Abstract
This is an important book that makes a significant contribution to the development of transitional justice theory and its application to established democracies, a context that has traditionally not been included in the mainstream discourse and practice of transitional justice – what the author refers to as ‘paradigmatic forms of transitional justice’ (p. 119). The book raises fundamental questions about the assumptions underlying transitional justice theory arising from an analysis of diverse cases associated with state redress in the form of administrative, corrective and restorative justice.
In the first chapter, Winter makes a convincing case for analysing these cases of state redress in established democracies as taking place in the ‘context of the transition between regimes of legitimation’ (p. 4), and thus fitting within the broader field of transitional justice. He then goes on in the following four chapters to elaborate his political theory of legitimation and redress, claiming that ‘if injury creates corrective rights and political legitimacy requires respect for rights, then unredressed injuries make the state less legitimate simply because valid demands for redress are not met’ (p. 106).
Winter’s chapter on ‘transitional justices’ is potentially fascinating because he makes explicit the observation that the transitional justice field consists of many different kinds of justice, and analyses the meanings of some of these different types of justice. However, ultimately, I found this chapter frustrating because of what seemed like an artificial limitation on the discussion arising from Winter’s particular case-study approach. Unpacking the five types of justice originally proposed by Ruti Teitel in her seminal work Transitional Justice (2000), Winter goes on to eliminate two of them as being irrelevant to state redress, and repackages the remaining three in a way that suits a neat analysis of his three cases. By focusing on satisfying the needs of a descriptive analysis of state redress, he dismisses Teitel’s category of punitive justice despite its potential relevance to so-called ‘established democracies’, for example, where individuals have been found guilty of child sexual abuse. He re-categorises reparatory justice as corrective justice, as discussed later, and he rejects constitutional justice as a category for analysis because it has not happened in practice, while ignoring the calls for such constitutional redress by Australia’s indigenous peoples – an example that could otherwise have fitted into Winter’s study of state redress in established democracies.
The result is a failure in the transitional justice chapter and following case-study chapters to consider the interconnections between these different types of justice in theory and the complexities, contradictions and potential complementarities in practice. To be fair, the author does discuss these interconnections in the concluding chapter and points out that none of the three types of justice should be considered as sufficient in isolation. According to Winter, restorative justice is distinctive because it alone responds to the expressed needs of victims/survivors, while administrative and corrective justice are both concerned with redressing rights. All three cases presented in the book are limiting because they include only instances of state wrongdoing and where the individual has a relationship with the state, thereby excluding from discussion instances of non-state wrongdoing and justice provided at the community/non-state level. But then that is precisely Winter’s purpose: to focus on state wrongdoing and instances of state redress.
Winter identifies three cases of state redress that he describes in detail in each of the next three chapters: administrative justice for Canada’s Hong Kong veterans; corrective justice for Japanese Americans; and restorative justice in the context of Australian care leavers. These are interesting choices that tap into very specific injustices for which state redress was sought in different ways, and the conclusions are clearly relevant to the transitional justice field more generally, despite the limitations identified earlier and by Winter himself in the concluding chapter of the book.
In the first case, Canadian veterans who served in Hong Kong during the Second World War were seeking redress for their treatment as Japanese prisoners of war, and for the lack of acknowledgement and equal treatment when it came to the provision of pensions for injured war veterans. According to Winter’s analysis, what the veterans received in the end was not justice or redress for the suffering they experienced as service personnel, but, rather, administrative redress through a gradual reduction in discriminatory practices that recognised the veterans as ‘wronged care recipients’ (p. 152). This case is significant because it highlights how a civil rights discourse was reflected in the concern for equal recognition and the remedy of administrative justice but, as Winter notes, there was a lack of focus on healing and reconciliation.
In the second case, Winter identifies the limitations of corrective justice. He analyses the Civil Liberties Act in the US as a significant redress programme, illustrating corrective justice for the Japanese Americans who were treated as enemies of the state and wrongfully excluded, removed and detained in the interests of wartime security in the latter half of the Second World War. Winter draws on John Locke, who maintained that ‘he who hath received any damage’ has a right to reparation as well as punishment to ‘make satisfaction for the harm he has suffered’ (p. 154). But why ‘corrective justice’ and not ‘reparatory justice’, the term used by Teitel to include claims for reparation, restitution or compensation? Winter argues that ‘corrective justice’ is a more appropriate term as it ‘encompasses any claim for damages the ground for which is past wrongdoing by an agent’ (p. 124, emphasis in the original), which could include claims for apology or other symbolic redress, rather than being limited to claims for material redress, as implied by Teitel’s definition. However, I found the use of the term ‘corrective justice’ to be unnecessarily confusing from a transitional justice perspective, and especially considering the significance of the reparations eventually provided to Japanese Americans. The right to reparation, as elucidated in the Joinet principles and the four key pillars of transitional justice defined by the United Nations, includes symbolic reparations such as memorialisation and apologies, thus fulfilling the function ascribed by Winter to corrective justice.
Winter’s conclusion is still valuable, however, in that he identifies ‘the corrective limits to state redress’, which fails to ‘provide the institutional base for a long-term critical engagement of and with political power’ (p. 180). The legitimacy of the state is enhanced, according to Winter, by corrective justice for previously unmet redress demands, but may be limited by its targeting of ‘specific material interests’ for a ‘particular class of individuals’ who were wronged ‘in particular ways by particular acts of states’ (p. 181). The same criticism can be made of certain aspects of paradigmatic transitional justice, including especially reparative and punitive justice for particular crimes and/or against certain individuals that may fail to address the cumulative and more widespread socio-economic wrongs perpetrated by the state against a group, such as in apartheid South Africa and the settler countries of Australia and Canada in relation to their indigenous populations.
In the third case, Winter highlights the healing and restorative justice aspects of the Australian response to care leavers over and above the administrative and corrective justice responses. The wrongdoing of the Australian government is described by Winter as the failure to take adequate care of child migrants who arrived in Australia as a result of the enforced expatriation of British children to the colonies, along with the half a million other Australian children who experienced some kind of ‘out of home care’ because they were orphans or were taken from parents who were ‘unwed, widowed, indigenous, jobless, destitute, drunkards or criminals’ (p. 184). His account summarises the systemic state wrongdoing in the Australian care system, and analyses the restorative aspects of subsequent state redress, as reflected in the public enquiries, monetary payments, focus on well-being, identity restoration, apologies, museums and memorials. He observes that the state response has focused more on the needs of the survivors rather than their right to state redress, and although some of these measures have involved administrative and corrective justice, Winter argues that the element of participation has been particularly important in providing an overriding sense of restorative justice for care leavers in Australia. While he does admit that the well-being aspects, such as the provision of counselling and enhanced educational, employment, health and welfare support, may be more aspirational rhetoric than realised in practice, his conclusion is that ‘state redress enacts legitimating reasons when it aims to improve the well-being of survivors’(p. 182). Furthermore, he claims that the ‘broader, more holistic approach of restorative justice’ (p. 182) for care leavers in Australia has reinforced the understanding that redress is a process, and that ‘transitional justice is better understood as a journey, and not as a destination’ (p. 208).
However, why should restorative justice be seen as ‘demanding but irreplaceable’ (p. 209) only in the case of Australian care leavers? Why not for the Hong Kong veterans who suffered so horrendously in Japanese prisoner-of-war camps? Why not for the Japanese Americans who were detained during the Second World War? Winter identifies physical and/or sexual abuse as a component of the wrongdoing that is the direct object of state redress in the case of the Australian care leavers, but not for the Canadians who were prisoners of war in Hong Kong. This apparent anomaly is attributable to the author’s focus on a descriptive account of state redress schemes, rather than on the needs of the survivors in all three cases. Yet, in the Australian case, the focus on the needs of survivors leads the author to go beyond a descriptive account to a more critical and aspirational view of the potential for state redress, and thus for transitional justice. This makes the last case study more rewarding as it begins to grapple with the complexities and challenges inherent in the wider transitional justice context.
The main strength and value of this book is its original development and application of political theory to some lesser-studied aspects of transitional justice that serve to illuminate some of the key issues and dynamics of the broader field. I recommend it to transitional justice scholars as an essential stepping stone in the quest to further define and understand what we mean by transitional justice, and why, when, where and how it is implemented. I agree with Winter that his approach provides a challenge to transitional justice theorists to which we should respond. It also highlights some of the potential weaknesses in transitional justice practice, which fails to engage more holistically with restorative, reparative/corrective and administrative justice in addition to the dominant paradigm of punitive justice.