Impressions on the State of the Art in Transitional Justice

Post-conflict justice

Many who studies Transitional Justice now consider themselves as Transitional Justice scholars (Photo: University of Minnesota)

I had the opportunity to attend the four-day academic marathon that is the International Studies Association (ISA) annual conference last week in Montreal. The opportunity gave me the chance to meet and hear from those at the vanguard of transitional justice. Inspired by Alana Tiemessen’s post at Global Transitional Justice, I decided to share my thoughts on the state of the art in transitional justice.

1. The most striking development, in my view, is that those who study transitional justice (TJ) are challenging the boundaries of what typically constitutes TJ. What falls within the remit of the field has expanded dramatically. TJ scholars are increasingly considering oft-neglected yet critically important subjects: Bronwyn Leebaw is examining the question of resistance and relating it to the mandates of truth and reconciliation commissions; Mark Drumbl is challenging the victim-perpetrator perceptions of child soldiers; Benjamin Schiff is asking what the relationship between the Responsibility to Protect (R2P) and the International Criminal Court (ICC) is; Chandra Lekha Sriram is relating the conflict resolution paradigm of power-sharing to the capacity to achieve justice in post-conflict societies. Next year, I hope to present on post-conflict architecture/reconstruction and transitional justice reconciliation. In short, TJ is increasingly creative and shaking off the traditional notion that only trials and truth commissions fall under its mandate.

2. Transitional Justice sees itself as a discipline. For some this might be obvious, but for others (including myself), not so much. I asked numerous individuals at the ISA whether they considered themselves “TJ scholars”. Most said they did. Further, as Tiemessen points out, there has been a sharp increase in TJ courses. There are obvious benefits and risks to this development. As a discipline, TJ can carve out an analytical space for itself and begin to develop methodological and unique disciplinary traditions. However, TJ is an area of study that draws on numerous other fields – law, ethics, and anthropology, etc. I, for one, consider myself a conflict and peace studies scholar who studies TJ rather than a TJ scholar. There is a risk of cutting TJ off from other disciplinary traditions on which it relies. It is important to remember that not long ago, TJ was wrestled from being almost exclusively within the legal domain.

transitional justice

Transitional Justice as a field of study has become increasingly self-reflexive and scholars have begun exploring oft-neglected issues (Photo: Cambridge Transitional Justice Research Network)

More fundamentally, there remain important questions to ask as to what “TJ” means and what it assumes. First, the term “transitional justice” implies that justice is necessary in transitions. A few years ago, this may not have been problematic. However, with recent studies by Mark Freeman, Louise Mallinder, and Leigh Payne (et al) on the question of amnesties, not doing justice is as much a choice within transitional justice as doing justice. Second, what exactly states are meant to transition to remains largely assumed – and thus omitted – in TJ literature. What is the end-point of the transition in which justice is meant to play a role? For some, it is clear. The end is a liberal polity and TJ forms both an element and a conduit of the liberal peace project. This remains, however, a largely unexplored assumption of TJ.

3. Amnesties are all the talk in TJ. Some of the most fascinating academic work being done right now is on amnesty laws for past human rights violators. TJ has long suffered from treating concepts like “justice”, “truth”, “reconciliation”, etc. as monolithic. However, past years have seen challenges to this approach. Freeman (2009) and Mallinder (2008) have helped to unpack the concept of amnesty and problematize it in important ways. Mallinder, for example, notes that amnesties differ along three lines: who is amnestied, what crimes are amnestied and whether amnesties are conditional or not. The empirical work by Payne et al poses a serious quandary: they illustrate that amnesties, in combination with trials, have positive effects on human rights and democratic development. I will post a blog looking at these issues more closely soon, but the nexus of problematizing and identifying different types of amnesties along with early empirical findings hold great promise for better understanding the impact of different responses to past atrocities.

4. Whither the peace versus justice debate? TJ appears to have largely moved on from the so-called “peace versus justice” debate. On a selfish note, this makes my life easier as the debate becomes less cluttered. More importantly, my guess would be that this is the result of frustrations over what has increasingly become considered an “artificial debate” and a “false dichotomy”. Critically, however, the move away from the debate certainly is not because there is a settled understanding of how particular forms and combinations of transitional justice mechanisms affect certain types of peace.

Amnesty Laws

Numerous scholars, including Louise Mallinder (pictured), have challenged monolithic conceptions of amnesty (Photo: University of Ulster)

5. Methodological confusion. TJ as an emerging field of study remains uncertain and, indeed, self-conscious of the methodologies that are employed. Whether the effects of TJ are best measured in single-case studies, large case studies or comparative case studies; whether TJ is best accessed through quantitative or qualitative measures; and how to relate TJ to other elements of post-conflict transitions such as democracy, demobilization and disarmament, security sector reform, peace, etc. all remains unclear. This struggle and uncertainty, however, is a good thing for scholars of TJ. Most of the early work done was methodologically unsophisticated, unreasonably normative, and empirically unstable.

All of these elements point to a maturing field of study and one which is increasingly willing to challenge the legitimacy of its own assumptions and long-held claims. In sum, TJ is not only a fascinating area of study to be involved in but is clearly vigorous and healthy.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Amnesty, Liberal Peace, Transitional Justice. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s