Book Review – Part I: Research Handbook on Transitional Justice

Research Handbook on Transitional Justice, Edited by Cheryl Lawther, Luke Moffett, Dov Jacobs, Edward Elgar Publishing, £195, 576 pages

If you are planning on taking a course on transitional justice or are simply interested in knowing more about it (what it is or what it is claimed to be), or if you are working in the transitional justice field or its close cousin, the development field, I recommend Research Handbook on Transitional Justice, edited by Cheryl Lawther and Luke Moffett of Queen’s University Belfast and Dov Jacobs of Leiden University (Transitional Justice).

Divided into four parts, Transitional Justice has 25 chapters. Part I is devoted to the concepts of transitional justice – what it is or what it should be (or not). Other than some general notions of what transitional justice attempts to achieve, finding a definitive definition of what it is can be elusive. While transitional justice has developed and evolved over time, there seems to be no firm consensus among scholars and professionals as to the parameters of transitional justice.

In the introduction, Lawther and Moffett reveal the overarching theme that permeates throughout Transitional Justice:

Transitional Justice comes from a number of different philosophical positions, each of which aims at dealing with [the legacy of large-scale abuses of human rights and/or violations of international humanitarian law]. These different philosophies are only loosely tied together, so that the scholars and practitioners themselves only vaguely speak the same ‘language’. Scholars of restorative justice come from significantly different philosophical positions, for example, and are much more likely to promote community-centred processes that value the participation of the victim than are the drafters of the Rome Statute of the International Criminal Court. As such, the instruments with which they work are very different both qualitatively and quantitatively, not to mention the differences in the expected outcomes of each. (p. 15)

The strength of Transitional Justice lies in its efforts to move the discussion from definition to practice. How one goes about identifying the job of transitional justice, and how one goes about getting it done, is, to a large extent, examined in some detail and from a wide variety of perspectives

Part I deals with concepts in transitional justice. Of the eight chapters in Part I, three chapters stand out as exceptional: Catherine Turner’s Transitional Justice and Critique (Ch. 3), Padraig McAuliffe’s Transitional Justice’s Impact on Rule of Law: Symbol or Substance? (Ch. 4), and Peter Dixon’s Transitional Justice and Development (Ch. 8). This is not to say that the other chapters were of a lesser quality or interest. In any event, Part I is a sound basis for what is to follow in Parts II and III.

Part II deals with the actors of transitional justice. Of the six chapters, I found particularly interesting and thought-provoking Hugo van der Merwe’s and Moya Schkolne’s The Role of Local Civil Society in Transitional Justice (Ch. 11), Laurel E. Fletcher’s and Harvey M. Weinstein’s Transitional Justice and the ‘Plight’ of Victimhood (Ch. 12), and Andrea Breslin’s Art and Transitional Justice: The ‘Infinite Incompleteness’ of Transition (Ch. 13).

Mildly unsatisfying was Refik Hodzic’s and David Tolbert’s Media and Transitional Justice: A Dream of Symbiosis in a Troubled Relationship (Ch. 14). Their treatment of the media in post-conflict areas was measured. Hodzic’s and Tolbert’s reference point was primarily the states that emerged from the former Yugoslavia. Historically, and even today, there is no tradition of an independent media in these states. The media in these states (as elsewhere) is affiliated with political parties or identified with a particular ethnic group, thus making it virtually impossible for media outlets to objectively present the news. Efforts to improve media ethics and foster objective reporting as part of transitional justice initiatives – at least in places where the media is not a tool for imparting objective news, but for advocating, propagating, and misinforming – are likely to yield few tangible results. Their discussion of the media coverage of the International Criminal Tribunal for the former Yugoslavia trials by SENSE is overly rosy. From my experience, I found SENSE to have a pro-prosecution bias, especially concerning accused of particular ethnic or national origins. Disappointedly, Hodzic and Tolbert offer no observations on the use and potential abuse of social media in transitional justice – a topic that can easily be a chapter of its own. The use and abuse of social media (and media in general) is certainly relevant and topical, as we can see from what is being revealed about Russia’s hacking and concerted efforts through various social media outlets to influence the 2016 United States elections. Perhaps this manipulative use and abuse of social media in transitional justice settings (or any setting for that matter) was not as obvious to Hodzic and Tolbert (or the editors) when this chapter was sent for publication.

Part III deals with mechanisms of transitional justice. Of the seven chapters, Tom Hadden’s Transitional Justice and Amnesties (Ch. 18) deserves honorable mention. I found his legal analysis on the application of amnesties exceptionally refreshing.  Though I spent considerable time on the issue of amnesties when representing Ieng Sary in Case 002 before the Extraordinary Chambers in the Courts of Cambodia (ECCC) and in blogging about this issue concerning Saif al-Islam Gaddafi, Hadden’s approach to and treatment of amnesties got me thinking and re-evaluating.

Part IV examines transitional justice in practice by looking at four examples: Guatemala, Cambodia, Palestine, and Central and Eastern Europe. This is the weakest part of Transitional Justice. All four chapters are generally informative. However, I found wanting and disappointing. Rachel Killean’s Pursuing Retributive and Reparative Justice within Cambodia (Ch. 23). Perhaps my expectations are too high, considering that I had been involved in development programs (arguably, an indispensable part of transitional justice, depending on how one defines it) in Cambodia from 1994 to 1996, closely followed the debates and efforts to establish the ECCC starting from 1997, and have been an International Co-Lawyer at the ECCC since 2007. Even more disappointing was Brendan Ciáran Browne’s Transitional Justice and the Case of Palestine (Ch. 24). Considering the complexities involved and the limited space available for covering this case study (and I remain skeptical whether this is a transitional justice case example, especially considering the politics involved), Browne’s treatment of the Case of Palestine is superficial and skewed.

Despite any misgivings (some may say, misunderstandings) I may have about what transitional justice is or how relevant it may be as a label, Transitional Justice is an excellent collection of essays on 25 different topics by 25 distinguished experts. Every chapter is well-written, making this handbook with its dense material and heavily footnoted rich sources, an easy and informative read.

Mind you, even after reading Transitional Justice you may still be left with some burning questions unanswered. What exactly is transitional justice? Why is it necessary to (arbitrarily) carve out a nuanced yet malleable niche and label it transitional justice? Is transitional justice not part and parcel of the wider and deeper concept of promoting and fostering comprehensive justice in post-conflict states or states in transition with a history and ongoing tradition of human and civil rights violations – of all kinds? And more.

Dense, diverse, and didactic, Transitional Justice offers plenty for anyone interested in transitional justice. It is just as useful for teaching transitional justice to law students, as it is useful for provoking thought and challenging firmly-held opinions on what transitional justice is or how to achieve it.

Though pricey, if you are interested or involved in transitional justice and development work, consider adding Research Handbook on Transitional Justice to your bookshelf as a primer or reference book.

In the next post I provide my take on the debates surrounding the topic of transitional justice and outline some of the challenges in achieving transitional justice that I have seen through my experience working in the field in post-conflict areas.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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