5. Conclusions! 184! Conclusions! 186! Towards a Global Paradigm of Transitional Justice where International and Local Norms Meet ! 187! Taking Transitional Justice to Muslim-majority Legal Systems - And Finding Something to bring back to International Law! 188! Bibliography!