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Shackel, Rita --- "Transitional Justice Theories edited by Susanne Buckley-Zistel, Teresa Koloma Beck, Christian Braun and Friederike Mieth" [2014] CICrimJust 26; (2014) 26(2) Current Issues in Criminal Justice 263


Review

Transitional Justice Theories by Susanne Buckely-Zistel,

Teresa Koloma Beck, Christian Braun and Friederike Mieth (eds), Routledge, 2014, 228pp (ISBN 9780415822107)

Rita Shackel[*]

Introduction

This publication presents the reader with a series of questions that probe the theoretical contours and conceptual scaffolding of transitional justice: What is transitional justice? What are the objectives of transitional justice? What assumptions guide discourse and practice in the field? How does transitional justice relate to other disciplines and fields of study and practice? What are the parameters of transitional justice; and who are the actors in the field? These are all important and indeed fundamental questions in understanding transitional justice and what the concept has to offer in rebuilding post-conflict or postauthoritarian communities and responding to the needs of these communities.

This publication is significant because it is the first published volume to examine the theoretical underpinnings of transitional justice as a field through multiple lenses. It creates a reflexive space to consider the attempts that have been made to date to frame the subject conceptually and how such efforts have influenced understanding, use and development of post-conflict justice.

Background to the volume: what is transitional justice?

Transitional justice as a recognised ‘field’ of study is relatively new. The term ‘transitional justice’ seems to have emerged in the literature in the early 1990s (Kritz 1995). The United Nations (UN) has defined transitional justice as ‘the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’ (UN 2004). However, some scholars continue to interrogate whether transitional justice can legitimately be seen to constitute a coherent field of study (p 2). Christine Bell (2009) argues that transitional justice rather than a field of inquiry is a ‘label or cloak that aims to rationalize a set of diverse bargains in relation to the past as an integrated endeavour, so as to obscure the quite different normative, moral and political implications of the bargains’ (p 6). For Bell, transitional justice does not constitute a field of study that needs to be brought together in pursuit of coherent development; rather, its interdisciplinarity is ‘part of the legitimating discourse of transitional justice’ (p 6). This transdisciplinarity of transitional justice is a key driver behind, and indeed focus of, the current volume (p 8). The collection draws on both normative and critical perspectives from several disciplines, including political science, sociology, philosophy and psychology, to bring together varied theoretical approaches to explore the dynamics at work in processes commonly associated with the notion of transitional justice (pp 1, 8).

The volume’s focus and contribution to the field

This volume is an edited collection of 10 chapters; contributors to the volume include leading scholars working in the fields of peace and post-conflict studies and related areas. Their work draws on a range of theoretical frameworks and disciplines and their analysis is situated within different post-conflict settings.

The volume may be seen to be arranged around four dimensions of transitional justice that usefully frames inquiry into its nature and trajectory of development. At the point of departure is the extremely heterogeneous nature of the field (p 2) — a fact that may explain the lack of a common theoretical language in the field and the very fluid and highly negotiable nature of the boundaries of transitional justice. Second is the characterisation of transitional justice as a field driven by practice (p 2). Indeed, as Max Pensky has written, the transitional justice field is oriented so strongly towards practice that it almost seems as if theorists are not needed (cited p 3). Third, transitional justice ‘appears to be continually in motion’ (p 3). The concept of transitional justice seems to be expanding in its application to contexts beyond those to which it was originally applied, for example, the concept rapidly extended beyond its original ‘punitive understandings of justice’ (p 3) and has expanded to contexts devoid of any form of political transition (p 105). Most recently, transitional justice is being used in pursuit of socio-economic justice (pp 28–31). This recent focus has sparked debate around how transitional justice is, and should be connected to development work (Mani 2008; Duthie 2008). Finally, a major theoretical concern (and a practical one as well) for transitional justice relates to how its international or global dimension is to be applied to local contexts (p 3).

These different dimensions and the conceptual challenges they raise for transitional justice are explored in the volume. The volume is divided into two distinct parts. Part I, Theorising Transitional Justice, presents a discussion of varied attempts to reform the field of transitional justice from an internal perspective. The five chapters in this part recognise that current notions of transitional justice may be deficient. The contributors seek to situate transitional justice processes in particular normative frameworks or to deepen understanding of the relevant social processes involved.

In Chapter 1, Wendy Lambourne explores the concept of transformative justice which extends beyond transitional justice legal mechanisms to include ‘a transformation in social, economic and political structures and relationships’ (p 20). She argues that what is needed is a ‘syncretic or integrated approach to restorative and retributive justice’ (p 20). The power of this chapter is derived from the author’s theorisation by drawing on a wide array of incountry case studies; this fortifies her argument that it is imperative to include local communities in the design and development of transitional justice mechanisms in order to build sustainable peace. In Chapter 2, Nevin T Aiken extends consideration of the social dimensions of transitional justice by exploring the role of learning and social change in achieving transitional justice. Aiken argues that in divided societies ‘greater attention must first be paid to exploring how these justice interventions interact with politics of identity including intergroup violence’ (p 40). His thesis is that transitional justice interventions will contribute to reconciliation only to the degree that they ‘serve as crucial catalysts for social and psychological processes of “social learning” between former enemies’ (p 41). The importance of social learning in conflict transformation as a precursor for reconciliation is well recognised (Nadler, Malloy and Fisher 2008); however, in practice it seems to be an element of transitional justice that is often forgotten. Chapter 3 focuses squarely on the issue of reparations. Here Lisa J Laplante argues that transitional justice ‘challenges the traditional legal notions of “reparative” or “corrective justice” associated with a court calculating the amount of damages that a specific defendant owes for harm caused to an individual plaintiff’ (p 67). Laplante offers a justice-based theory of reparations. Her theory views reparations as functioning along a justice continuum (p 68). Consistent with the spirit of the volume, Laplante asks, ‘Why bother with a theory of reparations?’ In response, Laplante emphasises the dual function that theorisation plays. On the one hand, theory guides ‘how we think about and understand the role of reparations in transitional justice’, but importantly also ‘how to assure the quality control of their design and implementation’ (p 67). Here Laplante exemplifies the nexus between theory and practice that is so often ignored. In Chapter 4, Kora Andrieu provides a nuanced analysis of the normative foundations of transitional justice in political liberalism by drawing on Jon Rawl’s theory of justice. Andrieu’s chapter extends critique of prevailing notions of justice. In the final chapter in this part, Thomas Obel Hansen explores how transitional justice has evolved from an extraordinary measure to a normal one (p 105).

In his analysis, Obel warns that expanding the reach of transitional justice to settings beyond those that involve transitions to peace and democracy risks diluting the utility of transitional justice for both academia and practice.

The second part of the volume explores the limits of transitional justice. Jelena Subotic in Chapter 6 draws attention to the link between international and local politics. She argues that the strength of transitional justice is effectively diluted when transitional justice mechanisms are implemented simply to appease the international community. In such cases sustainable peace and security may be jeopardised. In Chapter 7, Susanne BuckleyZistel focuses on the power relations that underpin versions of the ‘truth’ elicited in truth commissions. The point of her analysis is to demonstrate that truth commissions tend to produce hegemonic narratives of the past. Such processes ‘frame what can be said and what has to stay silenced, and who is entitled to speak and who is excluded’ (p 156). Thus the truth established is highly ambivalent (p 158). This discussion pre-empts the conclusion of the final chapter in the volume: that transitional justice and its mechanisms are political projects. Magdalena Zolkos in Chapter 8 presents a fascinating discussion of the role of memory in transitional justice processes. She argues that traumatic memories limit combining the pursuit of historical justice with attending to individual suffering.

In Chapter 9, Teresa Koloma Beck continues this discussion of memory. Beck explores the role of body memory in transitional justice processes. She argues that transitional justice discourse and practice confines the notion of memory to that of mind and ignores memory as attachment to bodily aspects of human existence. In the final chapter of the volume, Hannah Franzki and Maria Carolina Olarte return to an overarching issue and analyse the concept of transitional justice itself. They argue that transitional justice is a highly political project — it encapsulates a particular perspective on institutions, and processes and the contexts in which they are implemented — one that aims to strengthen the global norm of liberal democracy, including market economy. Accordingly, they argue that the kind of justice that transitional justice delivers is unlikely to deliver social justice. In conclusion, the authors urge for critical evaluation beyond normative choices (p 218). Ultimately ‘transitional justice must be seen as part of, rather than a frame for, the societal struggle surrounding the organisation of society and distribution of wealth’ (p 218).

This volume covers an impressive breadth of conceptual discussion of transitional justice. The focus of the volume, however, tends, for the large part, to err towards theorisation of specific aspects of transitional justice, rather than broader and overarching conceptual issues. In particular, the volume engages only tangentially with three conceptual issues in transitional justice that, arguably, are worthy of a more detailed consideration. The first concerns the gender lens of transitional justice; for example, can transitional justice recognise and address gender-based harms and deliver the type of justice that women and girls need? The second issue that the volume glosses over is the interrelationship between transitional justice and other fields of study, namely international criminal justice and human rights law (see, for example, Dixon and Tenove 2013). Third, a related but different issue concerns legal pluralism. Transitional justice operates within a specific social and cultural context and must inevitably recognise and be responsive to local and traditional forms of justice. Despite limited engagement with these issues, this volume is nevertheless a valuable contribution to theoretical understandings of transitional justice for researchers, students and practitioners working in the field of transitional justice.

The significance of this volume as a focus for review in the current journal extends beyond its attention on transitional justice as a field of enquiry relevant to criminal justice more broadly. The exploration that the volume presents also serves to highlight the importance of ‘promoting theoretical enquiries into topics that derive from practical engagement and of the necessity to reflect — on a conceptual level — about the strengths and weaknesses of these activities’ (p 2). This call for conceptual reflection is relevant to many areas of criminal justice practice. This call reminds us as scholars of the importance of unmasking implicit assumptions that underlie core notions of justice and to critically interrogate how such assumptions influence or indeed may limit what justice delivers in practice. To do this, it may be constructive for us ‘to go outside of the particular view of the world’ that created the processes and concepts under question (Okello 2010:277 cited p 4). As scholars we should think beyond our discipline, our specialised area of study, and allow our ideas and critical reflection within our own areas to be enriched by approaches drawn from other contexts where boundaries have been pushed and which offer new and challenging insights that we might apply to our own context.

References

Bell C (2009) ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-Field”’, International Journal of Transitional Justice 3(1), 5–27

Dixon P and Tenove C (2013) ‘International Criminal Justice as a Transnational Field: Rules, Authority and Victims’, The International Journal of Transitional Justice 7(3), 393–412

Duthie R (2008) ‘Toward a Development-sensitive Approach to Transitional Justice’, The International Journal of Transitional Justice 2(3), 292–309

Kritz N (ed) (1995) Transitional Justice: How Emerging Democracies Reckon with Former Regimes, United States Institute for Peace Press

Mani R (2008) ‘Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice and Development’, International Journal of Transitional Justice 3(3), 233–65

Nadler A, Malloy T and Fisher J (2008) ‘Intergroup Reconciliation: Dimensions and Themes’ in Nadler A, Malloy, T and Fisher J (eds) The Social Psychology of Intergroup Reconciliation, Oxford University Press

Okello MC (2010) ‘Afterword: Elevating Transitional Justice Local Justice or Crystalling Global Governance?’ in Shaw R, Waldorf L and Hazan P (eds), Localizing Transitional Justice, Intervention and Priorities After Mass Violence, Stanford University Press

Pensky M (2012) ‘Commentary on Critiquing Core Transitional Justice Concepts’ in Palmer N, Clark P and Granville D (eds), Critical Perspectives in Transitional Justice, Intersentia

UN (2004) Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and PostConflict Societies, UN Doc S/2004/616 (23 August 2004)


[*] Associate Professor, Sydney Law School, Law Building F10, The University of Sydney NSW 2006, Australia; Chief Investigator, Making Transitional Justice Work for Women in Uganda, Kenya and Democratic Republic of Congo <www.justiceforwomen.net.au/home-1.html>. Email: rita.shackel@sydney.edu.au.


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