The type of remedies these courts may order is in state of flux and through various
mechanisms the European Court of Human Rights is becoming much more flexible with
regards to the remedies it can award.
Expansive remedies tend to close the gap between the “constitutional justice” and “indi-
vidual justice” paradigms discussed above.12.8.2 Protection by Political Bodies
Politicians may be relied upon to protect human rights both domestically and
internationally—domestically, because members of parliament are expected to
legislate in a way that furthers the aim of the bill of rights. Internationally, bodies
like the United Nations Human Rights Council or the Committee of Ministers of the
Council of Europe are political forums in which state representatives are expected
to push a human rights agenda.
Needless to say, political methods of human rights protection are inevitably
politicized, and politicians may see rights as just one more bargaining chip to be
used in negotiating a good outcome, which runs against the whole logic of rights
being trumps. Nevertheless, this is not necessarily a bad thing. For one, an overly
legalistic approach to rights might be too rigid and impractical and lead to counter-
productive results.
Transitional Justice In relation to this there is a very important discussion in the
field of transitional justice. This is a field of study that tries to determine what is just
in societies that are emerging from war, a dictatorship or similar catastrophe (such
as the civil war in ex-Yugoslavia, the genocide in Rwanda, apartheid in
South Africa and the Argentinean and Chilean dictatorships.) The discussion
concerns the tension between justice and peace. Should the emphasis lie on
justice-understood as pursuing the criminals and repairing the harm done to the
victims- or should be emphasis be on peace, on putting conflict behind us and
securing stability and development, maybe deferring criminal prosecution for five
or ten years or indefinitely? A thoroughly legalized vision of human rights often
cannot consider “peace” as an option even if it is shown that an overzealous pursuit
of justice may end up doing more harm than good.
Most of the time, enforcement of rights depends on politicians, and therefore
politicians must be included in the process of human rights protection. Otherwise,
there is a risk that the system will function in a vacuum without any practical effect.
12.8.3 Protection by Experts
Experts can be seen as a category in between politicians and courts. They are not
usually given the power to create laws. There may be several reasons why they can
deemed to interpret the law in an authoritative way, however. They may be anointed
with some official recognition; they can be individuals with a high moral standing;
they can have expertise, which becomes clear from their arguments; or they can
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