Friday, November 19, 2010

Designing Bespoke Transitional Justice

The field of transitional justice is in need of a unified theory that addresses flaws in contemporary approaches to accountability for mass violence. My most recent article, Designing Bespoke Transitional Justice: A Pluralist Process Approach (published in the Michigan Journal of International Law) presents a novel theory of effective transitional justice processes as those that successfully reconstruct social norms concerning mass violence.
Because norm generation is an inherently communal and contingent social process, transitional justice ought to be primarily locally-controlled and always precisely tailored to particular events and societies. In a word, it must be bespoke. This approach seeks to replace a universalist vision of transitional justice -- imposition of a uniform set of substantive values -- with a pluralist approach to transitional justice -- reconciliation of competing value frames through an inclusive process. This theory should be used to inform the design of effective transitional justice mechanisms ex ante, rather than to assess the impact of extant institutions ex post.
The current reliance on international criminal law as the favored normative framework for transitional justice results in several theoretical and structural problems (detailed further in the paper). Drawing on several academic disciplines, the article suggests that, in order to successfully reconstruct social norms, the local population must perceive transitional justice mechanisms as legitimate and the values they propound as worthy of internalization. Transitional justice mechanisms carefully tailored to the society they serve will be perceived as significantly more legitimate than institutions drawn from a "universal" mold.
The article provides the first comprehensive attempt to catalogue the perceptions and attitudes of local populations toward contemporary transitional justice mechanisms. Empirical surveys and cultural studies demonstrate legitimacy gaps that have largely been caused by failures of international criminal courts to incorporate local perspectives and preferences. Other mechanisms have been more successful in garnering legitimacy, but these locally grounded accountability efforts have limitations of their own. The central lesson from these case studies is that the existing catalogue of transitional justice institutions should be viewed as a spectrum rather than a hierarchy of options.
The article then offers concrete suggestions for crafting effective transitional justice mechanisms. It presents design principles that aim to buttress the legitimacy of the source, procedure, and substance of these institutions, as well as evidence-based and locally grounded mechanisms to implement these principles.
The article concludes by situating its proposals in current international law and dispute resolution literature. Global legal pluralism scholarship assumes that competing visions of substantive justice will exist within the society afflicted by mass violence and aims to incorporate, or at least respond to, a variety of perspectives. Dispute resolution literature advocates for a flexible, inclusive process of dispute resolution design rather than a rigid adversarial legalist approach. Drawing from both of these literatures, an inclusive and carefully structured design process achieved through prescriptive empiricism offers tantalizing potential to create more effective mechanisms of transitional justice.

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