Judging State-sponsored Violence, Imagining Political Change, New York: Cambridge University Press, 2011
Reviewed by Jasmina Kijevcanin, Swinburne University of Technology
This book examines the theory and practice of transitional justice in the aftermath of state-sponsored violence. After exploring concepts which have shaped our understanding of transitional justice, Bronwyn Leebaw argues that these concepts need to be reframed. Leebaw focuses on two alternative concepts: that of human rights legalism and that of restorative justice. Her paradigmatic cases are the International Military Tribunal at Nuremberg and South Africa’s Truth and Reconciliation Commission, respectively.
While human rights legalism promotes justice as an outcome, trials as a means and international law as a framework, the concept of restorative justice stresses the importance of humanitarian ethics, local values and what is called ubundu (forgiveness) in South Africa.
While the former results in the punishment of perpetrators, the latter is meant to have a therapeutic effect for the victims, resulting in “psychological healing, physical healing and redemptive healing” (71).
Recognising the historical importance of both approaches, Leebaw highlights the need to move the focus from concepts of individual victimhood and guilt towards a model that would open a space for the analysis of collective guilt and complicity. Inspired by the writings of Hannah Arendt, Judith Shklar and Desmond Tutu, among others, Leebaw argues against the possibility of depoliticising atrocities of the past.
She illuminates the gray zone of transitional justice by emphasising the importance of the political judgment of past atrocities. She also underlines the lack of analyses of resistance to the past atrocities and highlights the importance of remembering resistance. Here she is concerned not only with the resistance of an opposition or of those who are part of the ruling elite but also with the failure to resist. All those need to be analysed: Instead of establishing their contributions to justice and reconciliation by narrowing the scope of their investigations, then, truth commissions might further these goals by expending their investigations to encompass the themes of complicity and resistance (185).
Among many questions that this book has raised, I was particularly interested in the way the author explores the controversial nature of the Nuremberg Trials. Acknowledging different critics including those who saw Nuremberg as a betrayal of legalism, Leebaw writes: “The Nuremberg Trials punished Nazi officials for atrocities that had been legal at the time of their commission (35).
Leebaw explains that contemporary human rights legalism is part of a social continuum rather than a discrete entity. Throughout the book, she argues against the idea of universal principles of justice. By quoting Shklar, Leebaw underlines the importance of local contexts and of a communal (enlarged) mentality. “The idea that all international problems will dissolve with the establishment of an international court” wrote Shklar “is an invitation to political indolence. It allows one to make no alterations in domestic political action and thought (…) to try no new approaches and yet appear to be working for peace” (38).
According to her, the Nuremberg trials wouldn’t have been nearly as successful if Germany had not had a strong legalistic tradition. The book introduces readers to a broad spectrum of theories and thoughts concerning the remembering and forgetting of statesponsored violence. It could therefore serve as a useful textbook for students, as well as being an inspirational text for established researchers. It certainly inspired me to think beyond concepts that have been taken for granted, and to rethink my approach toward the analysis of transitional justice.
While Leebaw highlights the complexity of shifting analyses from shaming, naming and blaming toward political judgment, I would go one step further. I suggest that it would be 2 fruitful to evaluate approaches to transitional justice by measuring their efficacy. In order to do that, we would need to identify core indicators of the success (or failure) of transitional justice measures. For example, it would be useful to assess a nation’s capacity to remember, both as far as its institutions are concerned, and by conceiving of the nation’s capacity as the sum total of individual capacities. Or, if the punishment of perpetrators were considered a key transitional justice measure, then we could compare the number of presumed perpetrators taken to court, the number of convictions, and the respective lengths of custodial sentences handed out and served. If we were interested in the success of reconciliation, then we could pay closer attention to the level of tolerance among different groups of society.
Once the core indicators are identified, we also need to ensure that there is sufficient data for them. Have the truth commissions and international courts of justice increased the levels of tolerance and democratic engagement in targeted countries? Are relevant statistics available? If so, they should inform the relevant discussions. For example, in discussions about the efficacy of the court in The Hague, it would be helpful to consider the response in Croatia to the recent verdict for the former Croat general Ante Gotovina. Ninety-five per cent of Croatian citizens believe that the verdict was unjust. Gotovina has been a hero for many of them and when Judge, Alphons Orie, sentenced Gotovina to 24 years in prison over the ‘ethnic cleansing’ of 90,000 Serbs, hundreds of people gathered in Jelacic Square in Zagreb to protest. While that in itself is not a useful statistic, it illustrates the depth of feeling among Croats. Both the opinion poll and the public protest say a lot about the efficacy of the court in The Hague in confronting the denial of atrocities committed by Croatia in the Balkan wars.
Analyses of transitional justice would benefit from an interdisciplinary and evidence based approach. I expect this book to inspire others as much as it inspired me, and recommend it not only to scholars interested in history, philosophy, human rights and/or transitional justice, but also to public policy analysts.