We are delighted to welcome this blog post from Dr Pádraig McAuliffe, Lecturer in Law at the University of Dundee, and incoming Senior Lecturer at the School of Law and Social Justice, University of Liverpool. Pádraig completed his PhD at UCC under the supervision of Prof Siobhán Mullally, on post conflict reconstruction in Timor Leste (East Timor), focusing in particular on the Special Panels for Serious Crimes – a hybrid transitional justice mechanism. Pádraig’s research was supported by an Irish Research Council Government of Ireland PhD scholarship. While completing his PhD at UCC, Pádraig undertook fieldwork in Timor Leste and was also a visiting fellow at UCLA, School of Law. Prior to taking up a lectureship at the University of Dundee, Pádraig completed a traineeship at the Department of Foreign Affairs, Legal Division.
Pádraig has published extensively in the field of transitional justice and post conflict reconstruction. In this post, Pádraig discusses his recently published book, Transitional Justice and Rule of Law Reconstruction: A Contentious Relationship (Routledge: 2013).
Dr Padraig McAuliffe, Lecturer, University of Dundee, author of Transitional Justice and Rule of Law Reconstruction: A Contentious Relationship (Routledge 2013)
Five years ago I went on field research to Timor-Leste, the focus of my PhD, to examine the impact of the trials of crimes from the period of independence in 1999 on the on-going process of rebuilding the national justice system. I arranged a series of interviews with local people, judges, and figures from the plethora of UN and multilateral agencies involved in these areas.
What struck me in so doing was that people I would interview in relation to prosecutions for crimes against humanity had little or no idea what other interviewees concerned with justice sector reform were doing, despite a general belief in scholarship that the two areas would go hand in hand. I noted this surprising phenomenon parenthetically in my thesis, forgot about it completely, but when I began to think about possible areas of exploration for a book, I thought it would be a fertile field for examination.
What I discovered in writing the book was that this problem of the left hand not knowing what the right was doing in East Timor was being replicated in many other peace-building environments – DR Congo, Sierra Leone, Bosnia, Kosovo, Cambodia. Transitional justice is assumed to conduce to rebuilding the rule of law in even the most critical scholarship in the field, but mutually beneficial symbiosis is more apparent on paper than on the ground.
Concern has also been expressed that it is often the same small pool of talent’ that will undertake both tasks and that the burden of external assistance for dealing with past human rights abuses will fall not on the international justice community, but rather the traditional rule-of-law development organizations on account of their larger network of international organizations, aid agencies, and other donor and implementing bodies. While transitional justice has sometimes stimulated beneficial reform, it can also have the opposite effect – in Kenya, justice NGOs began to give up on campaigns to use a national tribunal to pursue justice for post-election violence when the use of the ICC appeared more immediately feasible. Fear has been expressed that activities (such as transitional justice) that are popular and well-funded may be ‘cherrypicked’ to the detriment of strengthening the justice sector as a whole.
International criminal justice tends to strip national judiciaries of resources and staff, while at the other end of the spectrum the use of indigenous or traditional forms of justice to reckon with localised human rights abuses has consistently been isolated from on-going process of integrating these informal mechanisms into the state justice system.
One explanation my book identifies for this gap is the professional balkanization that typically afflicts rule of law reconstruction missions where different experts and agencies with divergent mandates and different institutional dynamics concentrate intensely on their core competencies, producing hyperfocused approaches that fail to add up to an integrated and effective whole. The presumption appears to be that there will be a complementary overlap between transitional justice and rule of law reconstruction, but given the failure to think through their inter-relation, the book identifies a significant risk of ‘underlap’ where incoherence results from the cacophony of projects.
However, professional balkanization is only the organizational form of a wider problem, namely that activists and theorists in both communities have fundamentally different conceptions of what the rule of law means and requires in post-conflict and post-authoritarian transitions. As this book examines, neither group may not have much knowledge of key debates in the opposite field.
My book therefore attempts to explain how those involved in trials, truth commissions and lustration view the rule of law (a very value laden conception focussed primarily on human rights and norms with little attention given to institutions or the cultural commitments on the parts of ruler and ruled to legality) differently to those attempting to rebuild courts, police systems and prisons (a more technocratic, culture-driven view which incorporates human rights but avoids conflating the two). In so doing, it examines differences of opinion on criminal trial (for the former, it is a means of political signalling where fair trial values are contingent, for the latter it is an example to establish scrupulously fair standards), international criminal law (for the former, international trials are often a superior option because they reinforce the global values of norms, for the latter they risk de-legitimising or infantilising national court systems) and indigenous justice (seen in transitional justice as a bastion of resistance to the state, seen in justice sector reform as a key complement or gap-filler for the nascent state justice system).
Arguing that the often Messianic transitional justice community would do well to heed the limitations of its mechanisms and the radically imperfect conditions to which they deploy, the book recommends policy-makers to re-balance the compromises inherent in transitional justice mechanisms against the foundational demands of rule of law reconstruction.
Prioritizing achievable and pragmatic justice sector reform objectives over the more profound but potentially unobtainable political ends that dominate transitional justice theory, the book recommends that a more clear-eyed vision of costs and benefits, risks and opportunities is required when decisions are made to employ, circumvent or complement the transitional state’s institutions of justice by internationalised trials, truth commissions and other sui generis processes.