Symposium on Reframing Transitional Justice: Why Boundaries Matter

[Ligeia Quackelbeen is an Assistant Professor of (European and international) criminal law at Tilburg University and Principal Investigator of the project, Conversations with Judges (2023-2028).]

This summer, when I was invited to author a commentary on the provocative volume Reframing Transitional Justice, edited by Mark A. Drumbl and Kirsten J. Fisher, I found myself immersed in another book. Such are often the pleasures of the summer holiday for an academic: to finally have the time to read beautiful works of fiction which unexpectedly make you think differently about certain theoretical issues. This was also the case this summer, in which my thinking about this interesting volume on Transitional Justice was very much coloured by one particular work of fiction.

The novel was Ursula K. Le Guin’s The Dispossessed (1974), her celebrated “ambiguous utopia”. It follows Dr. Shevek, a brilliant physicist whose scientific discoveries place him between two radically different political worlds. Raised on the anarchist moon of Anarres, his work on the so-called principle of simultaneity is initially met with little enthusiasm in his own society, where constraints on intellectual innovation and the appropriation of scientific ideas is justified  by the needs of the collective and individual talent is subdued under what is, de facto, communist doctrine. In order to complete and share his theory, Shevek eventually travels to its capitalist counterpart, Urras, where his work is welcomed and celebrated, but also quickly appropriated for political and economic ends. The novel shows how two different ways of organising not only politics but also science operate: on Anarres, science is hemmed in by concerns for the collective and has to serve that collective, while on Urras individual talent is promoted and the scientific findings that result from it are lauded, but science is also appropriated for ulterior political and economic ends. What emerges throughout the novel is the unsettling question about what science is for, and who ultimately benefits from its production. Science is not a neutral space vis-à-vis politics. The story shows beautifully how positionality matters. It invites not only scientists, but also lawyers and legal scholars, to reflect on the position from which they speak and on the politics of their own scholarship. 

To me, the edited volume Reframing Transitional Justice seeks to travel in that same space. It wonders about the opportunities that arise from pushing the boundaries of what transitional justice is and could do, while at the same time critically reflecting on what it means to exploit those opportunities and whether boundaries always need to be extended. It is an engaging volume in which authors, each in their own way, reflect in an honest and humble way about the politics of a field which indeed has been arrogant at times, but perhaps that is the risk that each scientific discipline faces. This introspective way of challenging the so-called “justice-industrial complex” (p. 197) – which to me echoes much of the subtle criticism of capitalism in The Dispossessed – is truly disarming and even if I do not agree with some of the propositions, the collection of contributions offers insights for every transitional Justice lawyer and scholar. 

As the editors explain, the first part of the volume explores innovations, whereas the second examines boundaries and the third section discusses refractions. What makes this book particularly appealing to me is the focus of the second section, which, as the editors themselves put it, “confronts the professed superpower of transitional justice to do more and more, in an endless concatenation of additives” (Introduction, p. 2). It is precisely this willingness, on the part of both the editors and authors, not merely to celebrate expansion, but to interrogate the boundaries of transitional justice, that drew me to this volume. As Mark Drumbl provocatively states:

Perhaps there is something here for international law and policy, and transitional justice best practices, to ponder. Can too much be made of the past? Perhaps certain somethings can be left alone, or just as is and as they are, and for new generations simply to move on by walking past. There may be limits to the rewriting of history. Transitional justice in practice seems to seek (crave, even?) to grow, expand, take on more and more […] and seems to see itself as self-assuredly indispensable. But maybe it is not necessary for transitional justice to take on more and more. Perhaps it is not always needed. Rupture and discontinuity are attractive, to be sure, but are they always beneficial? Or are there times when transitional justice interventions serve to fulfil a justice-industrial complex rather than actual victim- and community-centred goals and ends? Should transitional justice develop a plan for when it should bow out, sit down, and just stay put?

That passage immediately resonated with me, not only because it captures one of the central themes of this volume, but also because it echoes a question that has occupied much of my own research in international criminal law (ICL). In both my article on treaty interpretation under the Vienna Convention on the Law of Treaties (“Rethinking Treaty Interpretation and Crime Interpretation at the ICC,” International Criminal Law Review 26(2) (2026)) and my recent book, Judicial Discretion in the Interpretation of International Crimes: Revisiting the Legality Principle (Hart Publishing, 2026), I argue that ICL is first and foremost criminal law and that, because it governs the relationship between the individual and the state, it must be constrained by deontic principles. These constraints, such as the principle of legality, are not merely limitations on the exercise of criminal justice but are constitutive of the field itself and therefore ought to be embraced. At the same time, I argue that ICL has increasingly been infused by teleological and victim-centred reasoning – or, one might even say, by a broader transitional justice narrative – which risks obscuring its identity as criminal law and, ultimately, losing sight of what it is meant to do.

Whereas Transitional Justice does not have the same boundaries as ICL, and its constitution differs, it equally benefits from an ontological discussion of how boundaries shape it. This is also why I focus on the issue of boundaries and why I think the same questions deserve to be asked in relation to transitional justice. If its boundaries are continually redrawn to encompass every form of historical injustice, every category of victim, and every manifestation of harm, what remains distinctive about transitional justice as a field and can it still be constructive? At what point does expansion dilute the very project of transitional justice and becomes counterproductive? Several authors within this volume engage with these questions, even outside of section 2 and the fact that they do so is precisely what makes this volume so timely.

Opening the boundaries section, Rachel Killean invites us to rethink perhaps one of the most deeply embedded assumptions of transitional justice: its anthropocentric orientation. Her chapter asks what it would mean to extend the field to encompass non-human animals and, in doing so, exposes a gap in contemporary transitional justice scholarship. Killean’s is precisely the kind of intervention that demonstrates why debates on boundaries are intellectually productive. Yet, at the same time, it left me wondering what such fundamental reshaping of the boundaries of transitional justice to encompass non-human animals means for transitional justice as a field? And when does such an expansion begin to transform the very nature of what Transitional Justice is trying to do?

Lucas Lixinski’s contribution reveals that, whereas transitional justice usually intervenes “at the tail end of a period of widespread human rights violations or after their immediate cessation” (p. 162) and seeks to break away from the past, the return of cultural objects and heritage law must navigate a complex interplay of temporalities and often involves preserving a certain past for the sake of the future (p. 152). Here too, the connection with The Dispossessed came into play, as time and temporality play a major role in that story. Lixinski’s observation that debates on the return of cultural objects do not centre on justice and accountability in the same way as other strands of transitional justice is particularly intriguing (p. 160). Yet, again, I found myself wondering what this means for transitional justice when accountability recedes so far into the background. But perhaps in this context flexibility rather than legalistic rigour – or “legalistic overtones” (p. 160) – is indeed to be preferred.

One of the editors, Mark Drumbl, also turns to cultural property, but interestingly does not shy away from discussing “ugly” examples, namely, those considered ugly because they are associated with ugly political forces. Remarkably, when it comes to this type of cultural heritage, domestic debates often proceed from the assumption that “there can be no justice without toppling (erasing, scrubbing, etc.) the visualities of injustice” (p. 171). Italy appears to be an exception to this dynamic, presenting what Drumbl describes as a “nonchalant” and “integrationist” approach to fascist cultural property (p. 171). His contribution compellingly illustrates that a more restrained approach may, in some contexts, be more appropriate than bringing out the transitional justice “big guns.” In doing so, Drumbl perhaps poses the most fundamental question running through this volume: whether justice always requires intervention, or whether there are moments when restraint is itself the more appropriate response.

Similar concerns for restraint emerge in Timothy William Waters’ contribution on genocide. Waters reminds us that legal categories matter not simply because they allocate legal or moral responsibility, but because they shape how societies understand violence itself. In a particularly original move, however, he invites us to question the necessity of the category of genocide itself, arguing that it has become, to a considerable extent, redundant of other international crimes and that its continued centrality may obscure rather than illuminate our understanding of mass violence (pp. 201, 207).

Outside section 2, several authors touch upon the issue of boundaries in an illuminating way. Most strikingly, Espíndola’s contribution similarly prompted me to reflect on another form of expansion: the increasingly central place occupied by victims within transitional justice through so-called synthetic victims (p. 58). Of course, recognising victims has been one of the field’s greatest normative achievements. Yet, as Espíndola illustrates, victimhood is itself a constructed category which needs to be critically examined. From my own perspective in ICL, I could not help but recognise parallels with the growing tendency to justify doctrinal developments through victim-centred reasoning. Victims undoubtedly deserve a central place, but their increasing normative pull also raises questions about the boundaries of the field itself and the values that should continue to constrain it.

Returning to The Dispossessed, what fascinated me most about Le Guin’s novel was that, ultimately, the political game is never far away. There is no neutral space to which the scientist or lawyer can retreat. This is why it is always important to remain mindful of what we are doing, of boundaries, and of why these boundaries exist. While reading Reframing Transitional Justice I was repeatedly reminded that transitional justice scholars need to revisit this issue of boundaries time and time again. Expansion is intellectually exciting and often normatively attractive. Yet every expansion also invites us to ask what remains of the field once its boundaries have shifted. The greatest contribution of this volume is therefore perhaps not that it offers answers, but that it reopens the ontological question of what transitional justice is and, equally importantly, what it is not.

Photo attribution: Peter Yang on Unsplash