AFTER THINGS FALL APART: CHALLENGES FOR

TRANSITIONAL JUSTICE FUTURES*

FIONNUALA NÍ AOLÁIN

ABSTRACT

This article addresses the expansions, constrictions and pressures being faced by the

transitional justice field. I affirm the important hybridity and interdisciplinary

dimensions of transitional justice, but also underscore the extent to which the field

remains firmly rooted in and attached to legal practice. I fix my analysis on three

particular tensions in transitional justice. First, defining the sites of transitional justice,

worries about the breadth of the field and anxieties that transitional justice practice is

being over-expanded and thereby robbed of its core content and moral claims.

Second, growing awareness of fragmentation of the field of transitional justice –

illustrated by a plethora of ‘soft law’ norms emerging from a range of international

and regional actors, and the implications for accountability and legal traction. Finally,

ongoing calls for holistic approaches to address transitional societies and the

weaknesses of insufficient or incomplete transitional justice for conflict and

repression in emergent societies.

KEYWORDS

Transitional Justice, legal change, fragmentation, democratic transitions, post-

transitional justice, intervention, peacemaking.

Transitional justice discourse and practice is generally accepted as having its

foundations located in the theoretical, policy and practical implications of dealing

with past human rights violations in societies that have experienced either repressive

politics or violent conflict. Transitional justice describes the interim legal and political

arrangements that come to the fore as states (and emerging/new states) transition from

one legal status to another, or undertake profound internal rearrangement to facilitate

new political and constitutional imperatives. In particular, it refers to transitions from

situations of endemic human rights violations towards an environment characterised

by democracy and respect for rights. Transitional justice can acutely reorder existing

legal structures, influence permanent legal arrangements and act as a tool which spurs

political accommodation and compromise.

Transitional justice is a field of ever-expanding scope. It is defined by an unusual

interface of national and international political concerns, and by boundary disputes

between domestic and international law. Its ambit has moved considerably beyond

early preoccupations with primarily advancing criminal accountability for past human

rights violations by successor regimes or the processing of such harms through the

truth commission format. Transitional justice is increasingly defined by hybrid legal

orders (international human rights law, law of armed conflict, law of state

responsibility and international criminal law), as well as being uniquely delineated as

an interdisciplinary field.1

As I and others have previously asserted,2 transitional justice constitutes a field of

inquiry that both affirms but also problematises the role of law in situations of societal

change.3 As a legal scholar I continue to reflect and puzzle over the precise contours

of legal engagement in and power over transitional justice, while also engaging with

the limits of law in transitional contexts. There remains ongoing contestation about

the degree to which law limits and proscribes the terrain of transitional justice in ways

that are antithetical to a more fluid engagement with political changes through

institutional, cultural and social mechanisms and not solely through the narrow prism

of legal (read criminal) accountability.4 It is also not particularly helpful to enter a

debate that is essentially semantic, namely whether the term ‘transitional justice’

should be used primarily to envision a continuum which extends from a narrow (past-

focused) notion of ‘transitional justice’ to a broader consideration of the role of law in

transitions (itself a subset of the question of justice in transition). Even from this

perspective, it is clear that the legal frame of reference is only one dimension of a

broader attempt at social and political change.

Transitional justice (TJ) remains a contested field, despite some apparent settling on

key transitional justice debates (peace v. justice, amnesty v. accountability).5 In the

early period of TJ’s development,6 tense stand-offs characterised these debates, not

least because policy directions for states, international organisations and civil society

seemed to hang on their resolution. That seems less absolutely true in the

contemporary moment. By and large, the virtues of transitional justice mechanisms

and processes have been recognised, even if some marginal resistance to compromise

on strict criminal accountability is retained in amnesty and peace/justice debates

during transitional negotiations.7 Arguably, the sting has gone out of the dispute

because the seepage of impunity discourses into transitional justice practice has

reframed how and where the debates occur – now primarily internal to the field rather

than external and hyper-adversarial. In my view, the challenges to the field discussed

in this article are located in three overarching tensions. First, tensions remain rife in

defining the sites of transitional justice, the breadth of the field and anxieties that

transitional justice practice is being over-expanded and thereby robbed of its core

content and moral claim. These tensions and related concerns abound about hijacking

and commodification of the transitional justice field by governments, entrepreneurs

and the peace industry.8 Second, there is growing awareness of the fragmentation of

the field of transitional justice – illustrated by a plethora of ‘soft law’ norms emerging

from a range of international and regional actors. Finally, as the UN Special

Rapporteur has consistently noted since taking up his mandate, there is a need for

(and lack of) a comprehensive approach to addressing gross violations of human

rights and humanitarian law.9 Here, what is demanded is the totality of truth-seeking,

justice initiatives, reparations and guarantees of non-repetition in each setting where

transitional justice practice is invoked. What often comes instead is an ad hoc

selectivity for expedient transitional justice by states and international institutions –

with consequent division and polarisation of transitional justice claims. The lack of

commitment to holistic transitional justice operates to weaken moral claims and

victims’ rights, and undermines the likelihood of non-repetition as cycles of claim,

counter-claim and violence remain firmly entrenched.

1. TRANSITIONAL JUSTICE IS ABOUT TO BURST

Transitional justice has a number of variant birth stories. All of these explanations of

how the field developed are consistent in their growth trajectory of transitional justice,

whenever it is designated to have started. Elster grounds a narrative of transitional

justice in a centuries-old telling of cycles of violence, retribution and accounting – to

greater and lesser degrees growing in intensity over time.10 Teitel’s genealogy of

transitional justice starts in the post-world war period and is intimately bound up with

the compact made to seek accountability for the atrocities that had taken place during

and before the Second World War.11 In a highly contemporary telling, Paige asserts

that transitional justice started to emerge in the late 1980s as a consequence of the

practical challenges that human rights activists faced in a variety of Latin American

settings.12

The historical telling underscores the relationship between transitional justice and

criminal accountability. Increasingly, we also understand that history to be highly

ethnocentric. As Hazan reminds us, even as the historical events of accountability

(Nuremberg, Eichmann) signalled the birth of transitional justice through criminal

accountability, the West continued to brutally repress colonised peoples.13 Hazan has

underscored the ways in which transitional justice has been overtaken and essentially

colonised by the criminal law, to advance the interests of powerful Western states

who recognise that they can control the ‘other’ (but not self-limit) through

international institutional action. This analysis also speaks to the selectivity of

transitional justice not merely as accidental happenstance but rather as distinctly

political choice.

Transitional justice has an ever-growing range of preoccupations. Transitional justice

is fundamentally bound to justice issues, and not solely to the notion of 'justice-as-

accountability'. These broader concerns include questions of 'justice-as-fairness';

justice for victims of conflict (rather than a focus solely on perpetrators); the capacity

to access truth(s) in transition;14 the role such truths can play in societal transition;

institutional vehicles to truth(s) and justice; and principally the role of law and legal

process in facilitating such interactions. Other dimensions include the forms and

constructions of transitional legal justice; the effect of transitional legal structures on

the permanent institutions and legal regulations which follow; the gendered aspects of

transition; the challenges posed to key legal actors by transitional justice, including

the judiciary, the police, the army and the legal profession; the role of international

legal mediators in shaping transitional legal structures; and legal remedy and

reparation. Once one moves out of the law ‘box’, other substantive areas of

transitional justice practice have emerged and consolidated. These include memory

practices; commemoration practices; political arrangements, including power-sharing;

consociationalism and federalism; constitutionalism; security sector reform; the

decommissioning and control of weapons; and the politics and practice of intervention

to support or trigger transition.

In exploring the breadth of the transitional justice domain, a couple of examples

suffice to show the scale of the terrain it occupies. For example, the overlap between

constitutional orders and transitional justice is increasingly understood as changing

and framing both fields in independent, complementary and challenging ways.

Frequently, the means to resolve conflict or illiberal political orders is to make

fundamental compromises about the constitutional order of a state. These

compromises can drastically reorder the identity of the legal and political order,

recalibrate the relationship between various political organs and resituate federal/state

and national/regional relationships. Charting the relationship between

constitutionalism and transitional justice focuses on such issues as the contingency of

sovereignty, the reordering of executive powers and the changed capacity of state

authority as driven by transitional imperatives.

Expansion of transitional justice symbolism, authority and process is also illustrated

by charting the ever-closer relationship between transitional justice and intervention.

As societies experiencing stress have become the concern of other states and the

international community, there has been a marked increase in the number of situations

where regional and international institutions are prepared to give material, structural

and military support to resolving conflict and enabling transition. Understanding the

changing nature of military intervention, and the legal justification for this under

international law, shows a mixed picture in the past two decades but reveals the ways

in which transitional justice language, ethics and tools have been submerged in the

law and politics of multilateral and bilateral state intervention.15 Sustained analysis is

beyond the scope of this article but I concur with the assessment of overlap between

both classical and liberal interpretations of the law of peace with transitional justice.16

One can chart the steady erosion of conservative interpretations of Article 2(4) of the

United Nations Charter by material analysis of the Iraq, Haiti, Somalia, Bosnia and

Kosovo crises.17 Once again, the emphasis lies in the analysis of transition facilitated,

extended or hindered by the dynamics of intervention. In parallel, the role of

peacekeepers and their changing mandate is key to the observation of the expansionist

thrust of transitional justice. The point is underscored by United Nations reviews of

the role of peacekeeping in the new millennium,18 as well as the reflections of various

national peacekeeping entities following their participation in multi-national

peacekeeping forces.19 Troop-contributing countries such as the Netherlands have

been forced to reckon with the consequences of their actions and inactions in

peacekeeping situations, which have led to or have had causal connection with

systematic violations of human rights. For Dutchbat, the finding by a Dutch civil

court in 2014 that the Dutch military was responsible for the deaths of 300 Muslim

men who were deported from the Dutch compound by Bosnian Serb forces on 13 July

1995 underscores the painful legacy of their complicity in the commission of

egregious war crimes.20

Any assessment of the expansionist vein of transitional justice must be concerned

with the international institutions that are involved in and increasingly responsible for

situations of transition. The United Nations has become a central international

institutional actor in the transitional justice field. Its multiple roles range from

mediation in conflict endings and increasingly establishing the terms of the

transitional ‘deal’;21 standard-setting for various transitional justice mechanisms;22

institutional oversight through UN Treaty Bodies, which increasingly take transitional

justice measures into account in addressing state compliance with treaty obligations;23

and the position of the UN Special Rapporteur on the promotion of truth, justice,

reparation and guarantees of non-recurrence.24 Taking a looking-glass and examining

the legal responsibilities of and the political responses to the dynamics of transition by

this international organisation shows the stealth growth and increased institutional

infrastructure of transitional justice. Close attention to the bulky ‘soft law’ and ‘hard

law’ standards (General Assembly Resolutions, Declarations, and Security Council

Resolutions) that have been the primary tools of the organisation in responding to and

regulating transitional situations on the territory of Member States shows the scale of

normative engagement through rules with various degrees of legal traction, from

binding treaty norms to soft law guidance to states.25 The growth of transitional law

norms has given voice to the scale and specificity of human rights violations

experienced by victims and unambiguously revealed the legal and political obligations

of states to account for and remedy these harms. Yet, the proliferation of norms also

creates a fragmented universe of normative standards, most of which are non-binding.

In this burgeoning arena it is often easier for states to spend more time producing

legal norms than enforcing them. Hence, the expansion of transitional justice rules

and language should not be mistaken for better accountability or greater reparative

responsiveness to serious violations of human rights, despite the apparent production

efforts involved.

The growth of transitional justice practice by regional political, military and human

rights organisations should also be noted in mapping the institutional expansion of

transitional justice practice. These include the Organization for Security and Co-

operation in Europe (OSCE), the Council of Europe, the European Union, the

Organization of American States, the African Union and the Arab League.26 These

institutions continue to boast ever-bulkier portfolios on transitional justice. The

professionalism and broader use of transitional justice attests to its growth trajectory

and its political and legal relevance. At the same time, the increased professionalism

of transitional justice and the commodification by governments and institutions of TJ

language and practices have eclipsed the view of TJ as a ‘utopia’ which was primarily

victim-centred and constituted a bottom-up enterprise committed to the vindication of

the rights of those harmed by serious human rights violations.27

Another important and emerging sphere of transitional justice theory and practice is

democratic transition.28 With Colm Campbell, I have previously demonstrated how

‘paradigmatic transition’, focused on authoritarian and repressive regime transition,

under-appreciates other transitionary forms and is both over- and under-inclusive in

describing the variety of transitional types emergent in the contemporary political

landscape.29 Our analyses of paradigmatic transitions demonstrate that they display a

heavy emphasis on the specific quandaries involved in ‘dealing with the past’, as the

definitive issue driving legal and political responses to political change. Indeed, it was

the problem of engaging with the legacy of the massive rights violations of previous

regimes that led to the development of ‘transitional justice’ as an identifiable set of

discourses in the first instance.30 Thus, the assumption underpinning much of the

writing on law and legal institutions in the transitional context is that the regime is, to

a greater or lesser degree, illegitimate. From this springs the problems of the legal

status of the acts of the old regime,31 and the distinguishable but related problem of

the use of law in the new dispensation’s attempts to ‘police the past’.32 Yet as we have

demonstrated, authoritarian entities may not be the only kinds of state to leave in their

wake a legacy of serious and systematic rights violations. Increasingly, democratic

states experience political transitions and utilise transitional justice mechanisms. The

expansion of transitional justice is indelibly linked to the ways in which the

democratic state uses (and sometimes abuses) transitional justice. I note, in this

context, that the kinds of transition we mostly observe in democratic settings are

conflict-specific transitions (by definition, authoritarian and repressive transitions are

not relevant to democratic contexts). In democratic states, law, including legal norms,

institutions and actors, (a) shapes transitional justice, (b) moulds itself to the

requirements of powerful political forces during transition and (c) manifests particular

forms in democratic settings that are not apparent in authoritarian sites. As I have

observed in previous work, law both normatively and institutionally constitutes an

important conflict management tool in democratic transitions.33 In comparison with

authoritarian settings, legal process and institutions may play both a dampening

function to prevent scalar atrocities and/or ultimately enables self-correction to occur

because courts in particular remain an independent site of challenge and contestation

for the democratic states.34 Moreover, to understand the pressure points that the

adoption of transitional justice symbolism, process and mechanisms place on

democratic states it is necessary to engage with the relationship between the state’s

ideological commitment to the ‘rule of law’ (or ‘rechtsstaat’), democracy and

political transition.35

In addition to the generic adoption of transitional justice mechanisms by democracies,

the places and spaces in which transitional justice is being deployed within the states

(at the micro level) is ever-expanding. Intra-democratic transition (endogenous

transition) refers to transitions that occur in a region of a democratic state in which

there are severe democratic and rule of law deficits, and which may be violently

conflicted. Northern Ireland is the classic example of this phenomenon, as a

geographically distinct part of a democratic state experiencing conflict, differential

and gerrymandered democracy, severe rule-of-law flaws and rife economic inequality,

which co-existed within a formal British democracy. The fact that the state had an

overall ideological commitment to democracy and to the rule of law meant that levels

of rights violations, while serious, were not catastrophic (genocide and crimes against

humanity did not occur). The critical issue in Northern Ireland and elsewhere is that

the violations occurred during a period when the state was formally a democratic

rechtsstaat (France in Algeria provides another valuable illustration). As Campbell

and I have explored, in general such states come under little international legal or

political pressure to seek accountability mechanisms outside the domestic realm.36

Democracies are particularly interesting to observe as case studies of how (or how

not) to address systematic and sustained human rights abuses. Long-established

democracies have in theory the capacity to address systematic human rights violations

(procedural and substantive democracy, a rule-of-law system, including functional

and open courts, and signatories to international human rights treaties). This begs the

obvious question of why established democracies, including Canada, Australia and

United Kingdom, resort to the use of transitional justice measures (as opposed to the

substantive criminal law) to address historical human rights violations or long-

standing grievances within the state.37 Here, one needs to pinpoint the reasons for the

expansion of the transitional justice oeuvre to sites that, in theory have other, stronger

and more robust mechanisms to address accountability and reparations. In Canada, the

use of truth recovery processes to address the historical treatment of native groups

was seen by many as avoidance of direct individual and institutional responsibility,

and ultimately a weak means to enforce legal redress for serious violations of human

rights that continue to cause individual and intergenerational trauma. In Australia,

parallels are to be seen in the official designation of “sorry day” and the National

Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from

their Families, resulting in the publication in 1997 of its report Bringing them Home.38

On one analysis, this resort to transitional justice mechanisms is a positive

development. While other mechanisms of accountability theoretically exist in such

democracies, including historical treaties with First Nation communities, their use has

been limited and often foreclosed by the existence of parallel ‘informal’ processes of

truth telling and restorative justice. Thus, for established democracies transitional

justice mechanisms have become an innovative site of legal and political action, but

the extent to which these mechanisms deliver the totality of holistic (transitional)

justice for affected communities and individuals remains highly contested.

One can be sanguine and maybe cynical about transitional justice mechanisms in

these contexts. The established democracy sees them as a ‘soft’ option on formal

criminal accountability and full reparations liability.39 In practice, as the Canadian and

Australian cases illustrate, criminal accountability is rarely sought for systematic and

state-supported human right violations, particularly historical violations. Moreover, a

containment exercise by the state on the exercise of formal legal accountability is

facilitated by what may be perceived as ‘soft’ legal measures. As the Canadian and

Australian examples illustrate, established democracies are using transitional justice

measures to address colonial pasts and there are reasons to expect this pattern to

continue, not least the cost/benefit analysis of contained transitional justice for

historically contentious histories.

This is another important pathway for a transitional justice that speaks less to the

expansion of transitional justice to deliver a wholesale reckoning on the historical

legacies of colonial exploitation, but rather as a retail exercise containing the most

pressing contemporary claims from colonial legacies. Here, the undulating pressure

for legal accountability places ongoing pressure on democratic states to provide

redress for past violations and their ongoing effects on specific (generally minority

and/or indigenous) communities. The inability or incapacity to utilise traditional

criminal or civil mechanisms to address systemic historical wrongs has led to the

deployment of classical transitional justice mechanisms (apology, memorialisation,

truth recovery and reparations) to contain the legal accountability gap. Here we see

both expansion (sites) and contraction (substance) of transitional justice in one

synergetic swoop.

These examples of expansion are further illustrated by the emergence of post-

transitional justice (endogenous transition). Post-transitional justice means a

deliberate formal and legal re-engagement with the past in a context where there has

already been at least one transitional justice cycle in a given state.40 Contemporary

examples include Chile, Guatemala, and El Salvador. In endogenous sites, the post-

transitional phase can be preceded either by an exogenous primary transition (as in the

Federal Republic of Germany) or by an endogenous transition (as in Chile). In both

cases, the critical issue is that human rights violations took place during the

authoritarian phase, with the result that they are likely to be more serious and

systematic than in the case of intra-democratic transition. There is also an important

legal difference: as noted above, intra-democratic transitional justice is likely to rely

solely upon domestic law norms, but in post-transitional justice, the question of

whether violations should be framed as breaches of international criminal (‘crime

against humanity’) or humanitarian law or as breaches of domestic law (e.g. ‘murder’)

provides a contest. The contest is played out in academic and policy discourses within

the framework of transitional justice debates but is also evident in domestic political

debates. For instance domestic courts in post-war Germany were initially willing to

try those accused of crimes against humanity and war crimes, but use of the ‘crime

against humanity’ charge was later dropped.41 Furthermore, the manner in which

international law crimes were domesticated in the German courts tended to blunt their

effects, at least when dealing with the question of whom should be considered a

principal and whom an accomplice.42 Some similar issues have arisen in post-

transition Chile. These distinctions (intra-democratic: domestic law v. post-

transitional: international legal imperatives) are critical for legal analyses and give

some insight into the scalar expansion of transitional justice theory and practice.

2. TRANSITIONAL JUSTICE CONSOLIDATION HAS LED TO

FRAGMENTATION

The progress of transitional justice is strikingly defined by ambivalences of various

hues. The ambivalence paradoxically linked to the ways in which the establishment of

transitional justice as an uncontroversial part of international, regional and state

responses to atrocity crime simultaneously affirms its value yet may undermine its

radical premise of victim-centred justice. Current ‘steady state’ transitional justice

(evident, for example, in the creation of the International Criminal Court) may operate

to universalise the normalisation of transitional justice.43 The concept of transition

may therefore be open to appropriation in an attempt to rework mainstream

understandings of international legal norms. What was viewed as a legal phenomenon

associated with extraordinary post-conflict conditions now increasingly appears to be

a reflection of ordinary times. This poses extraordinary challenges to the integrity of

the field and well as to defining the contours of what constitutes transition and what

does not.

The perceived or actual fragmentation of international law continues to preoccupy

international scholars and practitioners. From treaty interpretation to judicial branch

supremacy and onwards to governance theory, the form and effect of splintering

international legal norms infuses debate and passion.44 Despite much attention to

fragmentation generally, little sustained attention has been paid to the implications of

fragmentation for transitional justice. The expansion of transitional justice is found in

international institutions, regional organisation, national regulatory regimes, treaties,

custom and a plethora of soft law norms. The overwhelming bulk of transitional

justice rules are disparate, non-binding legal norms which may not necessarily yield

transformative results. For example, in the area of reparations alone there are multiple

soft law yields, including Basic Principles and Guidelines on a Right to a Remedy

and Reparation for Victims of Gross Violations of International Human Rights Law

and Serious Violations of International Humanitarian Law (The Basic Principles)

adopted in 2006 by the UN General Assembly;45 the Nairobi Declaration on Women’s

and Girls’ Right to a Remedy and Reparation;46and Principles and Guidelines on

Children Associated with Armed Forces or Armed Groups (the Paris Principles).47

The proliferation of soft law standards had yielded sizeable symbolic capital for

transitional justice activists but the extent to which such norms make any sizeable

difference in practice has yet to be measured in an empirically robust way.

Drawing on Benvenisti and Downes’s analysis, I remain aware that fragmentation

‘operates to sabotage the evolution of a more democratic and egalitarian inter-national

regulatory system.’48 A fragmented system is more difficult to reform. As feminist

scholars have underscored, the complexity of multiple overlapping legal and policy

regimes in conflict and post-conflict societies has made advocacy for as well as

representation and inclusion of women arduous.49 In some respects the more rules that

are added to the mix, the harder the overall task of enabling coherence. The

application to transitional justice practice should be obvious. The norm expansion

creates multiple moving targets and the traction of these norms, declarations,

guidance notes and studies is highly diffuse or at best under-appreciated.

Fragmentation is understood to be in the interests of powerful states and elite actors

because it enables them to maintain their domination of international and domestic

systems or to move their claims to other fora when they are unable to get the results

they desire in a particular legal arena. Soft-law international norms and their domestic

progeny may simply generate another dimension to facilitate ‘forum shopping’ for

states in respect of their legal obligations. If this claim is true for international law in

general, it is equally applicable to transitional justice. While the links between the

lack of holistic transitional justice and the proliferation of legal norms remain

uncharted, we might surmise that discrete and ill-defined legal boundaries and legal

norms with limited formal traction generally do not work in the best interests of the

powerless, the dispossessed and the oppressed.

What is also clear is that the ambiguous boundaries and the overlapping authorities

created by fragmentation dramatically increase the transaction costs that international

legal bodies (and activists) must incur when they engage with or seek to rationalise

the legal order that emerges. The splintered character of the international movements

that participate in transnational transitional justice (such as they are, e.g. victims’

rights groups, the international women’s movement as concerned with women’s rights

and harms in transition) – as evidenced by diverse interests, by North–South divides,

and by the inevitability that intersectional interests will produce variable points of

political interface – is further fractured in its political efforts by ever shifting forum

creation and expansion. While much remains uncertain as to the enforcement of many

transitional justice norms, multiple mandates and multiple agency roles are a clear

motif.50

Benvenisti and Downs also note that powerful states pursue a number of

‘fragmentation strategies’.51 These include:

(1) avoiding broad, integrative agreements in favor of a large number of

narrow agreements that are functionally defined; (2) formulating agreements

in the context of one-time or infrequently convened multilateral negotiations;

(3) avoiding whenever possible the creation of a bureaucracy or judiciary with

significant, independent policymaking authority and circumscribing such

authority when its creation is unavoidable; and (4) creating or shifting to an

alternative venue when the original one becomes too responsive to the

interests of weaker states and their agents.52

Taking a forensic look at the transitional justice field through these starkly articulated

state prisms gives a sharp focus to the euphoria that continues to accompany soft-law

augmentation, transitional justice interventions and venue shifting on transitional

justice claims.

The proliferation of rules and institutions represents for some a concrete reality, and

an unavoidable dimension of an ever-expanding international system, which has

seeped into transitional justice institutional infrastructure. Increasing the transitional

justice body of norms, as well as the institutions that interpret them, is viewed as

advancing competition with legitimacy and diversity benefits. Exalting the virtues of

‘the more the merrier’, there is a sense in which new transitional justice mechanisms

can be seen as a positive assertion of the responsiveness of the legal imagination to

social change. Koskenniemi and Leino have posited that while universalism may be

desirable, its advancement also ‘echo[es] imperial concerns, and never more so than

when they are spoken from high positions in institutions that administer flexible

standards that leave the final decision always to those speakers themselves’.53 This

imperial tendency is one that feminists instinctively recognise, and understand its

patriarchal pitfalls. It is a pitfall yet to be fully grasped by transitional justice scholars,

practitioners and activists.

In sum, there has been, on one view, an extraordinary amount of political and legal

energy devoted to justice for atrocity in the pre-eminent international institutional

settings. This flurry of ‘soft’ and ‘hard’ law at the international level can be

interpreted in multiple ways. Overall, it is a promising advance, signalling the

increased importance that key international organisations and states have given to

realities experienced by victims and those who have experienced atrocity crimes. Yet,

the continued emphasis on ‘naming and shaming’ over enforcement and delivery

ought to give us pause. The ways in which ongoing norm augmentation is outpacing

norm implementation, particularly for those who have suffered the most, might

prompt the reflection that ‘less could be more’. Delivery on the core motifs of

transitional justice (including reparation and guarantees of non-repetition) remain

elusive. Fragmentation continues, in my view, to be part of the problem.

3. THE ELUSIVE SEARCH FOR HOLISTIC TRANSITION

A consistent thread through contemporary ruminations on the state of the field is that

transitional justice mechanisms, from truth recovery to reparations, must be multi-

faceted to be effective. The emphasis on engaging the package of transitional justice

measures in totality follows from a theoretical and practical understanding of truth,

justice, reparations and guarantees of non-recurrence as innately connected. The

holistic approach is antithetical to segmentation of particular measures or limiting

access to some measures to narrowly defined categories of victims. For many scholars

and practitioners, there is identifiable frustration with piecemeal or ‘pick and choose’

transition, whereby states and international institutions hold that different parts of the

transitional justice ‘package’ can be traded off against one another.54 For example,

Pablo de Greiff makes strong claims for relationships between the constituent

elements of transitional justice, yielding in his terminology a ‘holistic’ vision. De

Greiff does so because he argues that normative theoretical work can guide action and

operate to make practical choices clearer or give their problematic elements greater

exposure. Essential to his task is the identification of ‘two mediate goals, namely

recognition and civic trust and two final goals reconciliation and democracy’.55 His

claim to the value of understanding a variety of transitional justice mechanisms (truth

telling, accountability, reparations and memory) as interconnected resonates with the

challenges that other observers make as to the political restrictions that follow from a

singular approach to transitional work. These restrictions bring us back to the question

of whom transitional justice serves and how tolerant, understanding and resilient

societies will be built from the ashes of shame, humiliation, hurt and harm. In sum,

selectivity in the application of TJ measures has concrete consequences for victims,

institutions and societal recovery. In some sense it is the totality of measures that

offers the best route for TJ’s best potential contribution to the health of democracy.56

For example, in the context of reparations, this would mean reparations would follow

and relate to both justice and truth-seeking measures. Reparations would constitute

redress but also engage to enable guarantees of non-repetition. Holistic transitional

justice has both vertical and horizontal dimensions. Thus, a holistic reparations menu

should include interim reparations to victims in urgent need, individual reparation

grants, symbolic reparations, communal reparations, cultural reparations,

psychosocial reparations and rehabilitation and institutional reform to prevent

recurrence of the violations.

Moreover, gendering reparations would mandate understanding that for many women

a return to the status quo ante in transitional societies would compound rather than

ameliorate harms.57 A clear example of this kind of gendered analysis could be

applied to ensuring that reparations provisions extend beyond the domestic laws of

succession or inheritance in societies where women are formally barred from land

ownership or property title. This kind of gendered thinking in transition does not

assume that the status quo ante was, in fact, positive for women. Moreover, for many

societies in transition it should not be assumed that the Western nuclear family model

is the appropriate basis for compensatory claims. A useful marker is that in many

states where onerous tests to demonstrate identity and status are placed on potential

reparations beneficiaries, women most frequently fail the requirements because they

may not have the relevant identity or legal documents (Rwanda and Guatemala

cogently illustrate the practical problems). Ultimately, to make substantial and

sustainable gains for women in the transitional stage requires monitoring, valuing and

advancing the major social roles undertaken by women and legally protecting them

across all the relevant core of transitional justice norms.

CONCLUSION

While acknowledging the intrinsic value of transitional justice for confronting mass

atrocity, this article dampens much of the contemporary enthusiasm in the field with a

broad review of contemporary macro challenges. By addressing the ever-expanding

scope of the field I ponder whether the currency of transitional justice (and the

intensity of its moral and ethical claims) will be watered down by its deployment to

situations whose claims to its oeuvre are weak. While recognising the allure of open-

ended transformative approaches to addressing the needs of victims who have

experienced murder, torture, disappearances and violation, I am nonetheless

increasingly aware of the incommensurability of harm and the downstream

consequences of a failure to deliver on promises of justice to the recovery of

individuals and society from collective trauma.

I also pay close attention to the fragmented legal and policy landscape that continues

to define the development of transitional justice. Despite the high moral currency of

transitional justice concepts (reconciliation and accountability) the development of the

field has been ad hoc and patchy. In general, advocates of transitional justice have

paid less attention to the traction and status of the norms being developed than they

have to the proliferation of standards. While there are some outliers, most notably the

agreement on an International Criminal Court of general jurisdiction, the normative

basis for transitional justice remains weak and quite dispersed. Even on the criminal

justice front, we should understand that the language of international criminal law

adjudication must be translated to understand its historical reckoning and place.58 As

Wilson has noted when meticulously recording the history of the ad hoc Tribunals

(particularly to lawyers who might be over-zealous about the reach of accountability),

one should not mistake accountability for the triumph of a historical narrative of

accountability. In fact, we may get precisely the opposite. As the trials of Klaus

Barbie and Eichmann demonstrate, the moment of accounting is as importantly a

moment to reclaim and shape a national discourse (in one a story of victimhood and

forced engagement by the Vichy regime and in the other the harnessing of a criminal

trial to the Israeli nation-building project), and that discourse may not ultimately serve

the ends of non-recurrence and responsibility.59 The ‘too much’ transitional justice

challenge is an indictment not only of the challenge that the practices that have been

absorbed by the field are taxing the capacity to deliver justice and recognition for

victims and spreading resources, expertise and the small quota of state compliance

thin, but may also undermine core responsiveness to mass atrocity.

Fragmentation remains a sizeable if under-recognised challenge for transitional justice

theory and practice. There is a real dilemma in calling out fragmentation not least

because advocates, practitioners and scholars remain deeply aware of the normative

limitations of the field. There is an instinct, given the lack of ‘hard’ law norms, to

press predominantly for augmentation of the rules and give formal institutional

recognition to practices that remain on the margins. However, as expressed in the

analysis above, mobilisation to enhance the institutional and legal frameworks of

transitional justice can also hollow out core capacity, spread the challenge to impunity

thin and provoke resistance from states and international institutions alike. Thinly

spread capacity can also function to divide and destabilise the compacts that are made

with evils in the past. Here I advocate a certain pragmatism, a call to ‘walk before

running’ and to be more cognisant of the ways in which justice measures work in

practice (a robust engagement with evaluation of success from a victims’ perspective)

before adding to the menu of options.

Even as victims, advocates and scholars advocate for holistic transitional justice, we

are continually reminded that transitional justice mechanisms operate ‘in a very

imperfect world’.60 The tools generally available to address atrocity function in

destabilised, fragile, war-weary and resource-strapped communities. These are also

emotionally impoverished communities where trauma, denial, moral apathy, righteous

anger and moral claims abound. It is precisely because of the complexity and depth of

the psychological, physical and material terrain that the claim for holistic transitional

justice becomes most powerful. The dexterity of differing mechanisms (justice, truth,

reparation and non-repetition) offers an authoritative repertoire of claim, process and

capacity to give the best chance for meeting the needs of societies emerging from

violence and trauma. This is not to say that holistic transitional justice guarantees

outcomes, rather it merely provides the best chance of meeting the needs of most

victims most of the time. Paraphrasing Solomon, holistic transitional justice has the

best chance of being most coherent, most consistent, most articulate, most

perspicacious, most reasonable, and of subjecting those who have caused unspeakable

harm to most scrutiny.61

* Professor of Law, Transitional Justice Institute, Ulster University & Robina Chair in Law, Public Policy and Society, University of Minnesota Law School. My thanks to Megan Manion for research assistance. CONTACT Fionnuala Ni Aolain at niaol002@umn.edu 1 C. Bell, Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘Non-Field’, 3(1) International Journal of Transitional Justice 5–27 (2009).2 C. Bell, C. Campbell, and F. Ní Aoláin, Forward Transitional Justice: (Re)Conceptualizing the Field, 3(2) International Journal of Law in Context 81–88 (2007).3 C. Bell, C. Campbell and F. Ní Aoláin, Justice Discourses in Transition, 13(3) Journal of Social & Legal Studies 305–328 (2004).4 K. Engle, Anti-Impunity and the Turn to Criminal Law in Human Rights, 100(5) Cornell Law Review 1070–1128 (2015).5 L. Mallinder, Amnesties in the Pursuit of Reconciliation, Peacebuilding and Restorative Justice, in: D. Philpott and J. Llewellyn (eds), Restorative Justice, Reconciliation, and Peacebuilding 138–173 (Oxford: Oxford University Press, 2011).6 R. Teitel, Transitional Justice Genealogy, 16(1) Harvard Human Rights Journal 69–94 (2003). 7 Regarding the peace deal with the FARC in Colombia, ICTJ released a briefing stating: ‘[a]mnesties and pardons are valid instruments under international law, and, therefore, are appropriate and acceptable remedies for the legal resolution of criminal conduct in the context of armed conflict. . . . provided that it is applied with transparency and clarity in terms of its material scope, criteria, and minimum guarantees, with firm respect for the limits established by international law.’ F. Travesí and H. Rivera, ICTJ Briefing: Political Crime, Amnesties, and Pardons: Scope and Challenges, (May 2016) https://www.ictj.org/sites/default/files/ICTJ_Colombia_2016_Political_Crime.pdf; Human Rights Watch criticised the peace agreement, stating that ‘[u]nder the peace accord, guerilla fighters responsible for . . . abuses – including war crimes and crimes against humanity – can avoid spending a single day in prison. . . . Our experience in Colombia teaches us that the cycle of violence and abuse on all sides is perpetuated by the certainty of those responsible that they will never be punished for their crimes.’ J.M. Vivanco, Colombia Peace Deal’s Promise, and Flaws, (Sept. 27, 2016) https://www.hrw.org/news/2016/09/27/colombia-peace-deals-promise-and-flaws. 8 S. Autesserre, Peaceland: Conflict Resolution and the Everyday Politics of International Intervention (New York: Cambridge University Press, 2014).9 UNGA, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Pablo de Greiff (A/HRC/21/46) (2013).10 J. Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004).11 Teitel, supra note 6, pp. 69-94.12 P. Arthur, How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice, 31(2) Human Rights Quarterly 321–367 (2009).13 P. Hazan, Judging War, Judging History: Behind Truth and Reconciliation 27 (Stanford, CA: Stanford University Press, 2010).14 P. Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (New York: Routledge, 2010); J.E. Mendez, Accountability for Past Abuses, 19(2) Human Rights Quarterly 255–282 (1997). 15 UNGA, Implementing the Responsibility to Protect, Report of the Secretary-General (A/63/677) (2009), paras 11-71. 16 C. Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford: Oxford University Press, 2008).17 C. Chinkin, Kosovo: A “Good” or “Bad” War?, 93(4) American Journal of International Law 841–847 (1999); UNSC, Report on Iraq-Kuwait (S/RES/680) (1990); UNSC Report on Iraq-Kuwait (S/RES/687) (1991); UNSC, Report on the Situation between Iraq and Kuwait (S/RES/1441) (2002); UNSC, Report on the Situation between Iraq and Kuwait (S/RES/1483) (2003).18 B. Boutros-Ghali, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping, 11(3) International Relations 201–218 (1992).19 R.G Pateman, Disarming Somalia: The Contrasting Fortunes of United States and Australian Peacekeepers during United Nations Intervention, 1992-1993, 96(385) African Affairs 509-533 (1997)20 https://www.theguardian.com/world/2014/jul/16/dutch-liable-srebrenica-massacre-deaths21 http://peacemaker.un.org/mediation-support22 This includes standards setting through rule of law toolkits on amnesty, reparations, truth commissions, vetting and lustration. See e.g. http://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf23 See e.g. UN CEDAW Committee, General Recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations (CEDAW/C/GC/30) (2013)24 The position was created by the adoption of resolution 18/7 by the Human Rights Council on 29 September 2011.25 UNGA, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (A/RES/60/147) (2006);

UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (S/2004/616) (2004); OHCHR, Rule-of-Law Tools for Post-Conflict States: Amnesties (2009); Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Prosecution Initiatives (HR/PUB/06/4) (2006); Office of the United Nations Commissioner for Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity (E/CN.4/2005/102/Add.1) (2005).26 The European Union has committed to developing policy on transitional justice to ‘provide a framework for EU support to transitional justice mechanisms and processes and enhance the EU’s ability to play a more active and consistent role . . . [to] engage in situations where past violations and abuses, including gross violations and abuses of human rights and serious violations of international humanitarian law have occurred, through supporting a context-specific combination of measures promoting truth, justice, reparations and guarantees of non-recurrence . . . [and to] build upon and complement the EU’s existing strong policy in support of the International Criminal Court’. The EU’s Policy Framework on Support to Transitional Justice, http://eeas.europa.eu/archives/docs/top_stories/pdf/the_eus_policy_framework_on_support_to_transitional_justice.pdf. ‘Both the Inter-American Commission on Human Rights . . . and the Inter-American Court of Human Rights . . . have emphasized the intrinsic relationship between democracy, and the observance of and respect for human rights.’ IACHR, The Right to Truth in the Americas (OEA/Ser.L/V/II.152) (2014). In 2016, the AU organised three meetings envisaging the adoption of a continental policy framework on transitional justice. OAU, Implementation of the AU Transitional Justice Policy Framework as part of the Action Plan of the Human Rights Strategy for Africa, http://www.au.int/en/newsevents/19492/consultative-meeting-implementation-au-transitional-justice-policy-framework-part. ‘A huge political debate has been going on in a number of Arab countries where revolutions took place on how transitional justice should be achieved.’ Hesham Youssef, The Arab League and the Rule of Law, in: R. Cordenilla and K. Sample (eds), Rule of Law and Constitution Building: The Role of Regional Organizations 47 (Strömsborg: International Institute for Democracy and Electoral Assistance, 2015).27 Hazan, supra note 13, p. 30.28 C. Campbell and F. Ní Aoláin, The Paradox of Transition in Conflicted Democracies, 27(1) Human Rights Quarterly 172–213 (2005).29 Campbell and F. Ní Aoláin id.30 A classic example is the question posed by Michael Feher: ‘How should nascent democracies address the human rights violations that plagued their societies’ recent past?’ M. Faher, Terms of Reconciliation, in: C. Hesse and R. Post (eds), Human Rights in Political Transitions: Gettysburg to Bosnia 325 (New York: Zone Books, 1999).31 See the discussion of the debate on this point between Lon Fuller and H.L.A Hart, in: R. Teitel, Transitional Justice 12–14 (Oxford: Oxford University Press, 2000). 32 S. Cohen, State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past, 20(1) Law & Social Inquiry 7–50 (1995).33 F. Ní Aoláin, The Politics of Force: Conflict Management and State Violence in Northern Ireland (Belfast: Blackstaff Press, 2000).34 In contrast to authoritarian regimes, where although legal forms and action may be present there is a more muted role and ultimately reactionary responses from courts and lawyers and legal advocacy can be shut down and entirely repressed.35 Campbell and Ní Aoláin, supra note 28, pp. 172–213. 36 Id.37 S. Winter, Transitional Justice in Established Democracies: A Political Theory (New York: Palgrave Macmillan, 2014)38 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing them Home, (1997) https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf.39 Here, reparations would include restitution, compensation, satisfaction, rehabilitation and guarantees of non-repetition. 40 C. Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador (University Park, PA: Penn State University Press, 2010)41 D.O. Pendas, Retroactive Law and Proactive Justice: Debating Crimes against Humanity in Germany, 43 Central European History 428-463 (2010)42 Pendas id.43 ICC Office of the Prosecutor, Informal Expert Paper: The Principle of Complementarity in Practice (2003); F. Ní Aoláin, N. Cahn, and D. Haynes, On the Frontlines: Gender, War, and the Post-Conflict Process 152–174 (New York: Oxford University Press, 2011); UNSC, Statute of the International Criminal Tribunal for the former Yugoslavia (S/RES/827) (1993); UNSC, Statute of the International Tribunal for Rwanda (S/RES/955) (1994).

44 UNGA, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (A/CN.4/L.682) (2006); G. Hafner, Pros and Cons Ensuing from Fragmentation of International Law, 25(4) Michigan Journal of International Law 849–863 (2004); J.H.H. Weiler, The Interpretation of Treaties – A Re-examination Preface, 21(3) European Journal of International Law 507–509 (2010); M. Koskenniemi and P. Leino, Fragmentation of International Law? Postmodern Anxieties, 15(3) Leiden Journal of International Law 553–579 (2002); E. Benvenisti and G.W. Downs, The Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60(2) Stanford Law Review 595–631 (2007).45 Id.46 International Meeting on Women’s and Girls’ Right to a Remedy and Reparations, Nairobi Principles on Women’s and Girls’ Right to a Remedy and Reparations (2007)47 The Paris Principles are derived from the Cape Town Principles and Best Practices, adopted at the Symposium on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Reintegration of Child Soldiers (1997). 48 Benvenisti and Downs, supra note 44, pp. 595–631.49 F. Ní Aoláin, N. Cahn, and D. Haynes, supra note 30; F. Ní Aoláin, International Law, Gender Regimes and Fragmentation: 1325 and Beyond, in: C.M. Bailliet (ed.), Non-State Actors, Soft Law and Protective Regimes: From the Margins 53–68 (Cambridge: Cambridge University Press, 2012). 50 Victims Standards; UNGA, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Pablo de Greiff (A/HRC/30/42) (2015); Report, UNSC, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General (S/2004/616) (2004).51 Koskenniemi and Leino, supra note 44, p. 600. 52 Koskenniemi and Leino, supra note 44, p. 600.53 Koskenniemi and Leino, supra note 44, pp. 553–579; M. Koskenniemi, Legal Universalism: Between Morality and Power in a World of States, in: S. Cheng (ed.), Law, Justice, and Power: Between Reason and Will 46–69 (Stanford, CA: Stanford University Press, 2004).54 P. de Greiff, Theorizing Transitional Justice, in: M. Williams, R. Nagy and J. Elster (eds), Transitional Justice: NOMOS LI 31–77 (New York: New York University Press, 2012). 55 Id. at pp. 33–34.56 Mihaela Mihai, Negative Emotions and Transitional Justice 16 (New York: Columbia University Press, 2016).57 F. Ní Aoláin, C. O’Rourke and A. Swaine, Transforming Reparations for Conflict-Related Sexual Violence: Principles and Practice, 28 Harvard Human Rights Journal 97–146 (2015).58 R.A. Wilson, Writing History in International Criminal Trials (New York: Cambridge University Press, 2011).59 L. Fletcher, A Wolf in Sheep’s Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes, 39(3) Fordham International Law Journal 447–531 (2016).60 P. de Greiff, supra note 54, p. 35.61 R.C. Solomon, Justice v. Vengeance: On Law and the Satisfaction of Emotion, in: S. Bandes (ed.), The Passions of Law 123–148 (New York: New York University Press, 1999).