Whose Justice? Rethinking Transitional Justice from the Bottom Up

This paper argues that transitional justice needs to adopt a participatory approach to achieve longer-term sustainability, shifting away from the top-down 'one-size-fits-all' approach to allow 'voices from below' to be heard and heeded. It critiques dominant interpretations of key transitional justice concepts, and links them to the difficulties of post-conflict transitional justice in a range of violently divided societies. Popular participation and local agency, it is argued, is necessary to achieve ends identified in much transitional justice discourse, and to embed mechanisms for the creation of sustainable peace. A Northern Ireland initiative (the Ardoyne Commemoration Project) will be explored in-depth, illustrating how a bottom-up 'truth-telling' process can make a significant contribution to transitional justice and casting doubt on the validity of the deference to legal dominance in current policy and practice. The paper recommends that knowledge available in development studies and participatory theory be applied more clearly in debates and approaches in transitional justice.     

Transitional Shortcuts to Justice and National Identity

National legal systems undergo profound changes when they are confronted with undemocratic power seizure. The same occurs when they experience a transition (back) to democracy. Thus far, these two types of transition have been studied in relative isolation. Nevertheless, it seems that both undemocratic usurpers and democratizing regimes affect the role of fundamental rule‐of‐law principles in similar ways. This article compares both types of transition and suggests that pragmatism and national identity are the driving forces behind similar legal mechanisms, affecting legal principles, in those two forms of transition. Drawing on Carl Schmitt's idea of the state of exception and Ruti Teitel's work on transitional justice, this article shows that both kinds of transition share the same fundamental legal structure.     

Prelapsarian State: Forgiveness and Reconciliation in Transitional Justice

Since South Africa's Truth and Reconciliation Commission (TRC), 'reconciliation' is now an authoritative discourse governing political transition. Reconciliation governs the 'moral reordering' of national communities in the wake of conflict and transition to more democratic regimes by enquiring into, and attempting to address, past gross violations of human rights perpetrated, in the main, against civilian populations by the state and its agents. Reconciliation eschews retributive justice in favour of 'restorative' modes of 'dealing with the past', and has come, broadly, to be institutionalised by the truth commission. South Africa's TRC animated theological discourses of forgiveness and Christian reconciliation in order to legitimise and endow with moral resonance the project of transitional justice. This article enquires into the political effects of such an animation, and investigates the performance of forgiveness and reconciliation as metaphor and narrative.     

Beyond Legalism: Towards a Thicker Understanding of Transitional Justice

The field of transitional justice is increasingly characterized by the dominance of legalism to the detriment of both scholarship and practice. The first part of the paper examines what is meant by legalism and its consequences in the field through a number of overlapping themes: 'legalism as seduction', the 'triumph' of human rights, and the tendency towards 'seeing like a state'. The second part considers a number of correctives to such leanings which are analysed as encouraging legal humility, exploring the human rights as development axis, and finally developing a criminology of transitional justice. As law's place at the heart of transition from conflict is now secure, the time is right for a more honest appraisal of the limitations of legalism and a correspondingly greater willingness to countenance the role of other [non-legal] actors and forms of knowledge. 'Letting go of legalism' will both thicken the subject and deliver more effective change on the ground.     

Enter Ghost: Haunted Courts and Haunting Judgments in Transitional Justice

How can we account for trials in which the judgment speaks not only to and about the defendants and their deeds, but also about injustices from a more distant past? Building on approaches to ghosts and haunting by Jacques Derrida and Avery Gordon, I propose to examine a set of the German post-1990 trials for human rights violations committed in the former East Germany as instances of haunted justice. Here, the courts not only adjudicated the present cases, but also tried to ‘go back and make whole what has been smashed’ (Benjamin 1969) by their own lack of judgment in the failed trials of the Nazi perpetrators. In this instance, the ‘time is out of joint’, and we see the ghosts of the failed trials of Nazi perpetrators standing next to the inheritance of impunity fostered in West German courts, and next to the now present East German perpetrators. What can justice mean in such a complex constellation of injustices? I argue that the ghostly dimension of these cases point to a need for a kind of justice and engagement that can ultimately not be found in courts—yet the courts’ engagement with this ghostly matter is nevertheless important.     

M. Salehi,Transitional Justice in Process: Plans and Politics in Tunisia

Netherlands International Law Review -     

过渡司法及其在原苏联、东欧国家的实践

过渡司法（transitional justice）是指对系统性或者大规模人权侵犯的回应,包括起诉、赔偿、真相调查、机构改革和人事清查等多种机制。过渡司法并不存在＂一刀切＂的模式,由于特殊的历史经历,原苏联、东欧有关国家主要采取了清洗和开放档案等做法。这些国家过渡司法实践留给我们的经验和教训是：不可盲目追随某些人提出的正义口号,每一位公民都应当参与到过渡司法的思考和辩论中来,进而在其目标和手段方面达成共识。     

Calling the Judiciary to Account for the Past: Transitional Justice and Judicial Accountability in Nigeria

Institutional and individual accountability is an important feature of societies in transition from conflict or authoritarian rule. The imperative of accountability has both normative and transformational underpinnings in the context of restoration of the rule of law and democracy. This article argues a case for extending the purview of truth-telling processes to the judiciary in postauthoritarian contexts. The driving force behind the inquiry is the proposition that the judiciary as the third arm of government at all times participates in governance. To contextualize the argument, I focus on judicial governance and accountability within the paradigm of Nigeria's transition to democracy after decades of authoritarian military rule.     

The Importance of Conversation in Transitional Justice: A Study of Land Restitution in South Africa

One of the most replicated findings of the procedural justice literature is that people who receive unfavorable outcomes are more likely to believe that the process was nonetheless legitimate if they thought that it was fair. Using interviews of 150 people compensated through the South African land restitution program, this article examines whether these findings apply in the transitional justice context where it is often unclear who the winners and losers are. The question explored is: When all outcomes are unfavorable or incomplete, how do people make fairness assessments? The central observation was that the ability of respondents and land restitution commission officials to sustain a conversation with each other had the greatest effect on whether respondents believed that the land restitution process was fair. The study also contributes to the existing literature by exploring the institutional arrangements and resources necessary to facilitate communication and to overcome any communication breakdowns encountered.     

Transitional Justice and the Quest for Democracy: A Contribution to a Political Theory of Democratic Transformations

The paper seeks to contribute to the transitional justice literature by overcoming the Democracy v. Justice debate. This debate is normatively implausible and prudentially self‐defeating. Normatively, transitional justice will be conceptualised as an imperative of democratic equal concern. Prudentially, it can prevent further violence and provide an opportunity for initiating processes of democratic emotional socialisation. The resentment and indignation animating transitions should be acknowledged as markers of a sense of justice. As such, they can help the reproduction of democracy. However, their public expression must be institutionally filtered through democratic norms. The consistent institutional instantiation of equal respect can educate and recuperate negative emotions for democracy.     

Deconstructing the Criminal Defence of Insanity

The significance of this article is in its deconstruction of the criminal insanity defence in a meta-legal critical context. The article’s objective is to critically review beliefs that the insanity defence was designed solely for public protection from insane violent people, or, for criminal deterrence. Arising from the long and continued use of the Roman Law concept of non compos mentis, the question arises as to what has become of the practical meaning of the term “insanity”, when used as a defence. The article tries to show that the defence of insanity is a public act of judicial denunciation against the accused, while the accused may have no effective responsibility for the crime. Argument begins with a critical discussion on the character of common-place denunciation as an appeal to public agreement. Then, it follows how the idea of “manifest criminality”, of the 1800s, might be cognate to modern ideas of “manifest madness”, linking into the origins of the English special verdict of insanity. This will allow a short critical analysis of the M’Naghten Case. Argument is completed with analysis of a psychologists’ expert construct of insanity and its relationship to jury perception. The article will suggest strongly that arguments based on the common law rules of insanity tend to expose juries more to denunciation of the accused, than to a reasoned account of the nature of his insanity and to the defects in his responsibility. Duly persuaded jurors would tend to acquiesce and participate in the denunciation of an accused person, whose unusual and unhealthy behaviours emanated from his sufferings by dint of his unbearable circumstances.