The standardisation of transitional justice

Abstract

This article argues that transitional justice (TJ) has recently been standardised: There is now a two-tiered global standard of TJ which structures policy responses and academic thinking. TJ comprises criminal justice, truth-telling, reparation and institutional reform – four core elements in a ‘comprehensive’ approach. The standard involves specifications for design, procedure and performance and draws on a selection of seemingly unambiguous international legal norms. Paradoxically, it claims to eschew a one-size-fits-all formula, while promoting uniformity in diverse contexts. It is moreover unclear whether its implementation generates beneficial effects in society. Building on existing research on international standardisation as an international political and sociological phenomenon, the article analyses the recently developed TJ standard and presents the first account of the process of TJ standardisation. It demonstrates how processes of ‘generification’ and ‘localisation’ make practices transferable and establish the means to facilitate their replication in and across different contexts and settings. These processes are illustrated drawing on existing scholarship from around the world that highlights the acceptance and contestation of and resistance to the standard. After analysing these processes, the article discusses the implications of TJ standardisation for societies, scholarship and global governance.

Thoughts, analysis perspectives and critics of function of punishment in international criminal law

“…The overcoming and reworking of the past is based on the transition theory (Teitel, 2000;Gissel, 2022) which stops at certain historical situations of transformation as a vehicle for ascertaining criminal responsibilities inspired by the German theory of Vergangenheitsbewältigung (Claußen, 1989), i.e. systemic crime born under the Nazi regime in the past (Jakobs, 1992;Alexy, 1993;Pawlik, 1994a;Brugger, 1996;Hillenkamp, 1996;Naucke, 1996;Schlink, 1996;Dreier, 1997;Frisch, 1999;Wilkins, 2001;Kawaguchi, 2002;Günther, 2008;Parmentier, Weitekamp, 2013).…”

“…The question arises from crimes committed by individuals in the context of criminal macro-apparatus where their dimensions coincide with those of the entire State to which they belong and with its fundamental sectors. These types of atrocities are usually not made the object of judgment within the systems committed, positively guaranteeing peace processes in times of transition and suggesting the prospect of an international response which assumes the meaning of an awareness on the part of the international community (Gissel, 2022), that is an exceptional nature of the contexts that occur when taking charge of the protection of those who obtain massive and liable reiterations within their own internal borders. An arbitrary violence where the assumptions of the model of international criminal jurisdiction established by the StICC can be criticized under various profiles.…”

The emerging corporate turn in transitional justice

“…Payne et al (2020: 166) claim that few knew about the abundant mentioning of economic actors in truth reports and that their work is “exposing” what was before “hidden.” Kyriakakis (2021: 181) refers to Payne et al’s database but interprets it with lesser enthusiasm. Corporate accountability, as presented in the publications, mostly relates to the first two pillars of the TJ standard (Gissel, 2022): justice (trials) and truth telling. Beyond that, Pietropaoli explores administrative reparations programs (third pillar) in her sixth chapter and institutional reform in Chapter 7 (fourth pillar).…”

“…The concept “standardized TJ” indicates that increasingly the scope of TJ procedures has been constrained on states and state-like actors, as well as the victims of crimes into a paradigmatic “one-size-fits-all” logic (Sharp, 2015: 152). This movement has gone hand in hand with the increasing normalization and mainstreaming of TJ as a field of practice (Arthur, 2009; Atteberry, 2019; Gissel, 2017, 2022), as it has expanded over time and space (Hansen, 2014; Macdonald, 2019). As Gissel (2022) argues, the standardization of TJ is puzzling because it consolidates practices that have so far not demonstrated a genuine beneficial effect on transitional societies.…”

“…Given the multiple calls for accountability throughout the years, how have corporations managed to escape the last wave of TJ with its central focus on socio-economic justice (Lemay-Hébert and Freedman, 2022; Nolan, 2013; Sharp, 2013)? Do they see TJ, which has increasingly become a standardized set of mechanisms (Gissel, 2022), as a pathway for corporate accountability or does it require new tools, renewal, and/or expansion? Before we return to these questions, first is a brief presentation of the books’ analysis of previous and emblematic cases of TJ, in which economic actors have been included.…”