Designing Bespoke Transitional Justice: A Pluralist Process Approach

Abstract

This article offers a novel pluralist process theory of transitional justice. The theory leads to a prescriptive recommendation: institutions that account for mass violence should be primarily locally controlled and always precisely tailored to particular societies through an inclusive constitutive process.

The paper first describes the design flaws of international criminal law as a response to mass atrocities. It proposes that effective transitional justice mechanisms are those that successfully reconstruct social norms opposing mass violence. Drawing from several disciplines, the article suggests that such reconstruction requires the local population to perceive transitional justice mechanisms as legitimate and the values they propound as worthy of internalization – hence they must be carefully tailored to the society they serve. The paper provides the first comprehensive attempt to catalogue the perceptions and attitudes of local populations toward contemporary transitional justice mechanisms. It reviews quantitative and qualitative evidence and concludes that the varieties of transitional justice each have strengths and limitations that might make them more or less appropriate for a given society. To craft effective transitional justice mechanisms, the article offers design principles that aim to buttress the legitimacy of the source, procedure, and substance of these institutions, as well as evidence-based and locally grounded methods to implement these principles. This pluralist process design may more effectively reconstruct norms in societies afflicted by mass violence. This approach suggests a new direction for public international law, in which “international” is interpreted as pluralist rather than universalist and “law” is viewed as process rather than mandated content.

Keywords: transitional justice, legal pluralism, legitimacy

JEL Classification: K33