Year: 2015
Type: article
Abstract: Transitional justice discursively occupies a two-dimensional space mapped by understandings of ‘transition’ and ‘justice.’ Transition is defined very broadly, understood as any regime change, however achieved, because transition is defined contingently, as something that is normatively presumed to have the goal of liberal democracy. The edited volumes under review, particularly that discussing the Arab Spring, thus include in their remit states where a regime has fallen but liberal democracy is far from being consolidated, where vicious civil wars are underway (as in Syria or Libya) or authoritarianism has been reasserted (as in Egypt). Justice, in contrast, is defined narrowly. While the idea of justice is presumed to be represented by a situation where the entirety of human rights law is respected, in both theory and practice transitional justice focuses largely on truth and accountability for past violations, prioritizing civil and political rights over other rights, rather than explicitly building justice for the future. The books reviewed here represent an extensive survey of the practice of transitional justice in recent decades and an articulation of global discourses of transition and justice. This review seeks to use the three volumes and the dozens of contexts they address to investigate this discursive space, to interrogate how in practice transitional justice is understood and articulated, and to suggest what a future practice could look like. The future of transitional justice is increasingly driven by its past. Practice has become standardized and, as noted in Transitional Justice and the Arab Spring, a ‘transitional justice industry’ (p. 69) has emerged to advocate for particular approaches. These three volumes reveal the extent to which a global template exists for the mechanisms that are both advocated and often funded by an international network of states, donors and nongovernmental organizations. While the Asia-Pacific and Arab Spring books articulate this globalized discourse, few of their constituent chapters acknowledge either the extent to which practice is mimetic or the politics that underlie it. As a result of the leading role played by actors from the global North, there is an intimate connection between transitional justice and an ideological liberalism, with significant implications for dealing with violent pasts.1 While there has been a range of critiques of transitional justice that have impacted on rhetoric and scholarship, little fundamental change to practice has taken place in several decades. Since its emergence in the 1980s, the contexts in which transitional justice unfolds have shifted from postauthoritarian middle-income countries to postcolonial states facing legacies of conflict and extreme poverty. Despite this, transitional justice appears to have become ossified in an incarnation that is directly linked to the transitions of the post-Cold War era and the hubris of the ‘end of history.’ Practice takes little account of the new actors and ideological drivers of change beyond the liberal that have catalysed recent regime changes. The books under review are histories in the sense that they seek to understand and analyse the past through a lens of addressing legacies of human rights violations. They represent three different eras of transitional justice practice: historical (in Europe), recent (in the Asia-Pacific) and future (the Arab Spring). The volume on Europe explicitly concerns the use of history and memory in transitional justice, and sees the history of the field as allowing for policy evaluation that can inform the future. It addresses three types of transition in Europe: approaches to the historical memory of the Second World War, transition from authoritarianism in Greece, Spain and Portugal, and transition from communism in Hungary and Poland. As such, much of the material refers to processes and policies that emerged before transitional justice was codified in the 1990s. The book does, however, put at its centre the traditional preoccupation of transitional justice: to punish or not? It confirms that in Europe following both the Second World War and the fall of communism, despite an initial wave of prosecutions, impunity was tolerated on a significant scale and a focus put on lustration in most cases. In this sense, the volume is hugely successful in challenging some of the shibboleths of transitional justice and showing that much of contemporary practice is not evidence based. Transitional Justice in the Asia-Pacific represents a recent history of transitional justice in a set of postcolonial Asian contexts, namely Sri Lanka, Aceh, Cambodia, East Timor, the Solomon Islands and South Korea. It is the most conventional of the three volumes, with an introduction that represents a concise and largely uncritical summary of thinking and practice around justice in transition, including a focus on debates – such as that of justice versus peace – from which scholarship has largely moved on. The book also reflects global approaches in emphasizing accountability as the key feature of justice in transition. The contexts examined here represent local manifestations of a globalized practice, and there is surprisingly little of the ethnographic trend in transitional justice scholarship that would mark the contexts of this region as different from any other. Transitional Justice and the Arab Spring is focused not on the past but on the future of the Middle East and North Africa, and takes a largely thematic approach to examining the various actors, both local and international, and the dynamics at play in a region that has experienced more political change in the last five years than in the previous half-century. To their credit, editors Kirsten Fisher and Robert Stewart explicitly suggest that transitional justice approaches must push for ‘creativity’ and ‘local solutions,’ and that the Arab Spring can impact on transitional justice, as well as vice versa. The book also seeks to understand how a liberal transitional justice can engage with an often illiberal political Islam, as well as address the issues of poverty and unemployment that drove the revolutions of the Arab Spring. The timing of the book and the parlous state of the transitions of the Arab Spring dictate that much of it concerns regional and global examples rather than ongoing transitional justice mechanisms, although it is curious that so little attention in the book is given to Tunisia, the one Arab Spring context in which a broad transitional justice process is underway. The most interesting chapters are those that understand transition as being dependent upon political and social factors that are traditionally marginalized in studies of transitional justice, and those addressing political Islam and gender can most inform thinking on potential processes. Transitional Justice and Memory in Europe draws attention to the problematic idea of learning from the past, given that the analogies made between past and present and the particular lesson extracted is always contingent upon the political context. In the introduction, editor Nico Wouters suggests that a historian can use analogous reasoning in a more nuanced and comparative way that evades the emotional and political response of popular discourse, discriminating between a detached positivism and political and sociological interest in the present. The limits of such positivism to steer transitional justice are however immediately apparent when one seeks to ask if a particular policy will work – a question that can only be answered contingently, depending on what one seeks to achieve. This demonstrates one constraint of contemporary transitional justice practice, in that an a priori assumption is made that liberal democracy is the overriding aim of any process, independent of what victims or citizens in any one transitional state might see as its goals. A section title in Transitional Justice and the Arab Spring, ‘Getting Arab Spring transitional justice right,’ is an apt representation of the tyranny of a prescriptive global practice, suggesting that there might be a single correct way of dealing with the past in the entire Arab world. This danger is further represented in the volume by chapters discussing transitional justice in Latin America and Central and Eastern Europe, where, despite multiple caveats about context, facile comparisons are inevitably made (e.g., Libya as Mexico, Yemen as Brazil or Chile, Syria as Central America and Egypt as Argentina in Andrew Reiter’s chapter). The relevance of Latin America in the 1980s to the Arab world in 2014 is unclear and likely little, representing a refusal to acknowledge that not only context but also the global political economy is radically different. The objective of this positivistic model is, however, ultimately to be predictive. Implicit in seeking to learn from past practice is the assumption that universal mechanisms or causalities can be detected and isolated from the unique characteristics of any particular time and place to construct what in the Europe volume is referred to as an ‘applied counterfactual history’ (p. 10). It is clear that useful knowledge can be extracted from past experience, but less clear that those seeking to do this in transitional justice are explicit in describing or even understanding the strict limits of such knowledge. This is well demonstrated by quantitative work in the field, as typified in the contribution of Leigh Payne and Kathryn Sikkink in Transitional Justice in the Asia-Pacific, where data from 76 contexts are used to draw conclusions, on the assumption that there is no significant dependence on any variable beyond the limited number of human rights-related variables identified by the authors. What the range of contexts discussed in the three books does demonstrate is the falsity of any assumption that culture, politics and history can be neglected in steering a transitional justice process. Luc Huyse in the Europe volume goes as far as to write that ‘practice and scholarship have led to the conclusion that all cases of justice after transition are unique’ (p. 351) – an observation that would seem effectively to deny that there is such a thing as transitional justice practice. One great contribution of Transitional Justice and Memory in Europe – since many of the processes discussed occurred before ‘transitional justice’ was acknowledged as such and its mechanisms standardized – is that the case studies demonstrate how broad the range of relevant processes for dealing with violent pasts can be, and how memory of the past emerges subject to a range of social and political processes often remote from the state. Memories of war and dictatorship have emerged subject to myth-making and fabrication, as well as from history, but predominantly from a series of narratives in which the institutional was never paramount. The book also challenges a contemporary preoccupation with truth recovery, claiming that ‘selective forgetting is even more important’ than remembering (p. 359). European history highlights that amnesty, increasingly challenged by a normative and absolute prohibition of impunity for the most serious crimes, has a long history that suggests it need not lead to the recurrence of violations. Instructively, the book sends a strong message that dealing with a painful past ‘is a process that stretches over several generations’ (p. 365). In Transitional Justice and the Arab Spring, Hugo van der Merwe makes the point that while the transitional justice agenda has grown beyond simply balancing retribution and peace to including addressing the roots of conflict through the socioeconomic, healing and reconciliation, it is still centred on a few core mechanisms. As a result, ‘the debate … becomes constrained by the already-existing set of tools established in other (possibly unrelated) transitional contexts’ (p. 228). One threat this presents is that the task of addressing past legacies of rights violations may be assumed to be limited to a finite number of well-defined mechanisms, labelled as such. This has led to an extensive literature in which the impact of transitional justice mechanisms is evaluated in detachment from the broader social and political context, resulting in an overemphasis of the importance of such mechanisms in comparison with the end of conflict and the wider political, social and economic impact of the liberal peace. Transitional Justice in the Asia-Pacific, for example, falls into this trap by seeing the fact of prosecutions as impact – a strange and limited way to judge the institutionalization of justice. In the conclusion, editors Renée Jeffery and Hun Joon Kim then undermine this focus on accountability by stating that ‘it is unclear whether a correlation exists between levels of accountability and outcomes,’ here understood in liberal terms as ‘rights, peace and democracy’ (p. 247). Particularly in the postcolonial contexts of Africa and Asia, which have become the main stage for 21st-century transitional justice, questions have emerged over the extent that formal mechanisms have a significant impact on the everyday lives of ordinary citizens. In her chapter on the Extraordinary Chambers in the Courts of Cambodia, for example, Kirsten Ainley points out that the Court is largely unknown to a fact that must its three books are by the of work that how victims and citizens are by authoritarianism and and by to address their a practice that can be led by its presumed directly to how transitional justice Implicit in any understanding of transitional justice is a theory or of change that by addressing past violations future for human rights will be given the limited types of mechanisms that have become it is understood that by about violations, their and change will The of change that the and one role of volumes such as those reviewed addressing multiple contexts is to on what those of change are and to their little of the literature of transitional justice such of change, or even seeks to the books under review, only the volume on Europe to seek to how transitional justice a for impact can be it can be the process by which social and political change in transition. 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The becomes one of how can those most by histories of and their to address legacies of While a rhetoric of and has become in transitional justice, the books under review predominantly not the and of citizens of the contexts discussed is little for but rather a practice is its presumed universal The is a rights practice that seeks to engage with the a space in which local and and political in their local the state and international of … with rights, and in political a transitional justice will have to engage with a range of actors do not the liberal of rights but – the social of the Arab Spring and the they – have increasingly driven transition. is by the in in 2014 that to the and ‘the of and of that is by the of and the of the This understood justice as accountability for both the violations of and the economic crimes, driven by of radically from those of global rights practice, including and and democracy in such as this, or those that drove the revolutions of the Arab Spring, the range of and to both through an of and through in that is particularly for those traditionally from political processes and transitional justice mechanisms. As change and political increasingly around such actors, an is to a and politics of transition that Transitional justice as a and a practice a more than any since the of the in the While to transitional justice and the to it are than its practice has become a that appears more to the global political and economic that it. The future of transitional justice would seem to either a of its mechanisms, despite of evidence of their or a that with what the terms ‘transition’ and in any one context, and seeks to These volumes to this task by how transitional justice is understood and how its practice has been both and to the broader One approach to transitional justice relevant to the it to is to it from a practice that is the of a particular time and a transitional justice would from a dependence upon the and of liberal politics and and seek an approach in the with which the citizens of transitional states This could a practice, in which contexts and could be to their to dealing with the past, not to a human rights lens but from global liberal practice what is and seeking process most with local
DOI: 10.1093/ijtj/iju031
Author: S. Robins
Institution: University of York
Language: English
Topic: War, Law, and Justice
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W2113049566