The harm perpetrated by the state of Australia against it Indigenous peoples has been structured, prolonged, and driven by race. In this paper, we conceptualize this harm and how it has been denied (and particularly how race has affected this harm and its denial). Although transitional justice literature has not traditionally been applied to an established democracy like Australia, we demonstrate why it is appropriate to apply transitional justice practices to the relationship between the Australian state and Indigenous peoples, and what transitional justice practices might provide in the Australian case. In particular, we argue that a transitional justice framework may allow Indigenous voices to name the harm inflicted on them, and position the state as acknowledging the harm that they have perpetrated -bringing a fundamentally new relationship between the state and Indigenous peoples.

How are Indigenous and settler relationships structured, and how is conflict addressed? In settler-colonial societies, complex patterns exist between Indigenous and non-Indigenous communities who share the same territory, but whose relationships have been characterized by harm and violence. This violence is not just a matter of history, 1 but exists for as long as the Indigenous and settler communities are in conflict-potentially hundreds of years. Moreover, the harm is not solely acute, for example in the form of physical acts of violence; it also takes the form of less visible but nonetheless highly structured and systemic violence. These forms of violence might include discrimination, socioeconomic inequality, poorer health outcomes and denial of meaningful self-determination. How, then, can 'reconciliation' occur, when for many the harms are not past but rather continuing, and occur in ways that are not broadly appreciated as violence, as they are committed in times of 'peace'? How do the field of transitional justice and 1 Although the historical record of settler-colonial violence is integral, and very well established. In the

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The harm perpetrated by the state of Australia against it Indigenous peoples has been structured, prolonged, and driven by race. In this paper, we conceptualize this harm and how it has been denied (and particularly how race has affected this harm and its denial). Although transitional justice literature has not traditionally been applied to an established democracy like Australia, we demonstrate why it is appropriate to apply transitional justice practices to the relationship between the Australian state and Indigenous peoples, and what transitional justice practices might provide in the Australian case. In particular, we argue that a transitional justice framework may allow Indigenous voices to name the harm inflicted on them, and position the state as acknowledging the harm that they have perpetrated -bringing a fundamentally new relationship between the state and Indigenous peoples.

In contemporary international criminal trials, the most fundamental guiding principles – those of fairness and rights – are divorced both from each other, and from procedural decisions. Indeed, I have shown how fairness has been rhetorically invoked to justify decisions that, nonetheless, have the effect of undermining the rights of the accused. Given the centrality of fairness and rights to international criminal law, this is a profound challenge for the system of law, its institutions, and its processes. In these Conclusions, I examine what this tells us about international criminal law and its structural limitations and conditions of possibility. I make the ultimate normative argument of this book: that there should be a renewed closeness between fairness and rights in the context of procedural decision-making in these trials. However, I also emphasise that even this claim is uncomfortable, given the possibilities and impossibilities of international criminal law, and that perhaps alternatives to this system should be investigated.