Violence, Law and the Impossibility of Transitional Justice

207 Pages·2016·26.59 MB·English

by  Catherine Turner

Violence, Law and the Impossibility of

Transitional Justice
The field of transitional justice has expanded rapidly since the term first
emerged in the late 1990s. Its intellectual development has, however, tended
to follow practice rather than drive it. Addressing this gap, Violence, Law and
the Impossibility of Transitional Justice pursues a comprehensive theoretical inquiry
into the foundation and evolution of transitional justice. Presenting a detailed
deconstruction of the role of law in transition, the book explores the reasons for
resistance to transitional justice. It explores the ways in which law itself is com-
plicit in perpetuating conflict, and asks whether a narrow vision of transitional
justice – underpinned by a strictly normative or doctrinal concept of law – can
undermine the promise of justice. Drawing on case material, as well as on per-
spectives from a range of disciplines including law, political science, anthropol-
ogy and philosophy, this book will be of considerable interest to those concerned
with the theory and practice of transitional justice.
Catherine Turner is a Lecturer at Durham Law School, Durham University, UK.
Transitional Justice
Series Editor: Kieran McEvoy
Queen’s University Belfast
The study of justice in transition has emerged as one of the most diverse and
intellectually exciting developments in the social sciences. From its origins in
human rights activism and comparative political science, the field is increasingly
characterised by its geographic and disciplinary breadth. This series aims to pub-
lish the most innovative scholarship from a range of disciplines working on tran-
sitional justice-related topics, including law, sociology, criminology, psychology,
anthropology, political science, development studies and international relations.
Titles in this series: Transitional Justice in Latin
America
The Concept of the Civilian Elin Skaar, Jemima García-Godos and
Legal Recognition, Adjudication and Cath Collins (2016)
the Trials of International Criminal
Justice
Forthcoming titles in the series:
Claire Garbett (2014)
After Violence The Judiciary and the Politics of
Transitional Justice, Peace and Transition
Democracy Police Brutality Cases in Chile,
Elin Skaar, Camila Gianella and Northern Ireland and South Africa
Trine Eide (2015) Marny Requa
Transitional Justice and
The Trouble with Truth
Reconciliation
Dealing with the Past in Northern
Lessons from the Balkans
Ireland
Edited by Martina Fischer and Olivera
Kieran McEvoy
Simic´ (2016)
Violence, Law and the

Impossibility of
Transitional Justice
Catherine Turner
First published 2017
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
a GlassHouse book
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2017 Catherine Turner
The right of Catherine Turner to be identified as author of this work has been
asserted by her in accordance with sections 77 and 78 of the Copyright, Designs
and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in
any form or by any electronic, mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any information storage or
retrieval system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identification and explanation without
intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloguing in Publication Data
Names: Turner, Catherine (Law teacher)
Title: Violence, law and the impossibility of transitional justice / Catherine Turner.
Description: Abingdon, Oxon; New York, NY : Routledge, 2016. |
Series: Transitional justice | Includes bibliographical references and index.
Identifiers: LCCN 2016001213| ISBN 9781138907560 (hbk) |
ISBN 9781315695044 (ebk) Subjects: LCSH: Transitional justice.
Classification: LCC JC580.T87 2016 | DDC 320.01/1–dc23
LC record available at https://lccn.loc.gov/2016001213
ISBN: 9781138907560 (hbk)
ISBN: 9781315695044 (ebk)
Typeset in Baskerville by
Out of House Publishing
Contents

Acknowledgements ix
1 Introduction 1
1.1 What is ‘transitional justice’? 1
1.2 Aim of the book 2
1.3 Northern Ireland: a conflicted democracy 4
1.4 Outline of the book 8
2 Transitional justice: the constitution of the field 13
2.1 Establishing the ‘field’ 15
2.1.1 The law and politics of transition 15
2.1.2 Transitional justice and the rule of law 17
2.2 Transitional justice: the margin and the mainstream 20
2.2.1 The emergence of the transitional justice norm 21
2.2.2 Transitional justice and opposition 22
2.3 Transitional justice and critique 25
2.3.1 Internal critique and the boundaries of ‘transition’ 25
2.3.2 External critiques and the meaning of ‘transition’: truth and
reconciliation 33
2.3.3 Transitional justice and the ideology critique 42
2.4 Conclusion 44
3 Introducing uncertainty: deconstruction and transitional justice 46
3.1 What is deconstruction? 47
3.1.1 Logocentrism 48
3.1.2 Nothing beyond the text 50
3.1.3 ‘Différance’ 52
3.2 Deconstruction ‘happens’ 54
3.2.1 Deconstruction is not a method 55
3.2.2 Deconstruction is not critique 56
vi Contents
3.2.3 Deconstruction is not an act 57
3.2.4 Deconstructing transitional justice 58
3.3 Law and deconstruction 59
3.3.1 Axiomatic propositions of law 60
3.3.2 The ‘essentially deconstructible’ nature of law 64
3.3.3 Law as the means to justice (or why deconstruction is
a valuable approach to transitional justice) 66
3.4 Conclusion 69
4 Violence 70
4.1 The economy of violence 72
4.1.1 The violence of the origin 73
4.1.2 Reparatory violence (on the obliteration of the origin) 76
4.1.3 The violence of reflection 80
4.2 Contested narratives and the turn to violence 82
4.2.1 Legitimate ‘force’ and illegitimate ‘violence’ 84
4.2.2 The mythic state and the divine terrorist 85
4.2.3 ‘Emergency’ as an ‘exceptional’ state of affairs 88
4.3 The mutual contamination between violence and law 92
4.4 Conclusion 96
5 Law 98
5.1 The violence of the origin 101
5.1.1 Shifting means of resistance: the Armalite and the
ballot box 101
5.1.2 Framing the Agreement 103
5.1.3 The Agreement as a constitutional moment 107
5.1.4 Declaring or creating unity? 110
5.2 Concealing the violence of the origin 114
5.2.1 Northern Ireland in ‘transition’ 114
5.2.2 Dominant and subordinate accounts of conflict 115
5.2.3 Litigating the Agreement (and concealing the
violence of the origin) 118
5.3 The violence of reflection – flags, parades and the past 123
5.3.1 Flags 124
5.3.2 Parades 127
5.4 Conclusion – the hierarchy inverted 129
6 Justice 132
6.1 What is transitional ‘justice’? 134
6.1.1 How is ‘justice’ defined? 135
6.1.2 How is ‘justice’ achieved? 140
Contents vii
6.2 Law and justice 146
6.2.1 First aporia: the rule 149
6.2.2 Second aporia: ‘the ghost of the undecidable’ 153
6.2.3 Third aporia: ‘the urgency that obstructs the horizon of
knowledge’ 158
6.3 Conclusion: justice ‘to come’ 163
Conclusion: the impossibility of transitional justice? 165
1. The importance of critique in transitional justice research 166
2. Transitional justice as autoimmunity 169
3. ‘Impossible’ is not the opposite of ‘possible’ 171
Bibliography 174
Index 188
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Acknowledgements

This book is the product of a personal journey with the law. The journey began
when I was an undergraduate student at Trinity College Dublin and has travelled
via The Hague, London and Belfast. In the course of that journey I have met and
been impressed by too many people to name individually, but each has played
their part.
My professional journey in transitional justice began at the Transitional Justice
Institute, Ulster University, where I worked with Professors Fionnuala Ní Aoláin
and Colm Campbell. Under their guidance I learned to articulate the questions
I had about transitional justice. The research I undertook with them initiated a
critical engagement with the law that underpins this book. During my years at
the Transitional Justice Institute I was also lucky enough to enjoy the friendship
and support of my colleagues, including Catherine O’Rourke, Louise Mallinder,
Monica McWilliams and Kirk Simpson, all of whom have read and commented
on parts of this work at one stage or another. They have between them provided
advice and support for the journey, and the occasional timely intervention at criti-
cal junctures. Thanks also go to Lisa Gormley for her friendship and her help
over the years organising a research career, and to Elizabeth Super and Tim
Cunningham, who I appreciate in too many ways to list. I have also benefited
from advice and support from colleagues at Queen’s University Belfast, where
I undertook my doctoral research. Thanks are due to Kieran McEvoy for taking
an interest in the project, and to Rory O’Connell and Bal Sohki-Bulley who have
both provided helpful advice and comments along the way. Special thanks must go
to Gordon Anthony and to Sara Ramshaw. Both have been so generous with their
time and with their expertise, and both have helped me to make better sense of a
number of aspects of this work.
My journey has not been exclusively academic. I have also had the privilege to
work for a number of years with Mediation Northern Ireland, and to gain experi-
ence of peace-building in practice. During the course of this work I have met
and worked with a number of truly inspirational people who are quietly making
a very significant social impact in Northern Ireland. I am particularly indebted
to Brendan McAllister, who gave me the opportunity to become involved in this