Reviewed by Lesley A. Jacobs, Law & Society Program, York Centre for Public Policy & Law, York University. Email: jacobs [at] yorku.ca.
When political transition and regime change occurs, in particular when the move has been towards democratization, the historical legacy of the previous regime often includes gross violations of human rights and sometimes, indeed, crimes against humanity. The idea of transitional justice is at its core grounded on the belief that there is a need to address that historical legacy rather than just ignore it. This need to take seriously transitional justice stems from its importance for the political stability and legitimacy of the new regime. The most common metaphor is a medical one – heal past wounds before moving on to meet future challenges.
Measures designed to address concerns with transitional justice are not an especially new phenomenon. They are, for example, evident in many of the initiatives made by Congress in the reconstruction period immediately following the American Civil War. However, it was only in the post WWII period that transitional justice received careful scrutiny. The most familiar example is the Nuremberg trials where some individuals from the Nazi regime were held accountable for their actions. Those trials were formal, and the US Chief Prosecutor was Robert Jackson, a judge on leave from the US Supreme Court. A nice contrast is to efforts to address transitional justice in the People’s Republic of China after 1949. There, the government supported a practice of “suku” which was much more informal than the Nuremberg trials. In effect, this practice involved many millions of people telling their stories in public places – village squares, and the like – about the pain and suffering they had experienced during the previous regime and under Japanese occupation, to show how much better off they were under the new communist regime. Unlike the tribunals in Nuremberg, in China neither the ideal of the rule of law nor lawyers played any role in its scheme of transitional justice.
In their new book, TRANSITIONAL JUSTICE FROM BELOW: GRASSROOTS ACTIVISM AND THE STRUGGLE FOR CHANGE, editors Kieran McEvoy and Lorna McGregor have gathered together a collection of articles about transitional justice in many parts of the world, including Colombia, Guatemala, Northern Ireland, Rwanda, Russia, South Africa, and Timor-Leste. The thirteen authors have diverse backgrounds, although many have done research in Northern Ireland. Most of the papers address international law and situate their case studies in a comparative context. What the editors have sought to do is illustrate the diverse ways in which transitional justice is pursued in different countries. [*118]
In her contribution to the book, Lorna McGregor usefully identifies two phases in the development of transitional justice since WWII. The first phase involves familiar quasi-legal institutions such as war crime trials and sanctions. Transitional justice in this stage involved targeting individuals and holding them accountable for their actions by legal means. The Nuremberg trials are of course the paradigm example. The second phase is marked by truth commissions such as those utilized in Latin America and South Africa in the late 1980s and early 1990s. These commissions were concerned less with individual accountability and more with healing, social cohesion, and reconciliation. They typically involved a process that was not modeled on traditional legal dispute resolution. Indeed, these commissions were often premised on granting blanket amnesties for individual wrongdoers. These two phases have produced two corresponding meta-models of transitional justice. One is the trial court model; the other is the truth and reconciliation commission model.
In the international law community, when the need for transitional justice arises, these two meta-models are often presented as exhausting the alternatives. McEvoy and McGregor challenge this, claiming “Transitional Justice is and should be a contested space” (p.2). Various chapters in the book illustrate that neither of these meta-models accurately capture how transitional justice works and that instead there is immense diversity and plurality in the modes of transitional justice. This is evident if you look below the formal institutions at how transitional justice plays out in particular communities. Yet, among international lawyers, the focus is almost exclusively on national transitional justice initiatives. Laura Arriaza and Naomi Roht-Arriaza write,
Indeed, often the local politics can be in tension with national transitional justice initiatives. Catalina Diaz in a chapter on Columbia discusses the community response to the demobilization of paramilitary units and, in effect, the amnesty for ex-combatants under the 2005 “Justice and Peace” Law, enacted by the national government. Under this law, ex-combatants were not required to make reparations to victims. Nonetheless, in the communities where these ex-combatants and their victims both lived, local governments have developed ways to hold the ex-combatants accountable. In the city of Medellin, for instance, Diaz describes a program that returns property and houses held by ex-combatants back to their legitimate owners in spite of the “Justice and Peace” Law.
national-level initiatives by themselves are insufficient to capture the meaning of the conflict for people living in specific villages, towns, ‘hills’, or other local spaces, whose experience may vary widely from that of people elsewhere in the country. When it comes to post-conflict interventions aimed at reconstructing a shattered society, international and national policy-makers have treated countries as an undifferentiated whole . . . such efforts ignore existing local dynamics aimed at reinforcing or transforming the power relations that are often most relevant to people’s lives . . . In transitional justice as elsewhere, all politics is local (p.144).
Many of the chapters distinguish between top-down approaches to [*119] transitional justice and transitional justice from below. The main idea is that top-down approaches are directed by international organizations or national governments, typically modeled on one or the other of two meta-models noted above, with little input from local communities or victims about their design. Elizabeth Stanley, in her chapter on transitional justice in Timor-Leste, effectively makes the point that top-down approaches can be ineffective at addressing the injustices that underpin the conflict. The context for her study is the treatment of the Timorese minority by the Indonesian majority and national government. Stanley argues that national transitional justice schemes provided political cover for many Indonesian political elites, marginalized and “othered” the Timese minority, and failed to problematize the power structures in Indonesian society. Yet, transitional justice from below schemes have a host of other problems, many of them stemming from a lack of critical distance from cultural traditions and practices. In Timor-Leste, Stanley emphasizes the corrupting influence of nepotism and the ways in which women are silenced in the process.
The lingering question in the book is the extent to which the rule of law, lawyers, and judges are a constitutive part of transitional justice. Clearly, in the case of the meta-model of the trial court, there is no real question or contest. But, for those who favor the meta-model of the truth commission or pure bottom-up approaches to transitional justice, it is less clear. Kieran McEvoy, in his chapter, tries to make the case that, while “law matters” in transitional justice, its significance is often greatly exaggerated, especially by legal professionals. And this leads to an unnecessary distance between schemes of transitional justice and “justice which is actually ‘embedded’ in communities that have been directly effected by violence and conflict” (p.29). Instead, he argues that there is need to recognize the limitations on law and its functions, that there exist human rights traditions outside the legal paradigm, and that many of the injustices that are the subject of transitional justice schemes are best understood through an interdisciplinary criminology. Whilst all of these points strike me as reasonable, it would, I believe, have been instructive in the book to have a case study that examined a transitional justice scheme that genuinely did not rely on law whatsoever such as the example of “suku” from the People’s Republic of China I mentioned at the outset.
© Copyright 2009 by the author, Lesley A. Jacobs.