Beyond legalism: Towards a thicker understanding of transitional justice

Journal of Law and Society

Volumn 34, Issue 4, 2007, Pages 411-440

  McEvoy, Kieran ^a  

^a QUEEN'S UNIVERSITY BELFAST   (United Kingdom)

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[No Author keywords available]

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EID: 36549004609     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2007.00399.x     Document Type: Article

References (205)

1. The rising profile and broadening gaze of transitional justice was confirmed by the publication of a report by the UN Secretary General in 2004, in which transitional justice is defined as: comprising] the full range of processes and mechanisms associated with a society's attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof. See United Nations, The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies (2004) Available at 〈http://daccessdds.un.org/doc/ UNDOC/GEN/N04/395/29/PDF/N0439529.pdf〉.
2. The scholarly literature on the topic is discussed throughout the paper.
3. R. Teitel, 'Transitional Justice Genealogy' (2003) 16 Harvard Human Rights J. 69-94.
4. Of course, sociologists, psychologists, anthropologists, criminologists, political scientists and others are producing thoughtful and insightful scholarship about transitional justice (see, for example, the work of Claire Moon, Brandon Hamber, Richard Wilson, Laura Piacentini, Tim Kelman) as well as others cited below in this article. However, one suspects that few of these scholars would dispute that law is the dominant discourse.
5. R. Brooks, 'The New Imperialism: Violence, Norms, and the "Rule Of Law'" (2003) 101 Michigan Law Rev. 2275-340.
6. P. Roberts and N. McMillan, 'For Criminology in International Criminal Justice' (2003) 1 J. of International Criminal Justice 315-38.
7. K. McEvoy and H. Mika, 'Restorative Justice and the Critique of Informalism in Northern Ireland' (2002) 43 Brit. J. of Criminology 534.
8. K. McEvoy, 'Beyond the Metaphor: Political Violence, Human Rights and "New" Peacemaking Criminology' (2003) 7 Theoretical Crim. 319;
9. Healing Through Remembering, Making Peace with the Past: Options for Truth Recovery in Northern Ireland (2006).
10. For a classic discussion of this tension, see N. Christie, 'Conflicts As Property' (1977) 17 Brit. J. of Crim. 1-15.
11. For a discussion on the nature of the Northern Ireland transition, see C. Campbell, F. Ní Aoláin, and C. Harvey, 'The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland' (2003) 66 Modern Law Rev. 317-45;
12. C. Campbell and F. Ní Aoláin, 'Local Meets Global: Transitional Justice in Northern Ireland' (2003) 26 Fordham J. of International Law 871-92.
13. See K. McEvoy, H. Mika, and K. McConnachie, Reconstructing Justice After Conflict: A Bottom Up Perspective (2008, forthcoming).
14. See, generally, C. Geertz, The Interpretation of Cultures (1973);
15. M. Coppedge, 'Thickening Thin Concepts and Theories: Combining Large-N and Small-N in Comparative Politics' (1999) 31 Comparative Politics 465-76;
16. J. Newman, 'Through Thick and Thin?: The Problem of the "Social" in Societal Governance' (2004), available at 〈http://www.open.ac.uk/socialsciences〉.
17. For an excellent discussion of these various distinctions, see R. Peerenboom, China's Long March to the Rule of Law (2002).
18. J. Shklar, Legalism (1963) 2: The urge to draw a clear line between law and non-law has led to the constructing of ever more refined and rigid systems of formal definition. This procedure has served to isolate law completely from the social context from which it exists. Law is endowed with its own discrete, integral history, its own science, and its own values, which are all treated as a single 'block' sealed off from general social history, from politics, from morality ... This procedure has served its own ends very well ; it aims at preserving law from irrelevant considerations, but it has ended by fencing legal thinking off from contact with the rest of historical thought and experience.
19. id., p. 9.
20. See, for example, D. Dyzenhaus, Legality and Legitimacy (1997).
21. F. Ní Aoláin and C. Campbell, 'The Paradox of Transition in Conflicted Democracies' (2005) 27 Human Rights Q. 172-213.
22. See, generally, M. Loughlin, Sword and Scales: An Examination of the Relationship Between Law and Politics (2000).
23. See, generally, S. Roach Anleu, Law and Social Change (2000);
24. I. Ward, Introduction to Critical Legal Theory (2004, 2nd edn.).
25. F. Cownie, Legal Academics: Cultures and Identities (2004).
26. For a discussion of the philosophical underpinnings of this style of legal analysis, see M. Kramer, In Defense of Positivism: Law Without the Trimmings (1999).
27. M. Koskenniemi, 'The Fate of Public International Law: Between Technique and Politics' (2007) 70 Modern Law Rev. 1-30.
28. See, for example, M. Weber, Economy and Society: An Outline of Intepretative Sociology (1978).
29. See J.R. Terdiman, translator's introduction to P. Bordieu, 'The Force of Law: Towards a Sociology of the Juridical Field' (1987) 38 Hastings Law J. 805-53.
30. P. Ewick and S. Silbey, The Common Place of Law: Stories from Everyday Life (1998).
31. C. Geertz, Local Knowledge: Further Essays in Interpretive Sociology (1983) at 234.
32. See, also, S. Roberts, 'After Government?: On Representing Law Without the State' (2005) 68 Modern Law Rev. 1-24.
33. For example, T. Halliday, Beyond Monopoly: Lawyers, State Crises and Professional Empowerment (1987).
34. B. de Sousa Santos, Towards a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (2002) 55-61.
35. See R. Teitel, 'Humanity's Law: Rule of Law for the New Global Politics (2002) 35 Cornell International Law J. 355-87, at 365.
36. See, also, R. Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (2000).
37. S. Ratner, 'New Democracies: Old Atrocities' (1999) 87 Georgetown Law J. 707-48.
38. See R. Teitel, Transitional Justice (2000);
39. S. Ellmann, In a Time of Trouble: Law and Liberty in South Africa's State of Emergency (1992).
40. See, for example, M. Osiel, Mass Atrocity, Collective Memory and the Law (1999).
41. See, for example, L. Piacentini, Surviving Russian Prisons: Punishment, Economy and Politics in Transition (2004).
42. J. Thompson, Organizations in Action: Social Science Bases of Administrative Theory (2003).
43. M. Ignatieff, Human Rights as Politics and Idolatry (2001) 53.
44. C. Douzinas, The End of Human Rights (2000) 1.
45. See, generally, F. Klug, Values for a Godless Age: The Story of the United Kingdom's New Bill of Rights (2000).
46. Douzinas, op. cit., n. 33.
47. C. Norris, Reclaiming Truth: Contribution to a Critique of Cultural Relativism (1996).
48. U. Baxi, The Future of Human Rights (2002) 111-12.
49. See, generally, M. Mandami (ed.), Beyond Rights Talk and Culture Talk (2000)
50. and P. Jones and K. Stokke (eds.), Democratising Development: The Politics of Socioeconomic Rights in South Africa (2005).
51. A. Woodiwiss, Making Human Rights Work Globally (2003).
52. Ignatieff, op. cit., n. 32, at p. 20, and D. Kennedy, 'The International Human Rights Movement: Part of the Problem?' (2002) 15 Harvard Human Rights J. 116.
53. See, for example, E. Feiner, Human Rights Leaders in Conflict Zones: A Case Study of the Politics of 'Moral Entrepreneurs' (2004), available at 〈http://www.ksg.harvard.edu/cchrp/pdf/Felner.2004.pdf〉.
54. R. Wilson, 'Is the Legalisation of Human Rights Really the Problem: Genocide in the Guatemalan Historical Clarification Commission' in The Legalisation of Human Rights: Multi-Disciplinary Perspectives on Human Rights and Human Rights Law, eds. S. Meckled-Garcia and B. Çali (2006) 81.
55. Wilson, id.
56. S. Cohen, States of Denial: Knowing About Atrocities and Suffering (2002) 108.
57. M. Taussig, Law in a Lawless Land (2003). This disconnect is referred to in Colombia as 'Santanderismo'. Santander, known as the 'lawgiver', fought beside Simon Bolivar in the Colombian War of Independence and became president of the then New Granada in 1833. A quotation from him - 'guns have given you independence, laws will give you freedom' - is inscribed over the entrance to Colombia's Supreme Court. I am indebted to Prof. Rodrigo Uprimny, former Judge of the Colombian Constitutional Court for his impeccable guidance on the nuances of this aspect of Colombian legal and political culture.
58. For example, one argument which was put forward by senior prison officials in Northern. Ireland in the wake of the paramilitary cease-fires was that releases of politically motivated prisoners would discriminate against 'ordinary decent criminals'. The author and others spent considerable time contesting the legal validity of that position. Years later, after all qualifying political prisoners had been released within two years of the Good Friday Agreement, one senior official candidly acknowledged: 'You took all that human rights discussion far too seriously, of course it was just a negotiating position.' See K. McEvoy, Paramilitary Imprisonment in Northern Ireland (2001) especially ch. 11.
59. J. Borneman, Settling Accounts: Violence, Justice and Accountability in Post-socialist Europe (1997). Richard Wilson makes a similar criticism concerning the de facto absence of retributive justice in the South African truth and reconciliation process.
60. See R. Wilson, The Politics of Truth and Reconciliation in South Africa (2001).
61. See D. Newman, 'The Rome Statute, Some Reservations Concerning Amnesties and a Distributive Problem' (2005) 20 Am. University International Law Rev. 293-357;
62. W. Schabas, An Introduction to the International Criminal Court (2004). Schabas does note, however, at p. 87, that: ... it has been suggested that genuine but non-judicial efforts at accountability that fall short of criminal prosecution would have the practical effect of convincing the Prosecutor to set priorities elsewhere.
63. See R. Kerr, The International Criminal Tribunal for the Former Yugoslavia (2004);
64. L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (2005).
65. Under pressure from the United Nations and elsewhere, the ICTY and the ICTR have attempted to speed up their legal processes through their respective completion strategies. In the most recent update on progress on the ICTY, the President of the Court, Fausto Pocar, confirmed that trials will continue into 2009 at least. The ICTR estimates that by the end of 2008 the trials of 65-70 persons will have been completed. See ICTY, Assessment and Report of Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, Provided to the Security Council Pursuant to Paragraph 6 of Council Resolution 1534 (2004) (May 2006)
66. and ICTR, Completion Strategy of the International Criminal Tribunal for Rwanda (May 2006) S 2006/358.
67. See, generally, Schabas, op. cit., n. 48.
68. See, generally, P. Hayner, Unspeakable Truths:Facing The Challenge Of Truth Commissions (2002)
69. and P. De Greiff (ed.), A Handbook on Reparations (2006).
70. Brooks, op. cit., n. 5.
71. R. Rotberg (ed.), State Failure and State Weakness in Time of Terror (2004).
72. See, generally, M. Cherif Bassiouni (ed.), Post-conflict Justice (2002).
73. J. C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (1999).
74. For example, J. Bartelson, The Critique of the State (2001).
75. P. Steinberger, The Idea of the State (2004) 13.
76. M. Douglas, How Institutions Think (1986) 53.
77. See, also, M. Brinton and V. Nee, The New Institutionalism in Sociology (1998).
78. Douglas, id., p. 45
79. Christie, op. cit., n. 9.
80. J. Stromseth, D. Wippman, and R. Brooks, Can Might Make Rights? Building the Rule of Law After Military Interventions (2006), especially ch. 5.
81. F. Fukuyama, State Building: Governance and World Order in the 21st Century (2004) 28.
82. See, for example, W. Easterly, The Elusive Quest for Growth: Economists' Adventures and Misadeventures in the Tropics (2001);
83. N. van de Walle, African Economies and the Politics of Permanent Crisis 1979-1999 (2001);
84. World Bank, Reforming Public Institutions and Strengthening Governance. (2000).
85. See R. Paris, At War's End: Rebuilding Peace After Civil Conflict (2004) 205.
86. D. Brinkerhoff, 'Rebuilding Governance in Failed States and Post-Conflict Societies: Concepts and Cross Cutting Themes' (2005) 25 Public Administration and Development 3-14.
87. Scott, op. cit., n. 56.
88. See, generally, D. Beetham, The Legitimation of Power (1991).
89. For an excellent discussion on thicker forms of accountability at community level, see D. Roche, Accountability in Restorative Justice (2003).
90. For a useful overview of the relationship between sovereignty and law, see Loughlin, op. cit., n. 16, especially ch. 9.
91. P. Gready, 'Reconceptualising Transitional Justice: Embedded and Distanced Justice' (2005) 5 Conflict, Security and Development 2-21.
92. For a provocative discussion on this issue, see J. Griffith, 'Is Law Important?' (1979) 54 New York University Law Rev. 342-74.
93. See M. Larson, 'On the Matter of Experts and Professionals, or How is It Possible to Leave Nothing Unsaid' in The Formation of Professionals: Knowledge, State and Strategy, eds. R. Torstendal and M. Burrage (1990).
94. See, generally, T. Johnson, Professions and Power (1972);
95. K. MacDonald, The Sociology of the Professions (1995);
96. J. Morison and P. Leith, The Barrister's World and the Nature of Law (1995);
97. R. Abel, English Lawyers: Between Market and State (2003);
98. F. Kay, 'Professionalism and Exclusionary Practices: Shifting the Terrain of Privilege and Professional Monopoly' (2004) 11 International J. of the Legal Profession 11-20;
99. K. McEvoy and R. Rebouche, 'Mobilising the Professions: Lawyers, Politics and the Collective Legal Conscience' in Judges, Human Rights and Transition, eds. J. Morison, K.McEvoy, and G. Anthony (2007).
100. See, generally, M. Ignatieff, Empire Lite: Nation Building in Bosnia, Kosovo and Iraq (2003);
101. Paris, op. cit., n. 65;
102. R. Caplan, International Governance of War-Torn Territories: Rule and Reconstruction (2005).
103. For example, as one prominent human rights lawyer who was intimately involved in the processes of early release of prisoners in South Africa and later in Northern Ireland told the author, 'of course the law is important, but at the end of the day you have to remember that this is a political and not a legal process.' Interview with Brian Curran, see K. McEvoy, 'Prisoner Release and Conflict Resolution: International Lessons for Northern Ireland' (1998) 8 International Criminal Justice Rev. 33-61 for further discussion.
104. See Wilson, op. cit., n. 42;
105. C. Moon, 'Prelapsarian State: Forgiveness and Reconciliation in Transitional Justice' (2004) 17 International J. for the Semiotics of Law 185-97.
106. Extracts from the opening statement by American Prosecutor David Crane at the trial of former CDF militia leader Samuel Hinga Norman are illustrative: On this solemn occasion, mankind is once again assembled before an international tribunal to begin the sober and steady climb upwards towards the towering summit of justice... The rule of law marches out of the camps to the downtrodden onward under the banner of never again and no more ... The light of this new day - today - and the many tomorrows ahead are a beginning of the end of the life of that beast of impunity, which howls in frustration and shrinks from the bright and shining light spectre of the law. The jackals whimper in their cages certain of their impending demise. The Law has returned to Sierra Leone and it stands with all Sierra Leoneans against those who seek their destruction. (3 June 2004, Trials of Samuel Hinga Norman, Moinana Fofana, Allieu Kondewa, Case No. SCSL-030140I.) For a review of public opinion on these and other cases, see E. Sawyer and T. Kelsall, 'Truth Vs Justice: Popular Views on the Truth and Reconciliation Commission and the Special Court of Sierra Leone' (2007) 7 OnlineJ. of Peace and Conflict Resolution 36-68.
107. See T. Kelsall, 'Politics, Anti-politics, International Justice: Language and Power in the Special Court for Sierra Leone' (2006) 32 Rev. of International Studies 587-602.
108. Although the tribunal was staffed by Iraqi judiciary, it was heavily influenced by the US Department of Justice Regime Crimes Liaison Office which was involved in selecting and training the judges, drafting the relevant statute, and assisting the tribunal throughout its deliberations. For an interesting debate on the format of the tribunal, see C. Doebbler and M. Scharf, 'Will Saddam Hussein get a Fair Trial?' (2005-2006) 37(6) Case Western Reserve J. of International Law 21-40.
109. See Amnesty International press release, 'Amnesty International Deplores Execution of Saddam Hussein' (30 December 2006), which describes the trial as 'a deeply flawed process' and 'being seen by many as little more than victors' justice.' AI Index: MDE 14/043/2006 〈http://www.amnesty.org〉.
110. For useful critical discussion, see T. Carothers, 'The Rule of Law Revival' (1998) 77(2) Foreign Affairs 95-106;
111. D. Sharp, 'Prosecutions, Development, and Justice: The Trial of Hissein Habré' (2003) 16 Harvard Human Rights Law Rev. 147-78.
112. See Stromseth et al., op. cit., n. 62, especially ch. 8. Certainly the author's own experience in doing human rights training and education with ex-combatants in Northern Ireland would strongly suggest that such a style of delivery is more readily received and arguably much more likely to be genuinely internalized into the actual practice of the participants than a more traditional doctrinal exposition of the relevant international standards. For a discussion on different styles of human rights education and training,
113. see F. Tibbits, 'Understanding What We Do: Emerging Models for Human Rights Education' (2002) 48(3) International Review of Education 159-71.
114. UN Secretary-General, op. cit., n. 1, at p. 17.
115. Christie, op. cit., n. 9.
116. See, for example, J. Häusermann, A Human Rights Approach To Development (1998);
117. P. Uvin, Human Rights and Development (2004);
118. P. Alston and M. Robinson (eds.), Human Rights and Development: Towards Mutual Reinforcement (2005);
119. P. Gready and J. Ensor, Reinventing Development?: Translating Rights-based Approaches from Theory into Practice (2005);
120. B. Andreassen and S. Marks (eds.), Development as a Human Right: Legal, Political, and Economic Dimensions (2007).
121. See, also, J. Cockayne, 'The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals' (2005) 28 Fordham International Law J. 616-80.
122. A. Sen, Development as Freedom (2001).
123. T. Howland, 'Mirage, Magic or Mixed Bag? The United Nations High Commissioner for Human Rights Field Operation in Rwanda' (1999) 21 Human Rights Q. 1-55.
124. See Renewing the United Nations: A Programme for Reform, UN Doc. A/51/950, July 1997.
125. World Bank, Human Rights and Development: The Role of the World Bank (1998), available at 〈http://www.worldbank.org/html/extdr/rights/ hrtext.pdf〉.
126. Department for International Development, Realising Human Rights for Poor People: Strategies for Achieving International Development Targets (2000).
127. See, for example, CARE International, A Rights Approach and Causal-Responsibility Analysis (updated March 2002);
128. Oxfam GB, Development and Rights (1998);
129. Save the Children, Child Rights Programming: Child Rights-Based Approach To Programmes Summary (2003).
130. See, for example, M. Picard, Measurement and Methodological Challenge to Care International's Rights Based Programming (2003), available at 〈http://www.enterprise-impact.org.uk/pdf/Picard.pdf〉.
131. R. Eyben, C. Ferguson, and L. Groves, 'How Can Donors Become More Accountable To Poor People?' in Inclusive Aid: Power and Relationships in International Development, eds. L. Groves and R. Hinton (2004).
132. See Institute of Development Studies, The Rise of Rights: Rights Based Approaches to International Development (2003).
133. See Uvin, op. cit., n. 84 for a review of this debate.
134. See, for example, M. Maren, The Road to Hell: The Ravaging Effects of Foreign Aid and International Charity (2002);
135. W. Easterly, The White Man's Burden: Why the West's Efforts to Aid the Rest Have Done So Much III and So Little Good (2002).
136. Ignatieff, op. cit., n. 74, at p. 98.
137. For example, the utilization by Oxfam of the 'right to be heard' or the frequent exhortation in some community and educational publications of the right of elders or teachers to 'respect' would undoubtedly make even the most relaxed of lawyers wince a little as they searched for a relevant international standard. See Institute of Development Studies, op. cit., n, 93.
138. See P. Alston (ed.), Non-State Actors and Human Rights (2005).
139. C. Nyamu-Musembi, Towards an actor-informed perspective on human rights IDS Working Paper 169 (2002).
140. B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (2004) especially ch. 7.
141. A. Cornwall and C. Nyamu-Musembi, 'Putting the "Rights-Based Approach" to Development into Perspective' (2004) 25 Third World Q. 1415-37.
142. K. McEvoy and A. Eriksson, 'Restorative Justice in Transition: Ownership, Leadership and "Bottom Up" Human Rights' in Handbook of Restorative Justice, eds. D. Sullivan and L. Tift (2006).
143. J. Braithwaite, 'Setting Standards for Restorative Justice' (2002) 42 Brit. J. of Crim. 563-77.
144. For example, protocols currently under consideration which are designed to regulate the relationship between these community programmes and the criminal justice system are insistent about involvement in the police and prosecution service 'in order to ensure that rights are protected'. The retort from some of the community programmes has been framed in terms of the 'rights' of victims to determine the level and nature of the involvement of state agencies in addressing their harms.
145. See K. McEvoy and A. Eriksson, 'Justice, Community and the State in Transition in Northern Ireland' in Justice, Community and Civil Society: A Contested Terrain, ed. J. Shapland (2007).
146. J. Habermas, The Theory of Communicative Action: Reason and the Rationalisation of Society (1981) 1, 8-15.
147. E. Posner and A. Vermeule, 'Transitional Justice as Ordinary Justice' (2003) 117 Harvard Law Rev. 761-825.
148. See, for example, S. Cohen, 'Crime and Politics: Spot the Difference' (1996) 47 Brit. J. of Sociology 1-21;
149. R. Jamieson, 'Genocide and the Social Production of Immorality' (1999) 3 Theoretical Crim. 131-46;
150. J. Hagan, W. Rymond-Richmond, and P. Parker, 'The Criminology of Genocide: The Death and Rape of Darfur' (2005) 43 Criminology 525-62.
151. See D. Bayley, Developing Democratic Policing Abroad (2006);
152. A. Snodgrass Godoy, Popular Injustice: Violence, Community, and Law in Latin America (2006);
153. A. Wardak, 'Building a Post-war Justice System in Afghanistan' (2004) 41 Crime, Law and Social Change 319-41;
154. K. McEvoy and T. Newburn (eds.), Criminology, Conflict Resolution and Restorative Justice (2003);
155. V. Ruggiero, 'Criminalizing War: Criminology as Ceasefire' (2005) 14 Social & Legal Studies 239-57.
156. See, especially, I. Loader and N. Walker, Civilizing Security (2007).
157. D. Garland and R. Sparks, 'Criminology, Social Theory and the Challenge of Our Times' in Criminology and Social Theory, eds. D. Garland and R. Sparks (2000) 5.
158. N. Rose, 'Government and Control' in Garland and Sparks, id., at p. 186.
159. See, for example, J. Sheptycki, Issues in Transnational Policing (2000);
160. C. O'Reilly and G. Ellison, 'Eye Spy Private High': Re-Conceptualizing High Policing Theory' (2006) 46 Brit. J of Crim. 641-60.
161. See, for example, C. Logan, Private Prisons: Pros and Cons (1990); I. Loader, 'Thinking Normatively About Private Security' (1997) 24 J. of Law and Society 377-94;
162. G. Lahav, 'Immigration and the State: The Devolution and Privatisation of Immigration Control in the EU' (1998) 24 J. of Ethnic and Migration Studies 675-94.
163. See, for example, A. Crawford, The Local Governance of Crime: Appeals to Community and Partnership (1999);
164. G. Bazemore and M. Schiff, Restorative Community Justice: Repairing Harm and Transforming Communities (2001);
165. G. Hughes, The Politics of Crime and Community (2006).
166. There is an interesting parallel here with the symbolic importance of the police and other justice functions in the historical forging of a 'national identity' of the a number of European nations in the nineteenth century. See, for example, C. Elmsley, Gendarmes and the State in Nineteenth-Century Europe (2000).
167. B. Baker, 'Living With Non-State Policing in South Africa: The Issues and Dilemmas' (2002) 40 J. of Modern African Studies 29-54;
168. R. Jamieson and K. McEvoy, 'State Crime by Proxy and Juridical Othering' (2005) 45 Brit. J. of Crim. 504-27.
169. See Roche, op. cit., n. 68.
170. For measured reviews of some of these criticisms, see E. Daly, 'Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda' (2002) 34 New York University J. of International Law and Politics 355-96;
171. M. Drumbl, 'Restorative Justice and Collective Responsibility: Lessons For and From the Rwandan Genocide' (2002) 5 Contemporary Justice Rev. 5-22;
172. W. Schabas, 'Genocide Trials and Gacaca Courts' (2005) 3 J. of International Crim. Justice 879-95.
173. L. Waldorf, 'Rwanda's Failing Experiment in Restorative Justice' in Sullivan and Tift, op. cit., n. 102.
174. A. Goldsmith, 'Policing Weak States: Citizen Safety and State Responsibility' (2005) 13 Policing and Society 3-21.
175. See, for example, M. Cain, 'Beyond Informal Justice' (1985) 9 Contemporary Crises 335-73;
176. R. Matthews (ed.), Informal Justice (1988); McEvoy and Mika, op. cit., n. 7.
177. For classic accounts of the socio-legal scholarship in this field, see R. Abel (ed.), The Politics of Informal Justice (Vol. 1, The American Experience, Vol. 2, Comparative Studies) (1982) and S. Merry and N. Milner (eds.), The Possibility of Popular Justice (1993).
178. See R. Garside, Crime, Persistent Offenders and the Justice Gap (2004).
179. E. Solomon, C. Eades, R. Garside, and M. Rutherford, Ten Years of Criminal Justice Under Labour; An Independent Audit (2007) 10.
180. See, for example, S. Farrell, Rethinking What Works with Offenders: Probation, Social Context and Desistance from Crime (2004);
181. D. Bayley (ed.), What Works in Policing? (1998).
182. G. Johnstone, Restorative Justice: Ideas, Values, Debates (2002).
183. Brooks, op. cit., n. 5.
184. See L. Johnston and C. Shearing, Governing Security: Explorations of Policing and Justice (2002);
185. J. Wood and C. Shearing, Imagining Security (2007).
186. These questions will be more fully developed elsewhere. See McEvoy et al., op. cit., n. 10.
187. Roberts and McMillan, op. cit., n. 6; M. Drumbl, 'Toward a Criminology of International Crime' (2003) 19 Ohio State J. on Dispute Resolution 263-82.
188. See P. Akhavan, 'Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?' (2001) 95 Am. J. of International Law 7-31.
189. See J. Goodey, Victims and Victimology: Research, Policy and Practice (2005);
190. H. Strang, Repair or Revenge: Victims and Restorative Justice (2003);
191. B. Hamber, D. Nageng, and G. O'Malley, 'Telling it like it is ... Survivors' perceptions of the Truth and Reconciliation Commission' (2000) 26 Psychology in Society 18-42.
192. See S. Garkawe, 'The Victim Related Provisions of the Statute of the International Court: A Victimological Analysis' (2001) 8 International Rev. of Victimology 269-89;
193. B. Nowrojee, 'Your Justice is Too Slow': Will the ICTR Fail Rwanda's Rape Victims? (2005).
194. The phrase used in Article 1 of the Statute for the Special Court in Sierra Leone is that that the court has 'the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law', available at 〈http://www.sc-sl. org/scsl-statute.html〉.
195. Interestingly, the Rome Statute which governs the International Criminal Court has virtually nothing to say about the purpose of sentencing other than the rather vague formulation in the preamble that the ending of impunity for serious international crimes will 'contribute to the prevention of such crimes'. As Schabas points out, it suggests that the question about purpose is so obvious 'as to require no comment or direction.' W. Schabas, An Introduction to the International Criminal Court (2004) 163.
196. For example, the review of the deterrence literature conducted by Von Hirsh et al. concluded that 'the studies reviewed did not provide any basis for inferring that increased severity of sentence had any deterrent effect' and was inconclusive as to whether certainty of punishment was any more effective. A. Von Hirsch, A. Bottoms, E. Burney, and P.O. Wiklstrom, Criminal Deterrence and Sentence Severity (1999).
197. Roche, op. cit., n. 69.
198. As Luban has argued, 'getting people to murder and torment their neighbours is not hard; in some ways, it turns out to be ridiculously easy.' D. Luban, 'Interventions and Civilization: Some Unhappy Lessons of the Kosovo War' in Global Justice and Transnational Politics, eds. P. De Greiff and C. Cronin (2002) 107.
199. H. Steinert, 'Fin De Siècle Criminology' (1997) 1 Theoretical Criminology 111-29.
200. id., p. 306
201. See G. O'Donnell, 'Why the Rule of Law Matters' (2004) 15(4) J. of Democracy 32-46.
202. See, for example, A. Cassesse, International Criminal Law (2002)
203. and W. Schabas, The UN International Criminal Tribunals: The Former Yugoslava, Rwanda and Sierra Leone (2006).
204. L. Mallinder, 'Can Amnesties and International Justice be Reconciled?' (2007) 1 International J. of Transitional Justice 208-30.
205. See R. Mani, Beyond Retribution: Seeking Justice in the Shadow of War (2002).