Transitional Justice and Settler States

Transitional justice has become the dominant international framework for redressing mass harm and historical injustices. However, transitional justice is commonly premised on the notion of a recent point of rupture or change from violence and oppression to a ‘new dawn’, and has therefore been less attuned to accommodating the long-term effects of colonialism. Accordingly, the historical experiences of Indigenous peoples in settler states such as Australia, New Zealand and North America have been considered outside the field. This exploratory paper sketches out some of the perceived benefits of articulating a new conceptual approach, which at once historicises transitional justice and brings the experiences of Indigenous peoples within its purview. Taking an interdisciplinary (criminological, socio-legal and historical) perspective, we consider why notions of transitional justice have not been thought relevant to the circumstances of settler colonialism. We suggest that while the relatively presentist concerns of transitional justice effectively elide the impact of colonialism, its holistic ameliorative framework might nevertheless become relevant to considerations of how just outcomes might be pursued in settler societies. Similarly, in elaborating the significance of colonial pasts per se in shaping contemporary experiences, such interdisciplinary approaches might also help address some of the criticisms emerging in recent literature on transitional justice. We draw here on a larger team-based and cross-sectoral interdisciplinary research project that has been submitted for funding under the Australian Research Council Linkage scheme. It will be the task of the larger project to develop and explore the many issues arising from this discussion, including the need to identify and examine certain conceptual and applied challenges involved in seeking the kind of comprehensive official recognition of past injustices we simply canvass here. Transitional Justice and Settler States As a field of scholarship and practice, transitional justice has become the dominant international framework for pursuing holistic, pluralist redress for mass harms in so-called Third World societies, yet it has not been able to account for the long-term effects of colonialism. Moreover, as Chris Cunneen (2008:159) has observed, transitional justice ‘has tended to ignore the extent to which liberal democracies themselves might be considered in need of “post-conflict” reconciliation and restorative justice’. This paper discusses some benefits of bringing an interdisciplinary approach to bear on the broader question of state responsibility for mass harms. We set out to interrogate this phenomenon with particular reference to the theory and practice of settler colonialism: we therefore consider critical accounts of the historical experiences of Indigenous peoples in settler states such Australia, New Zealand, Canada and the USA alongside accepted approaches to transitional justice in ‘post-violence’ societies such as South Africa, Rwanda and East Timor. Transitional justice represents a particular approach to understanding and addressing systematic violations of human rights, including military rule and civil war, genocide and widespread oppression. It emerged as a discrete field in the late 1980s as a study of the role of law in times of political transition, prompted by the use of legal and quasi-judicial responses to the end of military rule in societies in South America and the collapse of Communism in East and Central Europe. The term was first captured by Ruti Teitel (2000), who observed the particular role that law can play in 1 School of Social and Political Sciences (Criminology), University of Melbourne.