Rethinking Transitional Justice

The International Journal of Transitional Justice, Vol.
8, 2014, 194–216,
doi:10.1093/ijtj/iju004
Advance Access publication: 22 April 2014
Rethinking Transitional Justice,

Redressing Indigenous Harm: A New
Conceptual Approach
Jennifer Balint,* Julie Evansy and Nesam McMillan**
Abstract1
Transitional justice has become the dominant international framework for redressing
mass harm. To date, however, transitional justice has not adequately accounted for past
colonial harms and their ongoing effects. How to confront and redress structural harm
has been beyond the purview of its framework. Taking ongoing historical and structural
harms against indigenous peoples in Australia as a reference point, we draw on the
insights of settler colonial theory to propose a new justice model for transitional justice.
We argue that a commitment to structural justice will enhance the ability of transitional
justice to recognize and address structural injustice in settler colonial and other contexts.
By elaborating the concept of structural justice with reference to postcolonial and settler
colonial theory, this article sets out to support the development of a more robust theory
of transitional justice.
Keywords: settler colonialism, postcolonialism, structural injustice, structural justice,
Australia
Introduction
The colonial injustices experienced in settler colonial states have generally re-
mained beyond the purview of transitional justice. Reflecting a broader trend
of conceptualizing the West as the locus and agent of justice and human rights
* Lecturer in Socio-Legal Studies, School of Social and Political Sciences, University of Melbourne,
Australia. Email: jbalint@unimelb.edu.au
y
Senior Lecturer in Criminology, School of Social and Political Sciences, University of Melbourne,
Australia. Email: j.evans@unimelb.edu.au
** Lecturer in Global Criminology, School of Social and Political Sciences, University of Melbourne,
Australia. Email: nesamcm@unimelb.edu.au
1
The authors would like to thank Maria Rae for her invaluable research assistance and the IJTJ
editorial board and anonymous reviewers for their engaged and thoughtful comments that greatly
enriched this article. The article is part of a broader collaborative Australian Research Council
Linkage Project LP110200054 between indigenous and non-indigenous researchers, education
experts, performance artists, community members and government and community organiza-
tions to promote new modes of publicly engaging with historical and structural injustice through
research, education and performance. See, Minutes of Evidence Project, http://minutesofevidence.
com.
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on 13 June 2018
Rethinking Transitional Justice, Redressing Indigenous Harm 195
that needs to respond to the conflict and abuses occurring in non-western states,2
transitional justice has not – until recently – been used as a framework to consider
the injustices that have occurred in western, liberal democratic countries. Liberal
democratic societies have been positioned as the desired end points of transitional
justice, and transitional justice ‘has tended to ignore the extent to which liberal
democracies themselves might be considered in need of “postconflict” reconcili-
ation and restorative justice.’3 Indigenous individuals and collectivities have of
course been active, throughout time, in drawing attention to the injustices arising
from colonialism.4 While their activism has produced groundbreaking commit-
ments in international human rights law through the UN Declaration on the
Rights of Indigenous Peoples and the UN Permanent Forum on Indigenous
Issues, the extensive and enduring harms caused by settler colonial practices
and policies in countries such as Australia, New Zealand, Canada and the US
have not constituted the traditional focus of transitional justice discourse and
practice.5 Instead, western countries continue to appear as the actors that can best
support transitional justice processes in postconflict countries such as East Timor,
Rwanda and Libya, rather than the subjects of transitional justice that might need
to reckon with their own problematic pasts.
In recent times, however, a greater interest has emerged in connecting transi-
tional justice and the historical experiences of indigenous peoples in settler co-
lonial states. Arguably, this is attributable, in part, to the recent use in such states
of political-legal processes that could be deemed transitional justice mechanisms,
including truth commissions, reparations, apologies and prosecutions.6 Centred
around goals such as acknowledgement and reconciliation, in the case of the
former, and accountability, in the case of prosecutions, these initiatives have
been positioned by governments – implicitly, rather than explicitly – in line
with transitional justice rhetoric, as ways of addressing the injustices of the past
in order to provide the conditions for a more just future. They include initiatives
such as the Truth and Reconciliation Commission of Canada (inquiring into the
system of residential schools for Aboriginal people that existed in Canada until
1996) and the Australian National Inquiry into the Separation of Aboriginal and
2
Makau W. Mutua, ‘Savages, Victims and Saviours: The Metaphor of Human Rights,’ Harvard
International Law Journal 42 (2001): 201–245; Anne Orford, Reading Humanitarian Intervention:
Human Rights and the Use of Force in International Law (Cambridge: Cambridge University Press,
2003).
3
Chris Cunneen, ‘State Crime, the Colonial Question and Indigenous Peoples,’ in Supranational
Criminology: Towards a Criminology of International Crimes, ed. Alette Smeulers and Roelof
Haveman (Antwerp: Intersentia, 2008), 159. See also, Anne Orford, ‘Commissioning the
Truth,’ Columbia Journal of Gender and Law 15(3) (2006): 851–883.
4
In the Australian case, see, John Maynard, Fight for Liberty and Freedom: The Origins of Australian
Aboriginal Activism (Canberra: Aboriginal Studies Press, 2007); Saliha Belmessous, ed., Native
Claims: Indigenous Law against Empire, 1500–1920 (Oxford: Oxford University Press, 2011).
5
A. Dirk Moses, ‘Official Apologies, Reconciliation and Settler Colonialism: Australian Indigenous
Alterity and Political Agency,’ Citizenship Studies 15(2) (2011): 145–159.
6
Courtney Jung, ‘Canada and the Legacy of the Indian Residential Schools: Transitional Justice for
Indigenous Peoples in a Nontransitional Society,’ in Identities in Transition: Challenges for
Transitional Justice, ed. Paige Arthur (Cambridge: Cambridge University Press, 2011).
International Journal of Transitional Justice, Vol. 8, 2014, 194–216

on 13 June 2018
196 J. Balint, J. Evans and N. McMillan
Torres Strait Islander Children from Their Families, the governmental apologies
delivered in Canada and Australia regarding certain policies in these nations’
colonial histories,7 the reparations funds established in select Australian jurisdic-
tions, such as Tasmania, for distinct colonial injustices8 and broader state recon-
ciliation initiatives such as the Australian Council for Aboriginal Reconciliation,
which was a key recommendation of the 1991 Royal Commission into Aboriginal
Deaths in Custody.9
These initiatives are mirrored by growing academic and practitioner interest in
the significance of transitional justice for addressing settler colonial harms.10 This
article draws and builds upon the resulting scholarship to open out onto a
broader consideration of what insights might stem from bringing the fields of
transitional justice and settler colonial theory into relation and, in particular, how
this may strengthen transitional justice in addressing structural injustice.
As a programme of political-legal initiatives in times of transition from state-
sanctioned harm with the capacity to design institutional reform processes that
hold legitimacy and maintain continuity while initiating change, transitional
justice has strengths that can be built upon. While it has conventionally been
located in moments of political change to enable and shape political transition
through legal measures,11 the flexibility and potentiality of transitional justice as a
broader justice model makes it an attractive approach for addressing the historical
injustices of settler colonialism that to date have not been addressed as harms. We
focus here on the structural nature of such harm that transitional justice, in its
limited temporal response, has not addressed.
In this article, we seek to revise conventional transitional justice approaches by
considering the injustices experienced by indigenous peoples in the settler colo-
nial state of Australia as a structural harm. We hope that this reconceptualization
7
Prime Minister of Canada’s Office, ‘Prime Minister Harper Offers Full Apology on Behalf of
Canadians for the Indian Residential Schools System,’ 11 June 2008, http://www.pm.gc.ca/eng/-
media.asp?category=2&featureId=6&pageId=46&id=2149 (accessed 24 February 2014); Human
Rights and Equal Opportunity Commission, Bringing Them Home: The ‘Stolen Children’ Report
(1997); Australian Government, ‘Apology to Australia’s Indigenous Peoples,’ 13 February 2008,
http://australia.gov.au/about-australia/our-country/our-people/apology-to-australias-indigen-
ous-peoples (accessed 24 February 2014).
8
Maria Rae, ‘Why Tasmania Adopted the International Norm of Reparations in Compensating the
Stolen Generations’ (MA thesis, University of Melbourne, 2011).
9
Indigenous Law Resources, ‘Royal Commission into Aboriginal Deaths in Custody,’ http://www.
austlii.edu.au/au/other/IndigLRes/rciadic/ (accessed 24 February 2014).
10
Jung, supra n 6; Michelle Bonner and Matt James, ‘The Three R’s of Seeking Transitional Justice:
Reparation, Responsibility and Reframing in Canada and Argentina,’ International Indigenous
Policy Journal 2(3) (2011): 1–29; Damien Short, Reconciliation and Colonial Power: Indigenous
Rights in Australia (Aldershot: Ashgate, 2008); Orford, supra n 3; International Center for
Transitional Justice, Truth and Memory: Strengthening Indigenous Rights through Truth
Commissions: A Practitioner’s Resource (2012). See also the recent conferences and symposia:
‘Strengthening Indigenous Rights through Truth Commissions’ (International Center for
Transitional Justice, New York, NY, July 2011); ‘Truth Commissions and Indigenous Peoples:
Lessons Learned, Future Challenges’ (UN Permanent Forum on Indigenous Issues, New York, NY,
15 May 2011); ‘Indigenous Rights and Transitional Justice’ (Australian National University,
Canberra, Australia 2011).
11
See, Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000).

on 13 June 2018
offers new possibilities for understanding structural injury and responding to the
historical injustices that exist in settler colonial states, including through opening
up to indigenous worldviews and jurisprudences rather than simply continuing to
privilege western frameworks (including ameliorative transitional justice
approaches).12 In so doing, we build on the work of other scholars who have
sought to extend transitional justice frameworks beyond their originary contexts
of application and to revise the concept of ‘justice’ (as transformative and dis-
tributive) in the context of transitional justice.13 We consider the strengths and
limitations of the conceptualization of transitional justice as a temporal response
brought about by political transition and the observation of transitional justice as
a use of law in enabling political change.14 By elaborating the concept of structural
justice with reference to settler colonial theory, this article sets out to support the
development of a more robust theory of transitional justice in relation to post-
conflict and postcolonial contexts more generally.
The article begins with a consideration of conceptual constraints within the
transitional justice framework that affect its ability to address structural injustices,
particularly those resulting from colonialism. We then discuss how settler colo-
nial theory may address some of these limitations. We consider the empirical
situation in Australia in order to explicate the complexity of structural injustice,
and draw on historical and theoretical analysis to identify the nature, scope and
purpose of the injustices visited upon indigenous peoples whose initial dispos-
session and continuing marginalization have helped constitute and maintain the
Australian state. We ultimately trace the conceptual contours of a revised tran-
sitional justice model that raises new possibilities for thinking about what a com-
mitment to justice, a new structural justice, may require.
12
On the importance of establishing lawful relations in settler societies, see, Christine Black, Shaun
McVeigh and Richard Johnstone, ‘Of the South,’ Griffith Law Review 16(2) (2007): 299–309, and
passim; Nin Tomas, ‘Maori Concepts and Practices of Rangatiratanga: “Sovereignty”?’ in
Sovereignty: Frontiers of Possibility, ed. Julie Evans, Ann Genovese, Alexander Reilly and Patrick
Wolfe (Honolulu, HI: University of Hawaii Press, 2013); Taiaiake Alfred, Wasáse: Indigenous
Pathways of Action and Freedom (Peterborough: Broadview, 2005).
13
Rama Mani, ‘Dilemmas of Expanding Transitional Justice, or Forging the Nexus between
Transitional Justice and Development,’ International Journal of Transitional Justice 2(3) (2008):
253–265; Lisa J. Laplante, ‘Transitional Justice and Peace Building: Diagnosing and Addressing the
Socioeconomic Roots of Violence through a Human Rights Framework,’ International Journal of
Transitional Justice 2(3) (2008): 331–355; Wendy Lambourne, ‘Transitional Justice and
Peacebuilding after Mass Violence,’ International Journal of Transitional Justice 3(1) (2009):
28–48; Ismael Muvingi, ‘Sitting on Powder Kegs: Socioeconomic Rights in Transitional
Societies,’ International Journal of Transitional Justice 3(2) (2009): 163–182; Zinaida Miller,
‘Effects of Invisibility: In Search of the “Economic” in Transitional Justice,’ International
Journal of Transitional Justice 2(3) (2008): 266–291.
14
See, in particular, Teitel, supra n 11; Luc Huyse, ‘Justice after Transition: On the Choices Successor
Elites Make in Dealing with the Past,’ Law and Social Inquiry 20(1) (1995): 51–78; Martha Minow,
Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, MA:
Beacon, 1998); Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with
Former Regimes: Country Studies, 3 vols. (Washington, DC: US Institute of Peace Press, 1995);
Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York:
Routledge, 2002).

on 13 June 2018
Transitional Justice and Structural Harm

Described by Rosemary Nagy as a ‘global project,’15 transitional justice now con-
stitutes a dominant international framework for conceptualizing and pursuing
redress for 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 through the study of the role of law in times of political transition,
prompted by the use of legal and quasijudicial responses to the end of military
rule in societies in South and Central America and the collapse of Communism in
Eastern and Central Europe.16 Ruti Teitel argues that law functions differently in
times of political upheaval: ‘In its ordinary social function, law provides order and
stability, but in extraordinary periods of political upheaval, law maintains order
even as it enables transformation.’17 This function of law in enabling transform-
ation has become the cornerstone of studies of transitional justice,18 and the
framework is now widely employed as an approach to the use of law and justice
in the immediate aftermath of mass harm.
As transitional justice has consolidated into an academic field and mode of
practical intervention, it has increasingly been subject to critical attention.
Commentators have illustrated the contradictory imperatives that characterize
transitional justice approaches19 and sought to broaden the field’s mandate and
scope beyond the provision of once-off justice measures focused largely on indi-
vidual accountability and the protection of civil and political rights. A prominent
critique, which is of particular significance to our consideration of the potential
relevance of transitional justice to settler colonial injustices, has focused on the
field’s inadequate attention to the deeper socioeconomic and structural causes
and consequences of conflict.20 Transitional justice has continued mostly to
operate in accordance with an individualistic legal framework without facilitating
a deep engagement with structural injustices and the types of interventions
needed to address them. As a temporal response to political transition, the field
has engaged little with broader long-term structural inequities and harms,
15
Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections,’ Third World
Quarterly 29(2) (2008): 275–289.
16
For a detailed account of the field’s emergence, see, Paige Arthur, ‘How “Transitions” Reshaped
Human Rights: A Conceptual History of Transitional Justice,’ Human Rights Quarterly 31(2)
(2009): 321–367; Bronwyn Leebaw, ‘The Irreconcilable Goals of Transitional Justice,’ Human
Rights Quarterly 30(1) (2008): 95–118.
17
Teitel, supra n 11 at 6.
18
See, ibid.; Kritz, supra n 14; Hayner, supra n 14; Huyse, supra n 14; Minow, supra n 14; Naomi
Roht-Arriaza and Javier Mariezcurrena, eds., Transitional Justice in the Twenty-First Century:
Beyond Truth versus Justice (Cambridge: Cambridge University Press, 2006); Chandra Lekha
Sriram, Confronting Past Human Rights Violations: Justice vs. Peace in Times of Transition (New
York: Frank Cass, 2004); Ramesh Thakur and Peter Macontent, eds., From Sovereign Impunity to
International Accountability: The Search for Justice in a World of States (Tokyo: UN University
Press, 2004); Tricia D. Olsen, Leigh A. Payne and Andrew G. Reiter, Transitional Justice in Balance:
Comparing Processes, Weighing Efficacy (Washington, DC: US Institute of Peace Press, 2010).
19
Leebaw, supra n 16.
20
Muvingi, supra n 13; Miller, supra n 13.

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particularly those that lie outside the conventional transitional justice model of
transition from an authoritarian to a democratic regime. Based on a liberal, in-
dividualistic model of accountability, traditionally pursued through criminal
prosecutions, transitional justice theories and initiatives have not foregrounded
– or often addressed – the structural and societal arrangements that enable or
facilitate human rights violations and other harms – what Ratna Kapur refers to as
‘the institutional arrangements and structures [that] may be deeply implicated in
the production of the violation or the harm in the first place.’21 Transitional
justice has emphasized seemingly ‘exceptional’ violations, rather than the more
routine and hence ‘invisible’ damage stemming from unjust societal arrange-
ments (that do exist in liberal democratic collectivities).22 While there have
been some transitional justice models that seek to address the broader systemic
causes of injustice, such as the Truth and Reconciliation Commission of South
Africa, the Truth and Reconciliation Commission of Peru and the Commission
for Historical Clarification of Guatemala, these have been isolated examples that
have functioned more to recognize the structural bases of contemporary injustice
than to provide the necessary means to effectively confront and redress them.23
While structural injustice may originally be caused by a specific enterprise or
experience (such as colonialism), it endures beyond the moment of violation,
shaping and constraining the conditions of life experienced by both the dominant
population and particular groups. Lia Kent has considered this in light of the
transitional justice mechanisms implemented by the UN in East Timor, illustrat-
ing the way in which they were inherently ill-equipped to address the legacies of
structural violence in that country, including, for example, poverty, poor health,
limited education and lack of economic opportunities for survivors.24 In
Australia, too, structural injustice is most clearly evident in the socioeconomic
gulf between indigenous and non-indigenous communities, and in particular in
the disproportionately high incarceration rate of indigenous men, women and
young people.25 As Rama Mani explicates, such broader social and structural
‘inequalities are not easily reduced to questions of individual responsibility and
accountability and hence are not adequately addressed through existing transi-
21
Ratna Kapur, ‘Normalizing Violence: Transitional Justice and the Gujarat Riots,’ Columbia
Journal of Gender and Law 15(3) (2006): 889. See also, Nagy, supra n 15; Paige Arthur,
‘Introduction: Identities in Transition,’ in Identities in Transition: Challenges for Transitional
Justice in Divided Societies, ed. Paige Arthur (Cambridge: Cambridge University Press, 2011).
22
Orford, supra n 3; Joanna R. Quinn, ‘Introductory Essay: Canada’s Own Brand of Truth and
Reconciliation?’ International Indigenous Policy Journal 2(3) (2011): 1–3; Kapur, supra n 21; Nagy,
supra n 15.
23
Jennifer Balint and Julie Evans, ‘Transitional Justice and Settler States’ (paper presented at the
Australian and New Zealand Critical Criminology Conference, Sydney, Australia, 1–2 July 2010).
24
Lia Kent, The Dynamics of Transitional Justice: International Models and Local Realities in East
Timor (London: Routledge, 2012).
25
Chris Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (Sydney: Allen
and Unwin, 2001).

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tional justice approaches.’26 Lisa Laplante, arguing that truth commissions should
be more focused on pursuing social justice through an emphasis on economic,
social and cultural rights, highlights the current preferencing of individualistic
civil and political rights.27 Indeed, Robert Meister regards this downplaying of
distributive justice questions as constitutive of the mode of justice offered
through transitional justice frameworks. Premised on a demarcation of individual
perpetrators (who are responsible for the wrongs of the past) and the broader
population of beneficiaries (who were not directly involved in any atrocities but
benefitted, and can continue to benefit, from the unjust societal arrangements
that enabled them), transitional justice functions to place issues of social and
distributive justice outside its scope.28
To some extent, this relative marginalization of structural issues can be ex-
plained with reference to various conceptual constraints that inform conventional
transitional justice paradigms. Paige Arthur demonstrates how some of assump-
tions that characterize transitional justice can be traced to the fact that the field
was developed in relation to a distinct set of historical circumstances.29
Empirically grounded in the social, political and historical conditions that
shaped the Latin American and Eastern European transitions to democracy and
the prevailing academic and practitioner approaches to conceptualizing them,
transitional justice is based on certain experiences of social and political reform
and certain understandings of what might constitute justice. This helps to explain,
for example, why transitional justice is structured around the pursuit of legal
accountability and institutional reform designed to establish the foundations for a
new, legitimate liberal democratic form of governance.30 Moreover, it explicates
why transitional justice is concerned with guaranteeing the broad enjoyment of
civil and political rights as the basis of such a democratic society,31 which, in turn,
leads to its comparative inattention to economic and social justice reforms.32
The ability of transitional justice successfully to account for structural injustice
and result in structural change is also arguably stymied by its reliance on a certain
temporal framework. Transitional justice is premised on the idea of a ‘point of
rupture,’ a specific point of change from violence and oppression to a ‘new
dawn.’33 The model assumes a moment of political change and upheaval, an
overt change of regime to democracy.34 This, in turn, leads to a certain under-
standing of the past, the present and the future as discrete and sequential. As such,
26
Mani, supra n 13.
27
Laplante, supra n 13.
28
Robert Meister, After Evil: A Politics of Human Rights (New York: Columbia University Press,
2011).
29
Arthur, supra n 16.
30
Ibid.
31
Arthur, supra n 21.
32
Arthur, supra n 16.
33
Nagy, supra n 15; Miller, supra n 13.
34
The key theorist is Teitel, supra n 11, who outlined the role of legal processes in political transition.

on 13 June 2018
transitional justice assumes a linear notion of time as progress,35 in which the past
and the future are seen as separable and successive, instead of intertwined and
co-implicated. This makes it difficult for transitional justice adequately to
acknowledge, and hence redress, the enduring structural arrangements that
may have resulted in past as well as present injustice and the ongoing effects of
past inequities on present and future generations.
Moreover, when viewed within the broader context of modern European ex-
pansion, which had such dramatic consequences for precolonial societies, tran-
sitional justice seems relatively presentist in its concerns. With mandates for truth
commissions and trials that cover quite short time frames, the complex impacts of
colonial pasts are effectively elided. Instead, transitional justice predominantly
engages with contemporary episodes of injustice and their recent histories.
Accordingly, transitional justice processes in East Timor focused on the harms
perpetrated by Indonesians following their invasion in 1975 – their mandates did
not stretch to those of the colonial Portuguese period. As Kent shows, however, it
was during the colonial period that land was taken, which shaped later structural
injustice.36 Similarly, the transitional justice process in South Africa focused on
harms perpetrated after the rise to power of the National Party in 1948, yet did not
examine the complex history of Dutch and British colonial exploitation that
established the initial lines of separation. Meanwhile, in Rwanda, despite recog-
nition that a Belgian colonial past contributed to the genocide in 1994, this past
did not feature in legal processes either nationally or internationally. The field’s
failure to appreciate the global and local historical causes of current injustices
constitutes an effective blindness to the role of European colonialism in perpe-
trating, facilitating or perpetuating mass harm. Such Eurocentrism complicates
the potential of transitional justice to address more comprehensively the kinds of
mass harms suffered by recognized ‘postconflict’ populations as well as by indi-
genous peoples in settler societies.
The capacity of transitional justice to address structural injustice is hampered
by a further conceptual constraint, namely its focus on strengthening, rather than
challenging, the state.37 Given its historical foundations and its current associ-
ation with broader rule of law reform programmes, transitional justice is oriented
towards laying the foundations for a legitimized, or relegitimized, democratic
nation-state. In its positive conceptions, this involves using transitional justice
to establish both a reformed government infrastructure (that gains authority from
its willingness to acknowledge the injustice of and depart from previous state
practice) and a reconstituted social body (that is committed to learning from past
35
Claire Moon, Narrating Political Reconciliation: South Africa’s Truth and Reconciliation
Commission (Lantham: Lexington Books, 2008).
36
Kent, supra n 24.
37
For the characterization of transitional justice as a state-building enterprise, see, Christine Bell,
‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-Field,”’ International
Journal of Transitional Justice 3(1) (2009): 5–27; Richard A. Wilson, The Politics of Truth and
Reconciliation in South Africa: Legitimizing the Post-Apartheid State (New York: Cambridge
University Press, 2001).

on 13 June 2018
inequities and ensuring they do not happen again). In its negative conceptions,
however, such state building involves the appropriation of the event and testi-
monies of the suffering of victims as an opportunity to pursue broader govern-
mental and societal goals.38 In order to establish a reconstituted national polity,
based on the acknowledgement of the past as a basis for ‘moving forward’ into the
future, victims are asked to testify to injustice but also to leave it in the past,
relinquishing, as Meister suggests, any claim to more substantive redress than they
may be provided.39 In this way, transitional justice processes can be utilized as a
form of governance and nation building, rather than of justice for victims.
The failure of existing transitional justice approaches to provide substantive
redress for structural injustices, coupled with their inattention to the legacies of
past harms and their invocation as a tool of nation building, significantly com-
promises their utility as a mode of addressing the harms arising from colonialism,
including harms experienced in setter states such as Australia. In order to con-
tribute to building a more robust transitional justice framework, the following
section considers how settler colonial theory and practice can help explicate the
concept of structural justice and thus enable a revision of conventional transi-
tional justice approaches.
Recognizing Structural Injustice: Settler Colonial

Theory
The enduring effects of global practices of colonialism are now widely acknowl-
edged. Disrupting the assumption that colonization ended with the formal ces-
sation of colonial governance, postcolonial theorists have highlighted the
resilience of colonial forms of knowledge and structural arrangements, which
continue to define global and national relations and shape the life experiences
and aspirations of the groups and individuals they encompass.40 The notion of the
present as a postcolonial time has been abandoned in favour of an acknowledge-
ment of the intertwined and contiguous nature of the past, present and future in a
postcolonial world.
Settler colonial theory both calls upon and revises the generalizations of post-
colonial theory to account for the distinctive nature and ongoing impact of co-
lonialism in settler states where there was never even a formal withdrawal of
colonial administrators. Here, the continuity between the past and the present
is more literal: with a lack of any transition to a decolonized state, settler states
38
Orford, supra n 3.
39
Meister, supra n 28.
40
From a vast literature, see, Edward Said, Orientalism (New York: Pantheon Books, 1978); Samir
Amin, Eurocentrism (New York: Monthly Review Press, 1989); Robert Young, White Mythologies:
Writing History and the West (New York: Routledge, 1990). For critical review and analysis, see,
Patrick Wolfe, ‘History and Imperialism: A Century of Theory, from Marx to Postcolonialism,’
review essay, American Historical Review 102(2) (1997): 388–420; Dane Kennedy, ‘Imperial
History and Post-Colonial Theory,’ Journal of Imperial and Commonwealth History 24(3)
(1996): 345–363; Ella Shohat, ‘Notes on the “Postcolonial,”’ Social Text 31/32 (1992): 103–106.

on 13 June 2018
effectively remain colonial formations. Moreover, settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in
settler societies where the colonizer never leaves and where economic interest lies
in securing permanent sovereignty in the land.41 Such an analysis points to the
structural nature of settler colonial harms whereby the violence of the original
dispossession of indigenous peoples – together with their subsequent subordin-
ation to colonial interests – helps to constitute settler sovereignty, producing a
polity that seeks continually to fortify its legitimacy by marginalizing indigenous
claims.
Settler colonial theory complicates the quest to draw clear distinctions between
past and present, while also explaining the significance of long-term, structural
injustice and the need for structural reform. At a broad conceptual level, settler
colonial theory thereby addresses some of the key criticisms leveled at transitional
justice by creating new possibilities for recognizing and responding to the con-
temporary reverberations of historically instituted harms. Moreover, in associ-
ation with related theoretical approaches, it can contribute in more specific ways
to developing a fuller understanding of historically based structural injustices.
In the first instance, settler colonial theory is interested in the operations of
sovereignty as a concept whose capacity to transcend its social origins supports its
apparent neutrality as a key organizing principle of western political and legal
theory and practice. The insights of postcolonial and critical historico-legal scho-
lars have informed this strand of settler colonial scholarship through identifying
the correlation between the emergence of sovereignty discourse and modern
Europe’s quest for expansion to the so-called New World.42 Throughout this
period, theologians and jurists strove to rationalize the violence and discrimin-
ation that characterized Europe’s imperial incursions against its self-representa-
tion as uniquely endowed with universal, civilized and Christian values.43
Through tracing the genealogy of what we now know as international law, this
interdisciplinary work has identified the discrimination that inheres in the notion
and practice of sovereignty, which was made particularly manifest in the ‘doctrine
of discovery.’ In seeking to adjudicate European rivalries in relation to the lands of
others, this legal precept was gradually consolidated starting in the 16th century
and remained consistent in its understanding of who would qualify as sovereign.
Whichever European colonizer claimed first discovery would be accorded do-
minion, but no matter which indigenous peoples were colonized they would
never be accorded more than the right of occupation. In constructing
Europeans as bearers of so-called universal rights and values, sovereignty
41
Patrick Wolfe, ‘Nation and MiscegeNation: Discursive Continuity in the Post-Mabo Era,’ Social
Analysis 36 (1994): 93–152; Lorenzo Veracini, Settler Colonialism: A Theoretical Overview
(Basingstoke: Palgrave Macmillan, 2010).
42
Robert A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest
(New York: Oxford University Press, 1992); Anthony Anghie, Imperialism, Sovereignty and the
Making of International Law (Cambridge: Cambridge University Press, 2005).
43
Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France (New
Haven, CT: Yale University Press, 1995).

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discourse accordingly withheld its attributes from those it deemed to deviate from
these norms. For centuries, indigenous peoples have been caught up in sover-
eignty’s normative thrall, which has accommodated a number of disqualifying
characteristics, ranging from different religious and/or cultural practices to inad-
equate modes of land use.44
In demonstrating the responsiveness of sovereignty discourse to European ex-
pansion from 1492 (as well as to events internal to Europe post-Westphalia more
than a century later), this scholarship highlights the ideological (and, of course,
legal) force of sovereignty’s seeming neutrality in the present. The approach helps
explain sovereignty’s fortress status both in domestic law and as the basis for
membership in the international order. The question of the colonial history of
sovereignty discourse therefore goes to the heart of considerations about struc-
tural injustice – the subordination of indigenous peoples and cultures through the
process of European expansion is embodied in the very concept that underpins
both nation-states and the international order they constitute.45 Consequently,
identifying the interests that have informed sovereignty discourse points to the
importance of recognizing the limits to reforms that continue to be conceived and
shaped within western worldviews and jurisprudences alone.
In the second instance, critical historico-legal approaches to settler colonial
theory highlight the constitutive violence of law, particularly during the so-
called frontier period in settler colonies. In the case of Australia, the expansion
of settlement was commonly accompanied by settler calls to make certain repres-
sive laws apply to Aboriginal people alone. Ranging from exemplary executions to
the refusal of testimony, summary justice provisions and racialized legislation
designed to break up families and communities, through to the extremes of
martial law in times of apparent crisis, such suspensions of the rule of law contra-
dicted British claims to peaceful settlement. In facilitating dispossession in the
face of indigenous peoples’ resistance, the resort to exceptional procedures in
domestic law also helped secure the territorial basis for sovereignty: indigenous
peoples’ resistance had shown that the discursive claims of international law over
who should or should not be sovereign were far from self-evident on the
ground.46
In addition, settler colonial theory underscores the specific structural features of
settler colonialism. As noted above, the recent theorization of the uniqueness of
the historical experiences of indigenous peoples in settler societies and, therefore,
of the distinctiveness of the settler colonial nation-state has challenged accepted
postcolonial understandings of enduring injustices.47 Arising within the interna-
tional movement for decolonization, and informed largely by the responses of
44
Anghie, supra n 42.
45
Ibid.; James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press,
2004).
46
Julie Evans, ‘Where Lawlessness Is Law: The Settler-Colonial Frontier as a Legal Space of Violence,’
Australian Feminist Law Journal 30(1) (2009): 3–22.
47
Wolfe, supra n 41.

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diasporic intellectuals to the problem of why mass injustices persist despite the
formal departure of colonial powers, postcolonial approaches commonly assume
a formal politico-legal point of transition. Settler colonial theorists argue, how-
ever, that no such change is evident in the circumstances of indigenous peoples in
settler societies, where declarations of national independence reflect the claims of
the settler colonizers vis-à-vis the ‘mother country,’ rather than those of the
colonized, whose subordination the fledgling nations continue to uphold.
Appreciating the significance of this particular experience of colonialism has
fostered a more comprehensive engagement with its consequences in the present.
In his influential and wide-ranging body of work theorizing the practice of settler
colonialism, Patrick Wolfe, for example, has explained the overwhelming import
of the fact that in the Australasian and North American colonies, settlers came to
stay. In contrast to the slave or franchise formations of the West Indies or India, in
settler colonies economic interest revolved around securing permanent access to
the land of the colonized, rather than in seeking to control their labour to exploit
its resources. Settler sovereignty is predominantly premised on the ongoing denial
of indigenous claims, an assertion already authorized discursively in international
law, but which, in needing to be made good on the ground, formed the lived
reality of the frontier period when indigenous peoples’ lands were appropriated
and their numbers decimated by the impact of violence, disease and removal.48
Wolfe argues that settlement should be seen as ‘a structure rather than an event,’
which unfolds in stages according to a persistent ‘cultural logic of elimination’ in
support of settler hegemony.49 This is a never-ending process that is evident not
only in the initial periods of invasion and dispossession but also in subsequent
periods of incarceration on reserves or missions and, finally, in the relentless
attempts to assimilate indigenous peoples into no longer counting as sovereigns.
Consequently, in Australia, as a range of scholars has shown,50 the Mabo High
Court decision (which recognized a limited form of indigenous land rights)51 and
resultant native title legislation do not so much mark a point of rupture as signal a
continuation of the process of denying or containing indigenous sovereignty, an
assertion that is apparent in the overwhelming difficulties claimants have had in
bringing their cases before the courts52 and in securing legal determinations in
their favour.53 Thus, if decolonization, in Michael Humphrey’s words, can be seen
48
Ibid.; Evans, supra n 46.
49
Wolfe, supra n 41 at 96.
50
Ibid.; Gerry Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An
Unresolved Jurisprudence,’ Melbourne University Law Review 19 (1993): 195–210; Stewart Motha,
‘The Failure of “Postcolonial” Sovereignty in Australia,’ Australian Feminist Law Journal 22
(2005): 107–126.
51
Mabo and Others v. Queensland (No. 2) (1992) 175 CLR 1.
52
Wayne Atkinson, ‘“Not One Iota” of Justice: Reflections on the Yorta Yorta Native Title Claim
1994–2001,’ Indigenous Law Bulletin 5(6) (2001): 19–23.
53
Ann Curthoys, Ann Genovese and Alex Reilly, Rights and Redemption: History, Law and Indigenous
People (Sydney: University of New South Wales Press, 2008).

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‘from the transitional justice perspective’ as ‘an instance of transition where there
was no accountability, in other words, where impunity prevailed,’54 the continu-
ance of settler colonialism can only constitute an ongoing injustice that has not
been adequately acknowledged, ceased or addressed.
Moreover, in addition to articulating the salience of distinctive economic
imperatives in settler states,55 settler colonial theory makes a major analytical
contribution to understanding structural injustices by identifying the ways in
which particular discursive frameworks serve to justify and embed them. In
demonstrating the correlation between the material purposes and ideological
operations of setter states, this scholarship powerfully elaborates the full scope
of the impact of colonialism and settler colonialism on both indigenous and non-
indigenous peoples. Through attributing sovereignty to Europeans alone, sover-
eignty discourse effectively inaugurated settler colonies as nascent settler states
that would eventually be legitimated through and within the international order.
Meanwhile, within the domestic realm, a range of similarly racialized discourses
and practices continues to be available for appropriation, ready to shore up pre-
vailing assumptions that indigenous peoples might not deserve redress for what
has been taken from them. In these ways, settler colonial theory clarifies the
circumstances in which the ideological or discursive harms arising from coloni-
alism risk becoming so great that they prevent meaningful public – as well as
official – acknowledgement of structural injustice and engagement with questions
of structural justice.
Taken together, these insights from settler colonial theory shed light on the
nature of structural injustice (as both materially and discursively configured) and
underscore the need for structural change in settler colonial societies. By high-
lighting the inequity that informs global and national structures such as sover-
eignty and drawing attention to the distinct nature of the enduring unjust
arrangements that define settler colonial states, the theory positions such struc-
tural injustices as integral to the historical and contemporary harms perpetrated
against indigenous peoples. In doing so, it opens up the possibility that structural
reform must be central, rather than ancillary, to any attempt to address the past.
As one Assembly of First Nations leader, Ovide Mercredi, in Canada explains,
‘Our fundamental problem is the nature of our relationship with Canada.
Structural change in laws and policies is essential.’56
54
Michael Humphrey, ‘Re-Entering History as Suffering Victims: The Reach of Transitional Justice
into Past Imperial Violence and Trauma’ (paper presented at Human Rights and Imperialism in
Historical Perspective, Sydney, Australia, 10–11 August 2012).
55
For related analyses, see, Daiva Stasiulis and Nira Yuval-Davis, Unsettling Settler Societies:
Articulations of Gender, Race, Ethnicity and Class (London: Sage, 1995); Donald Denoon, Settler
Capitalism: The Dynamics of Dependent Development in the Southern Hemisphere (Oxford:
Clarendon Press, 1993).
56
Cited in Bonner and James, supra n 10 at 19.

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Structural and Historical Injustice: The Australian

Settler State
As former British settler colonies, Australia, New Zealand, Canada and the US
share common histories of settlement that have helped shape the life experiences
and aspirations of indigenous peoples within each country, including their over-
representation in a wide range of welfare indicators and, most dramatically per-
haps, in relation to the criminal justice system. It is to the details of the Australian
case that we now turn in order to expand on the particularity of the structural and
historical injustices in settler states.
While the Australian colonies were initially envisaged as repositories for British
convicts, the seemingly widespread availability of land and associated opportu-
nities for economic advancement soon attracted large numbers of free settlers.
With the rapid expansion of pastoralism, the colonies eventually displayed the
distinctive characteristic of permanent settlements elsewhere in the British
Empire: indigenous peoples’ unproductive ‘wastelands’ were converted into pri-
vate property that could support an agricultural capitalist economy. As dispos-
session unfolded during the so-called frontier period – and surviving indigenous
peoples were removed to reserves or lived as fringe dwellers – settlers literally
‘replaced’ them on their lands, enabling Britain to realize on the ground the
sovereignty it already claimed discursively through international law.57
Throughout the 19th century the Australian colonies held out opportunities
that generations of settlers accustomed to the strictures of Old World societies
could barely imagine. Ideas about equality and individual freedom flourished and
by the time of federation in 1901 the newly independent Australia was at the
forefront of liberal democratic thought and practice.58 For indigenous peoples, on
the other hand, the impacts of British settlement were devastating.
Settlement proceeded in waves across the Australian colonies. While the lands
of indigenous peoples of the southeast were swiftly brought within British control,
frontier conditions existed in the territories to the north, centre and west of the
vast continent well into the 20th century. Despite important local differences,
settlement observed common patterns, as indigenous peoples’ sovereignty was
transformed and transferred and settler sovereignty secured, first, through the
discursive denial of their sovereignty at international law and, second, through
their actual territorial dispossession, their subsequent confinement on margin-
alized lands or reserves and their overwhelming subjection to the politics and
practices of assimilation designed to address ‘the Aboriginal problem.’59
57
Deborah Bird Rose, Hidden Histories: Black Stories from Victoria River Downs, Humbert River
and Wave Hill Stations (Canberra: Aboriginal Studies Press, 1991); Wolfe, supra n 41; Evans,
supra n 46.
58
Alan Atkinson, The Europeans in Australia: A History, vol. 2 (Oxford: Oxford University Press,
1997).
59
Wolfe, supra n 41; Veracini, supra n 41.

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In common with the coercive legal and administrative regimes that were visited
upon indigenous peoples in New Zealand, Canada and the US, and in contrast to
the sovereign freedoms held out to settler populations, Aboriginal and Torres
Strait Islander peoples throughout Australia were subjected to exceptional modes
of governance.60 As the individual colonies asserted their independence and even-
tually united as a federation, Australian settler governments largely continued to
deny recognition of indigenous sovereignty and law.61 Underscored by already
well-worn colonial discourses on civilization and progress, a vast array of dis-
criminatory policies and practices sought to reduce the numbers of people count-
ing as Aboriginal, to limit their life experiences and movements and to secure the
breakdown of their culture, including through the separation of children from
their families.62
In the present, Aboriginal people remain susceptible to exceptional, forceful
and paternalistic ‘intervention’ by the state. As recently as 2007, for example, the
federal government passed the Northern Territory National Emergency Response
to deal with alleged sexual abuse of children in communities, an action initially
supported by the deployment of 600 soldiers and the suspension of the 1975
Racial Discrimination Act.63 Meanwhile, as critical criminologists have long
observed, the impact of the colonial past is dramatically reflected in the rising
overrepresentation of indigenous peoples in custody. At the time of writing, adult
Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned
than the dominant population in Australia. For indigenous young people, the
detention rate is 35 times higher than for their non-indigenous counterparts.
Significantly, while imprisonment rates have otherwise stabilized in Australia,
rates for Aboriginal and Torres Strait Islanders have increased by more than 50
percent in recent years.64 This is a matter of urgent concern that works to repro-
duce not only indigenous peoples’ historical distrust of the police but also their
social disadvantage more generally through exacerbating family dislocation,
60
Ann Curthoys, ed., ‘Taking Liberty: Settler Self-Government and Indigenous Australia,’ special
issue of Journal of Colonialism and Colonial History 13(1) (2012); Julie Evans, Patricia Grimshaw,
David Philips and Shurlee Swain, Equal Subjects, Unequal Rights: Indigenous Peoples in British
Settler Colonies, 1830s–1910 (Manchester: University of Manchester Press, 2003).
61
While there was, at least until the late 1830s, some limited recognition of indigenous law and
jurisdiction where British law was not – or could not be – imposed, the notion and practice of an
exclusively settler sovereignty prevailed once the frontier lands were secured. See, Lisa Ford, Settler
Sovereignty: Jurisdiction and Indigenous Peoples in America and Australia, 1788–1836 (Cambridge,
MA: Harvard University Press, 2010); Damen Ward, ‘A Means and Measure of Civilisation:
Colonial Authorities and Indigenous Law in Australasia,’ History Compass 1 (2003): 1–24.
62
Wolfe, supra n 41; Human Rights and Equal Opportunity Commission, supra n 7.
63
Jon Altman and Melinda Hinkson, Coercive Reconciliation: Stabilise, Normalise, Exit Aboriginal
Australia (Melbourne: Arena Publications, 2007); Nicole Watson, ‘The Northern Territory
Emergency Response – Has It Really Improved the Lives of Aboriginal Women and Children?’
Australian Feminist Law Journal 35 (2011): 147–163.
64
Australian Human Rights Commission, Value of a Justice Reinvestment Approach: AHRC
Submission to the Legal and Constitutional Affairs Committee (2013).

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poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions.65
While settler colonial theory sets out to explain the historical, discursive and
structural features that define Australia as a settler polity, the activism of indi-
genous peoples66 – and of concerned settlers – has of course also underpinned
important reforms, particularly in relation to civil and political rights and various
rights to land.67 In Australia, as elsewhere, concern about the continuing ramifi-
cations of the lack of consent to the original assertion of sovereignty informs
persistent activism and research around matters of indigenous justice in national
and international arenas, by both indigenous and non-indigenous peoples seek-
ing to establish more lawful ways forward, including through taking account of
non-western frameworks and ontologies.68
Yet, at an official level, settler states have been reluctant to embrace such efforts
at reform, as demonstrated in their prolonged opposition to the UN Declaration
on the Rights of Indigenous Peoples and in the entrenched interests of powerful
stakeholders who remain committed to preserving the status quo.69 In maintain-
ing commitments to western frameworks, settler polities are not readily open to
the view that indigenous ways of conceptualizing and exercising ‘sovereignty’
might also inform collective considerations of how to live together justly.
Meanwhile, in the case of Australia, where no treaties were accorded to indigen-
ous peoples,70 public discussions about the past risk also being framed as dama-
ging and divisive rather than beneficial and unifying.71
In this context, a key strand of academic critique of the existing official re-
sponses to indigenous injustice, such as apologies and court cases, is that such
approaches have in fact been used in settler states to strengthen rather than
challenge their sovereignty and legitimacy,72 by placing them in a position to
determine which indigenous claims to injustice will and will not be recognized
and by confining, interpreting and responding to such claims through the
65
Cunneen, supra n 25; Harry Blagg, Crime, Aboriginality and the Decolonisation of Justice (Sydney:
Hawkins Press, 2008).
66
See, Maynard, supra n 4; Bain Attwood, Rights for Aborigines (Sydney: Allen and Unwin, 2003);
Belmessous, supra n 4.
67
Larissa Behrendt, Chris Cunneen and Terri Libesman, Indigenous Legal Relations in Australia
(Melbourne: Oxford University Press, 2009).
68
Black, McVeigh and Johnstone, supra n 12.
69
After 20 years of negotiation, the UN General Assembly adopted the declaration in September
2007. Only four negative votes were cast, by Canada, Australia, New Zealand and the US. Australia
finally adopted the declaration in April 2009, New Zealand in April 2010, Canada in November
2010 and the US in December 2010.
70
The doctrine of terra nullius prevailed. See, Behrendt, Cunneen and Libesman, supra n 67; Henry
Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia
(Melbourne: Penguin, 1982). Also see, Quinn, supra n 22.
71
Tony Birch, ‘“The Invisible Fire”: Indigenous Sovereignty, History and Responsibility,’ in
Sovereign Subjects: Indigenous Sovereignty Matters, ed. Aileen Morton-Robinson (Sydney: Allen
and Unwin, 2007); Stuart Macintyre and Anna Clark, The History Wars (Melbourne: Melbourne
University Press, 2004).
72
Jung, supra n 6.

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framework of the colonial legal system.73 For example, the Native Title Tribunal
process in Australia has been widely criticized for its restrictive operation and its
requirement that applicants show continuous connection to land, where in many
cases, due the history of dispossession, this is impossible.74 Meanwhile, other
attempts to establish governmental responsibility for settler colonial harms
(through, for example, legal actions) have been actively contested by the state
rather than being state-initiated or supported.75
Overall, the pattern of reform in Australia has tended to be ad hoc and partial
rather than systemic and comprehensive as befits more fulsome attempts to re-
dress complex structural injustices. Efforts at reform can be characterized as
welfare rather than justice oriented and as shying away from a thorough reima-
gining of sovereign relations between indigenous peoples and the state.76 Key
initiatives, such as the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from Their Families (1997) and the governmental
apology (2008), have only addressed specific instances of human rights violations.
There has been no apology, for example, for colonization per se, nor a thorough
engagement with the historical and contemporary impact of the full extent of
settler colonial governance, repression and exploitation of indigenous commu-
nities since colonization.77 Such limited approaches to engaging with the past are
problematic in that they can obscure other colonial harms and modes of redress
and the structural, continuing nature of these harms. As Alexander Reilly has
observed of the governmental apology, for example, it is one thing to express
73
For an account of these critiques, see, Moses, supra n 5.
74
Damien Short, ‘The Social Construction of Indigenous ‘Native Title’ Land Rights in Australia,’
Current Sociology 55(6) (2007): 857–876; Nicole Watson, ‘What Do We Want? Not Native Title,
That’s for Bloody Sure,’ in The Aboriginal Tent Embassy: Sovereignty, Black Power, Land Rights and
the State, ed. Gary Foley, Andrew Schaap and Edwina Howell (Melbourne: Routledge, 2014).
75
Jennifer Balint, ‘Stating Genocide in Law: The Aboriginal Embassy and the ACT Supreme Court,’
in The Aboriginal Tent Embassy: Sovereignty, Black Power, Land Rights and the State, ed. Gary Foley,
Andrew Schaap and Edwina Howell (Melbourne: Routledge, 2014); Bonner and James, supra n 10.
76
These include two significant national inquiries (the Royal Commission into Aboriginal Deaths in
Custody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from Their Families in 1997); the High Court decision to over-
throw the notion of terra nullius in Mabo and Others v. Queensland (No. 2) (1992) and the highly
circumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (and
the Native Title Amendment Act of 1998); a now defunct National Council for Aboriginal
Reconciliation, which was mandated to operate for 10 years from 1991 and now operates min-
imally as Reconciliation Australia; and, in 2008, a formal apology to ‘all Aborigines and Stolen
Generations’ (see, Rudd, supra n 7). A range of state-based reforms around justice issues followed
the RCIADIC, although implementation of the recommendations varies markedly across
jurisdictions.
77
Jung, supra n 6; Tony Barta, ‘Sorry, and Not Sorry, in Australia: How the Apology to the Stolen
Generations Buried a History of Genocide,’ Journal of Genocide Research 10(2) (2008): 201–214;
Julie Evans, Ann Genovese, Alexander Reilly and Patrick Wolfe, Sovereignty: Frontiers of Possibility
(Honolulu, HI: University of Hawaii Press, 2013); Chris Cunneen, ‘Indigeneity, Sovereignty, and
the Law: Challenging the Process of Criminalization,’ South Atlantic Quarterly 110(2) (2011):
309–327. Although former Australian Prime Minister Paul Keating’s Redfern Park speech is an
exception: Honourable Paul Keating, ‘Redfern Speech: Year of the World’s Indigenous People – 10
December 1992,’ http://www.keating.org.au/shop/item/redfern-speech-year-for-the-worlds-indi-
genous-people—10-december-1992 (accessed 24 February 2014).

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regret about policies of the past but quite another ‘to guarantee that similar laws
could not be passed again.’78
Transitional Justice as Structural Justice

Productive possibilities stem from approaching settler colonial injustice through
a transitional justice framework. For example, conceptualized as a proper subject
of transitional justice, settler colonial injustices may become more appreciable as
harms. Framing settler colonial harms through transitional justice discourse and
as comparable to (although not the same as) other more recent mass harms that
have gained more academic and public attention may enable non-indigenous
citizens in settler colonial contexts to recognize injustices in their nations that
otherwise may be hard to discern as a result of dominant official narratives. In the
naming of these injustices using transitional justice frameworks, they can also
become justice, not welfare, issues.
Transitional justice offers a programme of legal processes that can enable pol-
itical and social change. As a legal-based response to harm, transitional justice
approaches privilege the role of law in political change, as well as demonstrating
the ability of law, as highlighted by Teitel, to be both responsive and progressive,
to, in the words of Adam Czarnota, ‘respond at the same time both to the need for
radical change and the need for substantial continuity.’79 This use of law as a tool
for both the addressing of harm and institutional and social change can be a
strength in tackling long-term structural injustice.
Transitional justice also offers the possibility of a more comprehensive response
to settler colonial harm. That is, in addition to being a form of justice defined by
its temporality (a transitional justice), transitional justice is a justice model. It is
concerned with the importance and mechanics of recognizing and redressing
widespread and state-sanctioned harm through the use of political-legal initia-
tives such as trials, truth commissions, apologies and reparations to achieve pol-
itical and social goals (from accountability to reconciliation to reconstruction). It
is in this sense that the UN has emphasized the pluralistic capacity of transitional
justice. The secretary-general’s seminal report on transitional justice makes it
clear that ‘where transitional justice is required, strategies must be holistic, incor-
porating integrated attention to individual prosecutions, reparations, truth-seek-
ing, institutional reform, vetting and dismissals, or an appropriately conceived
combination thereof.’80 While such initiatives may not always be so comprehen-
sive in practice, transitional justice can offer tools to place responses to indigen-
ous injustice within a broader ‘justice agenda,’ and to rethink underlying unjust
78
Alexander Reilly, ‘Sovereign Apologies,’ in Evans et al., supra n 78 at 214.
79
Adam Czarnota, ‘Law as Mnemosyne and as Lethe: Quasi-Judicial Institutions and Collective
Memories,’ in Lethe’s Law: Justice, Law and Ethics in Reconciliation, ed. Emilios Christodoulidis
and Scott Veitch (Oxford: Hart, 2001), 127.
80
‘Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and
Post-Conflict Societies,’ UN Doc. S/2004/616 (2004), 9.

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relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects.
The use of a multifaceted framework to conceptualize and address settler co-
lonial injustice could function as a useful counter to the highly politicized, and
often ad hoc and piecemeal, top-down governmental responses that have been
offered to date.81 In Canada, a restrictive focus on the experiences of certain
residential school claimants was used by the government to shift attention
from the question of group-based and socioeconomic rights for indigenous
Canadians.82 In Australia, government reconciliation initiatives can be under-
stood as a case of reconciliation without justice, particularly in the context of a
continuing colonial framework.83 In other contexts, symbolic acknowledgements
of past injustice, such as apologies, truth commissions and commissions of in-
quiry, have generally been used in lieu of rather than in combination with other
initiatives to redress the past, such as reparations.
Yet, particularly in the context of redressing indigenous injustice, settler colo-
nial theories are needed to revise critically dominant transitional justice
approaches. By unsettling any clear distinction between the past and the present,
such theories can be used to challenge the artificiality of the temporal framework
that currently shapes transitional justice, stymying its ability to recognize and
redress long-term harm. By underscoring the significance of history, as well as its
enduring implications, these theories serve to counter the current failure of tran-
sitional justice to ‘look backward’ to causes and histories as well as to look forward
to broader, more structural solutions. Settler colonial theory also provides con-
ceptual tools to question the current conceptualization and mobilization of tran-
sitional justice as a state-building enterprise. This interrogation is particularly
important if transitional justice is to be extended to settler societies. As Courtney
Jung highlights, transitional justice is a blunt tool if it simply serves to consolidate
the sovereignty of the settler state.84 Settler colonial theories and experiences can
help to explicate the nature of structural harms, as practically and ideologically
manifest.
Recent scholarship on structural injustice recognizes the need for a more com-
prehensive mode of accounting for mass harms than approaches that focus pre-
dominantly on state-based actions and/or individual culpability. Political
philosopher Catherine Lu’s development of Iris Marion Young’s early theoretical
work on structural injustice is pertinent to our efforts to highlight the long-term
81
Jung, supra n 6.
82
Matt James, ‘A Carnival of Truth? Knowledge, Ignorance and the Canadian Truth and
Reconciliation Commission,’ International Journal of Transitional Justice 6(2) (2012): 182–204.
See also Jung, supra n 6; Nagy, supra n 15.
83
Short, supra n 10; Damien Short, ‘When Sorry Isn’t Good Enough: Official Remembrance and
Reconciliation in Australia,’ Memory Studies 5(3) (2012): 293–304; Reilly, supra n 59; Anne
Orford, ‘Ritual, Mediation and the International Laws of the South,’ Griffith Law Review 16(2)
(2007): 353–374.
84
Jung, supra n 6.

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historical injustices arising from colonialism.85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global
networks whose redress requires expansive rather than narrow analytical frame-
works.86 Injustice is conceived of as a product of inequitable structures as well as
individual action. In this view, a structural justice model would involve a shift
from individualistic and state-focused modes of redress towards a more thor-
oughgoing evaluation of the structural vestiges of ‘past’ harms and an openness to
deep and wide-ranging reforms, including indigenous jurisprudences, which
would transform social, political, legal and economic arrangements that enabled
the harms. A structural justice would pay attention to both the causes and the
legacies of the initial harms.
Thus, what emerges from this discussion is a proposal for an enhanced transi-
tional justice model that draws on the field’s strength as a programme of legal
processes enabling social and political change, while also focusing on structural
and historical harm. This model is characterized by its foregrounding of structural
justice, which opens the state and its foundations up to question rather than
simply reaffirming them and acknowledges the contiguity between the harms
of the past and those of the present. It is attentive to the complex nature of
structural injustice, which is politically, socioeconomically, legally and ideologic-
ally located and ingrained in practical societal arrangements and institutions as
well as dominant public discourses.
This call to broaden the scope of transitional justice sits more comfortably with
certain approaches to the field than others. By some accounts, extending transi-
tional justice approaches beyond the context of a moment of political transition
to account for more than civil and political violations may compromise the dis-
tinctiveness of the transitional justice framework. However, the purpose here is
not to suggest that transitional justice become conflated with the general pursuit
of socioeconomic redistribution through equitable governance. Rather, our
model seeks to build on the field’s key concerns – namely to acknowledge and
redress mass harm as a matter of justice and as a means of grounding a shared
future – to imagine a justice-based, rather than welfare-based, model for dealing
with the past and its legacies that is not unduly blind to certain episodes of
injustice and certain dimensions of societal and individual harm.
In current academic work on transitional justice in settler colonial contexts,
some hesitations have been expressed about the potential disjunctures between
transitional justice approaches and settler colonial realities. One such concern is
the clear lack of transition that characterizes such contexts. Nagy, for example,
notes that ‘while it is important to acknowledge and address systemic human
85
Iris Marion Young, ‘Responsibility and Global Justice: A Social Connection Model,’ Social
Philosophy and Policy 23(1) (2006): 102–130; Iris Marion Young and Martha Nussbaum,
Responsibility for Justice (Oxford: Oxford University Press, 2011).
86
Catherine Lu, ‘Colonialism as Structural Injustice: Historical Responsibility and Contemporary
Redress,’ Journal of Political Philosophy 19(3) (2011): 261–281.

on 13 June 2018
rights abuse, it is also rather awkward to affix the label “transitional” to justice
long denied in liberal democracies.’87
It may be, however, that we need to think about transition differently – as not
solely transition to a democratic regime as initially understood in the transitional
justice paradigm, but also as transition from unjust relations to just relations and
the transformation of the social, political, economic and legal frameworks such as
those that underlie settler colonialism. It is the structural injustice of settler co-
lonialism, and colonialism generally, that continues as the core injustice into the
present. This includes the ongoing denial of indigenous sovereignty and the po-
tential to place indigenous peoples outside the rule of law in governance.
A transitional justice framework enhanced by the notion of structural justice
may also provide the theoretical resources to rethink the relation between justice,
injustice and transition and to reconsider what it means to pursue just outcomes
as a society. It may indeed prompt consideration of how justice measures could
themselves facilitate a process of transition rather than simply respond to it. Jung
writes of the ‘transformational capacity’ of transitional justice measures,88 while
Wendy Lambourne has discussed how transitional justice may be understood as a
‘transformative justice.’89 On this view, transitional justice, – reconceived as a
discourse and practice that enables as well as accompanies transition – could be
more proactive in orientation. Rather than pursuing redress for past injustice as a
singular goal, transitional justice may be directed towards ensuring substantive
justice through prompting societal, political and economic change that addresses
the structural underpinnings of harm and injustice in societies.
A robust transitional justice model with a broader justice agenda may also be
better placed to identify and analyze the range of different harms that might
constitute the target of transitional and other justice measures. A focus on a
wider spectrum of events of injustice may further a recognition of the different
types of harm that may require redress – from the traditional focus of transitional
justice on physical harms to acknowledgement of the significance of socioeco-
nomic, ‘cultural’ and ‘intergenerational’ injuries.90
Unsettling the presentist and linear temporal focus of transitional justice can
also facilitate the elaboration of a justice framework premised on a complex and
nuanced approach to ‘past’ harms. Recognition of the ongoing resonance of these
harms could pave the way for a theorization of the nature of historical harms.
Building on existing acknowledgements of the intergenerational transmission of
trauma in affected families and communities, there is scope to inquire further into
the attributes of historical injustices that remain unaddressed. Do such injustices
simply endure, manifesting as they did when inflicted; do they become com-
pounded over time; or, indeed, does the character of the injustices change with
87
Nagy, supra n 15 at 281. See also, Jung, supra n 6; Arthur, supra n 16.
88
Jung, supra n 6.
89
Lambourne, supra n 13.
90
Jung, supra n 6; Meister, supra n 28.

on 13 June 2018
the passage of time, altered by either their longevity or societal failure to effect-
ively acknowledge and address them?
Moreover, a more inclusive approach could result in new practical interven-
tions. That is, if transitional justice processes are extended to address expansive
histories of past oppression, their scope may need to be temporally broad. Rather
than focusing on the establishment of specific mechanisms that operate for a
defined period, the emphasis may shift to ongoing and long-term interventions
designed comprehensively to address structural injustices.91 Such approaches
may be particularly relevant in settler colonial societies where injustices have
been so enduring. Meanwhile, as Jung notes, standalone initiatives such as apolo-
gies and truth commissions must be situated within broader programmes de-
signed fully to redress the past.92 What remains critical, however, is that these are
not simply conceived within western frameworks but also informed by indigen-
ous worldviews, and that they seek to transform inequitable institutional frame-
works that have been largely unquestioned.93
Conclusion
As we have illustrated, the practical realities of settler colonial societies demand
more of transitional justice. They foreground the need for the field’s frameworks
to more substantively recognize and address structural and enduring injustices,
manifested in the continuing denial of sovereignty and the ‘exceptionalism’ ac-
corded to indigenous peoples. In this respect, settler colonial theory usefully
draws attention to the structural injustices (and constitutive violence) that under-
pin the inauguration and ongoing existence of settler colonial formations.
Moreover, in highlighting the colonial history of seemingly neutral western con-
cepts, it can shed light on the current failings of transitional justice, particularly its
inability to engage with structural harm, which is relevant not only for postco-
lonial and settler colonial societies but also for other postconflict contexts.
Institutional reform, which in some senses shaped the early agenda of transi-
tional justice approaches in Latin America and Eastern Europe, may again be
foregrounded as an integral element of addressing the past. An approach to settler
colonial harm based on transitional justice and settler colonial perspectives may
have the capacity to prompt new ways of engaging with historical injustice that are
comprehensive in orientation, informed by indigenous as well as non-indigenous
frameworks and premised on the pursuit of structural change in order to redress
long-term and short-term harms.
We are proposing a new justice model for transitional justice that is premised
on recognizing the continuities between the past, present and future and that
91
Arthur, supra n 16.
92
Jung, supra n 6.
93
For related discussion, see, Mark Rifkin, ‘Indigenizing Agamben: Rethinking Sovereignty in Light
of the “Peculiar” Status of Native Peoples,’ Cultural Critique 7 (2009): 88–124; Black, McVeigh and
Johnstone, supra n 12; Birch, supra n 80.

on 13 June 2018
recognizes the structural frameworks that both constitute and continue current
and past injustices. This model draws upon the strengths of transitional justice as
a law-based programme of redress and the insights of settler colonial theory that
highlight the continuities between past and present and the impact of settler
colonialism in societies like Australia as an example of ongoing structural injust-
ice. This enhanced transitional justice model is premised on the importance of
structural justice, and also the role of law in initiating change, and of addressing
structural injustices that are often neglected by conventional justice responses.
In settler colonial states, where questions of historical and structural injustice
risk being downplayed and discredited, the imperative to explore new ways of
conceptualizing and responding to the harms inflicted on indigenous peoples, a
transition from unjust to just relations, remains strong. An enriched transitional
justice may enable greater recognition of colonial harm and hence foster concep-
tual and practical approaches to more substantively address the structural injust-
ices that persist in settler colonial, postcolonial and even postconflict states. Such
an approach may enable the redress of harm as well as establish the grounds for a
just future.

on 13 June 2018

Rethinking Transitional Justice

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The International Journal of Transitional Justice, Vol.

Rethinking Transitional Justice,

Jennifer Balint,* Julie Evansy and Nesam McMillan**

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

Transitional Justice and Structural Harm

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

Recognizing Structural Injustice: Settler Colonial

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

effectively remain colonial formations. Moreover, settler colonial theory identifies

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

Structural and Historical Injustice: The Australian

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

poverty and cultural breakdown and working to reinforce harmful racialized

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

Transitional Justice as Structural Justice

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

relations through which both indigenous and non-indigenous communities may

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

historical injustices arising from colonialism.85 Lu notes that injustices such as

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

International Journal of Transitional Justice, Vol. 8, 2014, 194–216

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