One of the reasons often given for implementing transitional justice policies in the aftermath of massive human rights violations is that they strengthen the rule of law. While the suitability, compatibility and timing of individual mechanisms are hotly debated issues, transitional justice as a whole is generally assumed to be conducive to the rule of law. Transitional Justice and Rule of Law Reconstruction problematizes that assumption. As the title suggests, it examines the relationship between the fields of transitional justice and rule of law reconstruction. Pádraig McAuliffe argues that although both fields operate in similar post-conflict environments, they have failed to integrate and there is not much academic dialogue between them.
The book frames transitional justice and the rule of law in a post-conflict setting where institutions, culture and trust have to be reconstructed. Thus, both are seen as part of a larger international peace-building process whose different elements have to be harmonized to ensure efficacy and efficiency. The author's main premise is that the rule of law and transitional justice have often been conflated. Thus, it is taken as a given that any transitional justice intervention would foster the rule of law. In contrast, he contends that these two fields are different and that they can obstruct each other as easily as they can be complementary. The second core argument which runs throughout the book is that transitional justice has set itself goals which are too ambitious and impossible to fulfil. McAuliffe favours a more modest role for transitional justice contributing to rule of law reconstruction by putting a greater emphasis on formal procedure rather than on substantive results.
Chapter one introduces the subject of the book by surveying the role that transitional justice has played in international peace-building efforts. It also sets the background by describing the constraints imposed on rule of law reconstruction and transitional justice by the difficult post-conflict environments in which they operate. In a more optimistic vein, this chapter also supports the view that the transitional situation can provide a window of opportunity for strengthening institutions and the rule of law.
The second chapter locates the rule of law within post-conflict peacebuilding and contrasts it with the approach of transitional justice. It follows the development of the notion of the rule of law within UN peacebuilding interventions. The chapter also examines the difficulty that transitional justice has to be integrated to programmes of rule of law reconstruction. It elaborates on the main claim that the notions of transitional justice and rule of law should not be conflated. McAuliffe identifies two problems with transitional justice in this regard: that its practitioners take for granted that the implementation of mechanisms of transitional justice will have salutary effects on the rule of law by instilling in the population a commitment to human rights, and that all accountability measures work well together. In order better to harmonize both fields, McAuliffe proposes that the focus of transitional justice should be on fostering procedural respect for the law. He suggests that while transitional justice is concerned with goals (achieving convictions, revealing the truth), rule of law reconstruction puts the emphasis on means and procedures of justice. He concludes that in order to make a positive contribution to the reconstruction of the rule of law, transitional justice should ensure that its measures respect procedural law.
In the third chapter, McAuliffe turns to the place that the rule of law occupies in transitional justice discourse. He contends that transitional justice relies on a simplistic, linear, narrative according to which the implementation of transitional justice mechanisms automatically strengthens the rule of law. McAuliffe maintains that this narrative does not engage with the complexities of rule of law reconstruction. He contrasts transitional justice, which seeks results within a relatively short period of time due to its ‘transition’ paradigm, with rule of law reconstruction, which seeks longer term stability through buttressing institutions and fostering a culture of legality. The author also argues that the goals that transitional justice sets itself are overly ambitious and that it fails to achieve them. Rather than calling for thicker conceptions of transitional justice, McAuliffe proposes that the field should adopt more modest goals contributing to the longer-term aims of rule of law reconstruction. To that end, the issue of whether there is a specific ‘transitional’ rule of law is examined. The author, while admitting that transitional situations present many challenges, supports the view that there is not a different rule of law at play in transitions. Rather, he holds that the transitional situation might require a trade-off impinging on the rule of law for the sake of another societal value such as peace. From this perspective, the value of transitional justice policies should be assessed according to their contribution to a standard of domestic rule of law.
Whereas chapters two and three develop the core of the book's arguments, the three remaining chapters apply them to specific themes. Chapter four looks into the justification for criminal trials in transitions. It argues that transitional tribunals do not pay enough attention to the demands of the rule of law in such circumstances. McAuliffe starts by stressing that transitional tribunals have favoured utilitarian theories of punishment which focus on the consequences of trials, rather than on their process. Therefore, he argues that, given the difficult circumstances in which transitional trials take place (scarcity of evidence, difficulty of convicting commanders, lack of resources), the need to obtain convictions has often led to lower standards of fair trial, thereby undermining the rule of law. McAuliffe proposes a revised utilitarianism according to which transitional criminal trials should be geared towards strengthening the rule of law by respecting procedural fairness.
Chapter five is also concerned with criminal trials and examines the relationship between international criminal justice and the national rule of law. It argues that international criminal justice efforts have failed to harmonize the international rule of law with national rule of law reconstruction. McAuliffe maintains that international criminal endeavours are caught between an international rule of law which is yet to be fully developed and a national rule of law which they are not designed to reinforce. In order to support this argument, the chapter examines the relationship of different international criminal tribunals to the domestic rule of law. It first argues that the ad-hoc tribunals for Rwanda and the former Yugoslavia gave primacy to international prosecution thus undermining local capacity. It then claims that while the hybrid criminal tribunals in East Timor, Cambodia, Kosovo, Sierra Leone and Bosnia were supposed to foster local judicial institutions, they failed to do so and became increasingly more international. The chapter finally discusses the complementarity regime of the International Criminal Court (ICC). The author maintains that despite the aim of complementarity to encourage states to conduct national prosecutions, these have failed to materialise. As an alternative, the author argues for an ICC more responsive to the need to develop local legal institutions.
Finally, chapter six is devoted to the role of traditional legal practices in transitional justice and rule of law reconstruction. It recognises that both transitional justice and rule of law reconstruction have engaged with traditional mechanisms of dispute resolutions but they have followed different approaches. The author argues that rule of law reconstruction accepts traditional practices as part of the social fabric and tries to integrate them to the formal processes of the state. This is contrasted with transitional justice which, influenced by theories of restorative justice, somewhat romanticises traditional law and uses it to problematize the state. In this way, McAuliffe maintains that transitional justice creates a false dichotomy where the state, criminal justice, top-down approaches, and elites are bad while traditional justice, grass-roots and locals are good. He concludes that by trying to keep the state away from traditional practices, transitional justice prevents them from being integrated in a positive way.
This book offers a much needed exploration of the relationship between two areas which operate closely together in post-conflict environments. It is thoughtful and yet bold in its diagnosis and recommendations. It challenges widely held assumptions and seeks to suggest routes for a better interaction between transitional justice and the rule of law. Its main contention on the need to make transitional justice more attuned to the demands of rule of law reconstruction is consistently championed throughout the book. In a time when most scholars are calling for an expansion of the remit of transitional justice, McAuliffe urges a return to the origins of the discipline amidst the dilemmas of strengthening the state in the wake of a democratic transition. Recognising the challenges and limitations that transitional justice faces, he opts for setting more modest institutional goals rather than aspirational programmes of social transformation. To that end, McAuliffe draws on an impressive number of sources which not only make his argument more compelling but also position this book as a useful bibliographical resource for anyone interested in either transitional justice or rule of law reconstruction.
McAuliffe solidly anchors his approach to transitional justice in the field of international peacebuilding interventions. This inevitably results in putting the stress on the state as the main locus of transitional justice, favouring criminal trials as its mechanism of choice, and emphasising international agency. While some might find this conception of transitional justice too circumspect, in the introduction the author clearly demarcates the area of his concern and candidly recognises the important issues that had to be left out due to space considerations.
There certainly are advantages in adopting more modest goals for transitional justice. In this way, the criticism of the field's institutions never achieving their objectives could be avoided. Also, this approach could produce some tangible results in procedural justice which could be measured against clearly defined goals. At the same time, aligning transitional justice measures with broader rule of law reconstruction programmes is also attractive because it could prevent the problems of duplicating efforts and having one project undoing another. Additionally, it would be positive if transitional justice policies were directed at longer term goals and were more responsive to the demands of procedural justice. Nevertheless, reducing transitional justice to a tool of rule of law reconstruction in peacebuilding initiatives may appear as a demotion to many of its advocates among whom clearly McAuliffe numbers himself. This restrictive approach risks divesting transitional justice from any truly transformative potential. From this perspective, transitional justice initiatives could contribute to strengthening the rule of law but would not attempt to redress deep-seated inequalities in the societies to which they are applied; inequalities which require a fundamental social transformation. Therefore, by trying to steer away from the whirlpool of being too ambitious, this approach to transitional justice might sail dangerously close to the rocks of being too conservative.
Moreover, even though the book professes to offer guidance to policy-makers, it stops short from giving detailed suggestions on how transitional justice mechanisms could be attuned to rule of law reconstruction programmes. It would have been interesting to see concrete examples of how this harmonization might look in practice. In terms of structure, it is not altogether clear what the role of the last three chapters is in the overall plan of the book. Although they explore issues which are very important for transitional justice and rule of law reconstruction, they appear somewhat fragmented and narrow compared with the general scope of the first three chapters. However, this does not detract from the flow of the book's narrative.
In Transitional Justice and Rule of Law Reconstruction Pádraig McAuliffe has produced a well-researched and lucid book which makes a strong case for bringing these two fields closer together.
