Transitional Justice in Law, History and Anthropology

Lia Kent, Melissa Demian, Lia Kent, Melissa Demian

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9781032090771
• eBook ISBN: 9781000084740
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

Transitional justice seeks to establish a break between the violent past and a peaceful, democratic future, and is based on compelling frameworks of resolution, rupture and transition. Bringing together contributions from the disciplines of law, history and anthropology, this comprehensive volume challenges these frameworks, opening up critical conversations around the concepts of justice and injustice; history and record; and healing, transition and resolution. The authors explore how these concepts operate across time and space, as well as disciplinary boundaries. They examine how transitional justice mechanisms are utilised to resolve complex legacies of violence in ways that are often narrow, partial and incomplete, and reinforce existing relations of power. They also destabilise the sharp distinction between 'before' and 'after' war or conflict that narratives of transition and resolution assume and reproduce.

As transitional justice continues to be celebrated and promoted around the globe, this book provides a much-needed reflection on its role and promises. It not only critiques transitional justice frameworks but offers new ways of thinking about questions of violence, conflict, justice and injustice. It was originally published as a special issue of the Australian Feminist Law Journal.

INTRODUCTION
TRANSITIONAL JUSTICE IN LAW, HISTORY AND ANTHROPOLOGY

Lia Kent*

1.0 INTRODUCTION

It has become almost axiomatic to suggest that societies emerging from protracted periods of conflict need to find ways to ‘come to terms with’ past human rights abuses. In recent decades, a set of mechanisms and tools known as ‘transitional justice’ has been developed with the goal of assisting states to confront the wrongdoings of repressive predecessor regimes. These mechanisms seek to ascribe individual criminal responsibility for past acts, enact punishment, provide opportunities for truth-telling, produce historical records of conflict and deliver reparations to victims. At its core, transitional justice works discursively to establish a break between the violent past and a peaceful, democratic future, and is based upon compelling frameworks of resolution, rupture and transition.

Over the past two decades, transitional justice, both a field of interdisciplinary scholarship and as practice, has seen an extraordinary rise. There has been a proliferation of war crimes courts and tribunals around the globe and a growing number of truth commissions. Transitional justice is now firmly entrenched as part of peacebuilding interventions that seek to promote stability, liberal democracy and a market economy in post-conflict societies, and has become ‘an article of faith as a catalyst for reclaiming societies in political and social imbalance and dysfunction’.¹

This Special Issue on Transitional Justice in Law, History and Anthropology unsettles many of the assumptions of transitional justice theory and practice by critically reflecting on the analytical frameworks of justice and injustice; history and record; healing, transition and resolution its proponents take for granted. Drawing together contributions from the disciplines of law, history and anthropology, Melissa Demian and I seek to open up critical conversations around these frameworks by exploring how they operate across time and space, as well as disciplinary boundaries. We adopt a broad view of transitional justice, recognising that a range of related mechanisms have been used in different geographical locations to respond to different reports of historical injustice. We acknowledge, too, that what are now termed ‘transitional justice mechanisms’ join a list of many other legal and quasi-legal mechanisms and processes, including Royal Commissions, Boards of Inquiry, magistrate courts, truth and reconciliation commissions, criminal courts (international, national and ‘hybrid’) and local village courts. A common thread running through this Special Issue is that these mechanisms are utilised by governments and, increasingly, international bodies such as the United Nations, in an attempt to resolve complex legacies of violence in ways that are often narrow, partial and incomplete, and reinforce existing relations of power.

Of particular interest to us are the closely linked concepts of resolution and transition. The concept of resolution, which is underpinned by an assumption that conflict is resolvable and that the law is the prime vehicle for achieving this resolution, is consistently reproduced from very large scale institutions (such as truth commissions, national and international tribunals) to small scale ones, such as local magistrate courts and village courts. This narrative is undoubtedly ‘seductive’² because it reinforces an idea that straightforward solutions can be found to complex historical and political problems. Yet, by foreclosing other, more nuanced, ways of thinking about those problems, and about what ‘justice’ may entail, it is also deeply problematic. For instance, narratives of resolution can paper over the extent to which transitional mechanisms do not always ‘resolve’ interpersonal disputes but may, at times, aggravate them. They may also render invisible the many other reasons why people engage with such mechanisms, for instance, to publicly shame family members or reconfigure relationships.³

The concept of transition, by contrast, is commonly applied to nation states, where it is embodied in the suggestion that states will be able to ‘move on’ from violent pasts by undergoing a linear transition from conflict to peace and liberal democracy. Here it helps to enact what Ruti Teitel refers to as a ritual of ‘bounded change’, a political rite of passage that, by representing and responding to certain forms of past violence, and relegating them to the ‘past’, announces a shared narrative of the future.⁴ As the work of Claire Moon has suggested, the narrative of transition is a progress narrative that has a clear beginning (conflict) and a clear end (peace or reconciliation), evolves ‘as if in a linear and developmental trajectory’ and has now come to appear natural or universal.⁵ It is a narrative that is undoubtedly convenient for fragile, post-conflict political elites seeking to consolidate new regimes, enable stable governance and construct new narratives of national identity and unity. It is also useful to post-conflict ‘interveners’ who may be seeking to downplay their own nation states’ contributions to colonial-era harms and reconstruct themselves as ‘saviours’ in its aftermath.⁶ Yet, just as this imagining of liberal societal progress remembers and responds to certain aspects of the past, it forgets others. Overlooked, for instance, are the underlying economic, social and institutional legacies that affect the ability of many so-called post-conflict states to become stable democracies. Many of these are legacies of colonialism. The narrative of transition also works to bolster the post-conflict peace-building ‘industry’ which, worryingly, tends to assume that external experts can implement solutions to conflict that embody universal values without regard to the specificities of local contexts.

That narratives of resolution and transition too often reinscribe, rather than disrupt, gendered power relations, is also apparent. What is easily eclipsed in the narrative of progression from conflict/violence to liberal democracy is that definitions of violence are deeply gendered, and tend to ignore the ‘everyday’ violence experienced by women in the private sphere. It also becomes easy to overlook the extent to which the achievement of liberal democracy does not necessarily equate to improvements in all areas of women’s lives.⁷ Obscured, for instance, is the structural violence and discrimination against women that, in many societies, is rooted in pre-conflict power relations and leads to the continued subordination of women following the formal end of conflict.⁸

This Special Issue seeks to destabilise the sharp distinction between ‘before’ and ‘after’ war or conflict that narratives of transition and resolution assume and reproduce. We also aim to examine the ways in which these narratives can become smokescreens that obfuscate the continuation of past injustices into the present. Yet, we acknowledge, too, that official attempts to enact rituals of bounded change that herald a new beginning are seldom completely successful or all-encompassing. As a number of contributions to the Special Issue show, these attempts often come up against, and are unravelled by, the counter efforts by victims of injustice or their supporters to keep the past alive. All of this is a reminder that there are no bright lines between the past and the present, and that closure can be ephemeral or elusive.

2.0 OVERVIEW OF ARTICLES

Broadly speaking, the contributions to this Special Issue adopt one of three analytical approaches to the investigation of transitional justice frameworks of resolution and transition. Each approach contributes to the project of unsettling these frameworks by analysing them from a slightly different angle. The first set of articles seek to ‘ground’ transitional justice by exploring how it operates across diverse geographic sites and is experienced by different actors. The second set of articles shows that transitional justice needs to be situated as part of a political and historical continuum rather than seen as something new. The third set of articles looks beyond state-centred and legalistic approaches to consider how transitional justice might be conceptualised in more creative, more expansive ways.

2.1 Grounding Transitional Justice: Sites, Voices, Relations

Transitional Justice is often viewed as a universal set of discourses, mechanisms, tools and practices that can be applied uniformly around the globe. The opening set of articles unsettles these assumptions by paying close attention to the ways in which transitional justice ‘travels’. By examining the lived experiences of transitional justice in diverse locations (from Papua New Guinea to Timor-Leste, from Cambodia to South Africa) and amongst diverse actors (village court participants, ‘ordinary’ people and female lawyers), these articles help to show how orthodox assumptions about transition, resolution, justice, injustice and agency are both unravelled and ascribed new meanings within in specific local contexts.

The opening article in the Special Issue, by Melissa Demian,⁹ works to problematise narratives of resolution through a finely grained case study of Papua New Guinea’s (PNG) village courts. Instigated at PNG’s independence, the village court system was intended to provide ordinary people with access to the legal system, and provides a highly public forum in which a wide range of grievances may be brought for general debate. Demian draws on long-term ethnographic observations to suggest that many of the cases managed by the courts ‘very patently do not produce “peace” and indeed may lay the groundwork for future conflict’.¹⁰ What kind of justice is being enacted in the village courts, she asks, ‘if not the “peace” of closure, completion and non-conflict’?¹¹

Focusing on two types of cases that are commonly brought to the village court — adultery accusations and sorcery accusations — Demian suggests that, while there is rarely an identifiable conclusion or resolution to such cases, the ‘having-out of problems in the open space of the court’ often appears to be an end in itself.¹² The village court can also provide an important mechanism of public shaming. Intriguingly, Demian also describes the way in which different people with an interest in a case will deliberately occupy different spatial positions during the court hearings. To explain the significance of these observations, Demian brings into conversation two different conceptions of justice: relational justice, drawn from anthropology; and spatial justice, drawn from legal theory and expounded...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• 1. Introduction: Transitional Justice in Law, History and Anthropology
• 2. Court in Between: The Spaces of Relational Justice in Papua New Guinea
• 3. Sounds of Silence: Everyday Strategies of Social Repair in Timor-Leste
• 4. Women Lawyers and the Struggle for Change in Conflict and Transition
• 5. Justice Claims in Colonial Contexts: Commissions of Inquiry in Historical Perspective
• 6. Whose Reparation Claims Count? Gender, History and (In)justice
• 7. Civil Society and Gender-Based Violence: Expanding the Horizons of Transitional Justice
• 8. ‘They Say That Justice Takes Time’: Taking Stock of Truth Seeking in Peru, Argentina and Serbia
• 9. Prosecuting the Khmer Rouge Marriages
• 10. The Transitional Heart: Writing Poetry on War, Grief and the Intimacy of Shared Loss
• Index