Introduction: Ways of Knowing Atrocity: A Methodological Enquiry into the Formulation, Implementation, and Assessment of Transitional Justice

Transitional justice comprises a broad set of responses to violence committed during periods of conflict, repressive rule, or occupation.¹ Over the last thirty years, criminal trials, truth commissions, memorialization projects, and restorative justice processes have been implemented with increasing frequency across the globe, creating a rapidly expanding area of human rights practice. Within this domain, international criminal trials have emerged as the predominant approach, described in recent scholarship as “a key component—perhaps the most powerful component—in the broader universe of transitional justice.”²

Coinciding with this well-documented resort to law, there is a critical turn in the scholarship as transitional justice processes come under growing scrutiny.³ Scholars criticize criminal trials and truth commissions as initiatives that further the reproduction or, according to some, the imposition of Western norms, leading to observations of cultural miscommunication or imperialism.⁴ Driven by a similar impetus, challenges are raised against the evidentiary foundations of both criminal convictions and truth commission reports.⁵ This special issue proposes that some of these current tensions are a result of clashes over the means through which lawyers, scholars, and local populations make sense of both the experience of violence, or more broadly construed harm, and the response to these harms. If such clashes over these different ways of knowing⁶ atrocity are central to understanding the contours of the debates and disagreements over transitional justice, then it follows that a focus on the methods used to design, implement, and assess these processes provides one avenue for exchange across and within these current epistemic divides.

Bringing together scholars and practitioners in politics, law, literature, statistics, anthropology, history, and development studies, this special issue focuses on the processes used to respond to atrocity starting with how we know about the nature of harm, and following this, what methods are used to both respond to these abuses and evaluate these responses. This collection maps the forms through which knowledge on atrocity is conveyed and simultaneously explores how the form influences its content. Some authors, including Antjie Krog, Briony Jones, and Simon Robins and Erik Wilson, undertake an explicit epistemic analysis, while others including Megan Price and Patrick Ball, Bert Ingeleare, Nathalie Nguyen, and Hirad Abtahi detail their methods and, in doing so, offer the reader an opportunity to assess the process of knowledge developed within the confines of particular disciplines.

Work on criminal justice in a domestic setting has long argued for interpreting criminal law as a social practice to which philosophy, history, law, and the social sciences can be “viewed as making complementary contributions to the general project of social theory.”⁷ Such writings highlight the need to focus on processes that lead to the criminalisation of particular conduct, from “articulation of offences through investigation, diversion, prosecution, trial…and the execution of punishment.”⁸

Crucial to this collection is the recognition that the knowledge employed at each of these stages of a transitional justice process is necessarily incomplete. As Mariana Valverde writes in the domestic context, legal decisions “have to be taken without full knowledge.”⁹ In the context of political violence, investigations of human rights abuse are carried out and evidence is presented; but the investigations occur in cross-cultural contexts, in multiple languages, and under domestic and international pressures. The evidence is ambiguous or insufficient and the reasoning used to generate a decision is in an area of rapidly developing case law. This suggests that challenges for knowledge generation on atrocity are similar to, but perhaps even more pronounced than, those that arise when responding to everyday violence.

Richard Wilson highlights some of the specific challenges to the production of knowledge on international crimes. In his recent work on the role of history in international criminal trials, he argues that within international courts, historical knowledge of the conflict is shaped by the legal actors’ strategies and motivations, as they draw out particular accounts of the past.¹⁰ Lawyers use history, developed through eyewitness testimony and corroborating documentary evidence, to pursue...