Book Review: Transitional Justice and the Public Sphere: Engagement, Legitimacy and Contestations

Christje Brants and Susanne Karstedt, eds. Transitional Justice and the Public Sphere: Engagement, Legitimacy and Contestations 2017, Hart Publishing: Oxford and Portland.

8 November 2022

This edited collection offers an important contribution to conversations about the role(s) of competing public spheres in transitional justice, particularly in relation to international and national criminal courts. The book’s three sections place criminal justice at the centre of the transitional justice framework, rather than framing the topics indicated in the book’s title: engagement, legitimacy and contestations. This is perhaps a missed opportunity; a different focus could have offered a more rounded discussion that addressed forms of transitional justice beyond criminal justice.

Section one focusses on the ‘principles of justice’ and opens up a conversation about the role of criminal courts within transitional justice frameworks. Whose purpose do they serve, and how do they navigate the sometimes vast geographical and social distance between the courts themselves, the international public sphere and the local publics who rightly have their own views on what justice looks like? The chapters of this section are the most densely theoretical of the volume, as they seek to address fundamental questions of the legitimacy of the legal justice institutions of transitional justice and which publics are involved in making them legitimate. Antony Pemberton’s and Rianne Letschert’s opening chapter on ‘Justice as the Art of Muddling Through’ offers a thoughtful discussion of the limitations of current systems of international criminal justice, through the framework of two classical Sanskrit concepts of justice as niti and justice as nyaya, which are explained in detail in the text but loosely relate to a distinction between ideal and messy justice. Pemberton and Letschert argue that while an idealised form of justice may satisfy the international public sphere, a less idealised approach is needed to meet the needs of victims and the break the cycle of violence.

Two of these first four chapters are written by the editors themselves, with Brandt (re)turning to the question of the ‘victim paradigm’; which she says is grounded in an emotionality that is at odds with the rational public sphere of the legal courtroom and ultimately “asks too much of the (international) criminal law”. Brandt argues that the criminal court, whether domestic or international, must be grounded in a rationality that is transparent and comes to an ‘acceptable truth’ – not ‘the truth’. Karstedt’s chapter addresses the ‘legitimacy and credibility’ of legal justice within a transitional justice framework, where legal mechanisms are often seen as imposed from without. Ultimately, she argues, to achieve credibility, trust needs to be developed in dialogue between “institutions, procedures and audiences of transitional justice”. Closing out this first section, Paul de Hart’s contribution is the only chapter to address directly the need to expand the transitional justice framework beyond post-conflict and post-authoritarianism. His attempt to sketch out analytical tools for understanding international criminal justice within the public sphere is anchored in three key notions of transparency, accountability and participation.

Together, these four chapters offer a clear articulation of the core challenges of transitional justice within a global public sphere, from a criminal justice perspective. The main limitation of this part of the book; however, is that it clearly aligns the concept of ‘justice’ with ‘criminal justice’, while paying lip service to the idea that these are only part of the transitional justice framework.

Section two continues to focus on legal issues, with four chapters that consider questions of transparency and fairness, and demonstrate the diversity of what may be meant by a transitional justice trial. The chapters in this section are predominantly case studies and offer concrete examples of the ways some of the challenges identified in section one have played out. This historically grounded approach opens up discussion of the geo-political and cultural factors at play in transitional justice processes. For example, in her discussion of ‘The Case of Thomas Kwoyelo’, Lauren Gould notes that the legacies of French colonialism in Uganda meant that the International Crimes Division of the High Court of Uganda has adopted the European ‘inquisitorial’ style of prosecution, rather than Anglo-style adversarial prosecution and defence. She argues that this allowed victim groups to be heard, and opened up space for dialogue.

While again focussing on the criminal justice part of transitional justice, the chapters in this section begin to expand this frame, for example with Olga Kavran focussing on the ways international and hybrid criminal courts since the 1990s have incorporated public relations into their infrastructure, to enable them to communicate as directly as possible with a range of publics. This chapter’s expansion, however, does not include discussion of national inquiries and truth commissions as part of the transitional justice framework. Kavran’s chapter in particular highlights the lack; a discussion of the importance of publicity and public relations to the perceived success of these related mechanisms would have been a welcome addition to this section. Given the strong contribution of Australian scholars to this volume, it would also have been good to see consideration of the role of transitional justice frameworks in settler-colonial contexts.

Section three, ‘Beyond the Courts’, includes some of the collection’s most nuanced chapters, and Antonius CGM Robben’s excellent opening, ‘Witness Testimony and the Incommensurability of Truth in Argentina’ is a highlight. In his discussion of the historical layers through which the public of Argentina have become aware of and begun to address their difficult past, Robben makes the crucial point that “justice is not confined to the courtroom and judicial truth is only one among many,”—a point I would argue deserves a fuller exploration in this volume. For the collection to work as a whole, there needed to be further consideration of how the final group of chapters should be understood in relation to the rest of the book. While the first four retain some discussion of the criminal prosecution or legal frameworks, Olivera Simić’s discussion of symbolic reparation in the form of two post-conflict art projects seems out of place.  

As the editors rightly point out in their introduction, “Institutions of transitional justice and their public spheres are intricately linked and constantly interact.” However, within this collection, the focus is primarily on legal institutions, and indeed at times there is a risk that other parts of the transitional justice ‘toolkit’ are seen as optional extras. While the book claims to bring an interdisciplinary perspective, the overwhelming majority of the contributors are legal scholars, albeit from a range of perspectives. As a scholar who is interested in transitional justice and the public sphere beyond the courts, I was disappointed not to see this interdisciplinarity extended. However, readers are unlikely to read such an edited collection from front to back, and there are many points of internal dialogue between chapters in different sections. Understood as a trans-disciplinary dialogue, rather than an interdisciplinary exploration, the strengths of the volume become more evident. 

Overall, this collection brings together an impressive range of scholars from different geographical contexts and career stages to explore the role of the public sphere in understanding ‘justice’ within a transitional justice framework, with a particular focus on legal justice. It will be of use to legal scholars, and to those interested in the role of the public sphere who would like a more nuanced understanding of the role of criminal courts within transitional justice frameworks.