Transitional justice: Reflections on the state of the field

By: Henry Redwood

shutterstock_324987014

Image Credit: Shuttershock

 

In 1992 Ruti Teitel coined the phrase “Transitional Justice” (TJ) to capture a new project sweeping through Latin America, where mechanisms like Truth Commissions were being used to usher in peaceful democracies after decades of violence.[1] The 1990s saw a proliferation of these types of responses to mass atrocity (increasingly known as “TJ tools”), with ad hoc criminal tribunals created for Rwanda and Yugoslavia, lustration proceedings in the former Soviet States, and the opening of archives in East Germany. Underpinning these mechanisms was the belief that states needed to “draw a line” under the past if they were to transition from war torn, divided or authoritarian societies to peaceful and reconciled communities. Within a matter of years the TJ industry was booming, and by 2010 approximately 848 TJ mechanisms had been used across 161 different countries, and over 2400 scholarly articles and books had been written on TJ.[2] Throughout all of this, TJ has been concerned with its relevance and its “uniqueness” as a discipline, leading to attempts to demarcate a space for it as a distinct field of academic enquiry. It now has its own journal and even an international “HQ” with the International Centre for Transitional Justice (ICTJ) on Wall Street, of all places. This short piece offers a series of thoughts on the state of the field, and also on the possible consequences of this attempt to demarcate a specific space that could be considered “unique”.

TJ has constantly tried to adapt and evolve in order to maintain its relevance over its 25 year existence, visible in the many internal “turns” it has witnessed: the impact turn; [3] the cultural turn;[4] and the latest the “local” turn. [5] The idea of “re-invention” is true, however, only to a certain extent as the broader parameters of the field and the logics that underpin it have been surprisingly resilient in the face of change, criticism and failure. What has perhaps defined this process more is its reactionary nature which has left many of the underlining assumptions of the field unquestioned: what TJ is about, who it concerns, what violence it addresses, how TJ might lead to “peace” in the long run, and indeed what is “peace”?

As such, as a field we rarely properly reflect on why our gaze is always on the Global South and never “internally” at issues at or in our own borders (the ICTJ map of places where it works is almost solely focused on the Global South). We rarely hear it being asked, then, how we might apply TJ in relation to post-crisis societies such as New Orleans after hurricane Katrina or in the face of mass police brutality against black bodies in the US, or how TJ might help to heal a divided country like Britain in the wake of “Brexit”. The failure to ask these questions propagates not only the legitimacy of the Global North intervening in the Global South to help “solve” their problems without reflecting on their complicity in the violence, but it also means that the model of the Western state (as a peaceful neo-liberal society) remains the unspoken and assumed goal of TJ processes (as “exceptional” violence, rather than systemic everyday violence, remains the point from which transition begins).

Similarly, for decades now we constantly call for the same mechanisms to be used in the wake of violence under the same notions of the power of “truth” and the catharsis of “speaking out” even whilst we hold suspicion that these are little more than (often Western-centric) aspirational dreams. Here, we consistently refuse to acknowledge that in practice all that we seem to do, at best, is treat the “symptoms” of violence and never address its cause: structural inequality, patriarchy, militarisation, securitisation, capitalism etc.[6] Without doing this, without challenging the very principles on which societies function and are reproduced (and the conditions whereby violence is both possible and legitimate), these mechanisms seem too often to have a tendency to re-ingrain and re-produce these structures that allow violence to occur rather than undermine them. Indeed it seems like TJ is often less about a transition to than it is a transition back to.

Equally, we seem to allow, both through our advocacy of these mechanisms and in our own academic writing, for potentially harmful “realities” to be reproduced. For instance, the problematic distinction between victims and perpetrators remains central to most TJ projects despite all that is known about the harm that this can cause.[7] What all of this suggests is that TJ has struggled to account for the broader mechanisms of power relations that it is part of. It has struggled to see how it might, as David Kennedy has recently argued, be complicit in violence. This has even been the case in some of the more recent work that emphasises the importance of the “local”. Here, whilst on the surface the turn to the “local” is a response to the Western hegemony that dominated the field in its early years (and in many respects still does), the “local” is too often seemingly praised for its natural (othering) value, still as something that is allowed to exist (“we” must prioritise the local) and continues to ignore the problematic power dynamics that local responses to mass violence seem to continue to produce.[8]

This is, of course, more than just about TJ operating as a field. But some of this has, I think, been down to this search for “uniqueness”. This has in part led to the notion that sometimes appears in TJ that bringing new ideas in “from the outside” means that the ideas are new.  At times, this also led to a failure to turn outwards to learn lessons from elsewhere that were learnt decades earlier. The need to demarcate a terrain of enquiry and policy has also led to the reproduction of the problematic ideas underpinning some parts – though not all – of the field. In response to why not look at Brexit, structural violence or patriarchy, the answer is too often that if we expand TJ too much it becomes meaningless as a field or policy area.[9] This might be true, to an extent, as all enquiries have to make decisions over what not to study, and analysis inevitably results in (arbitrary) categorisations. But it might be worth considering the harm that is caused by the current divisions around what is TJ, where can this be applied, to what and by what means, by who and what social orderings this re-creates before we continue to press on with advocating and analysing TJ.

 

Henry Redwood is a PhD candidate in the War Studies department and senior editor at Strife. His work engages critical theory to explore how international courts construct truths and the normative underpinnings these project. Alongside his research Henry has previously worked at the International Criminal Tribunal for Rwanda, and a number of (I)NGOs working in Rwanda. You can follow Henry on Twitter @hred44

 

Notes:

[1] Pierre Hazan, Judging War, Judging History, (Stanford: Stanford University Press, 2010) p. 8

[2] Patricia Olsen et al, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy, (Washington: United States Institute of Peace, 2010), p. 2 and p. 39

[3] See Eric Stover and Harvey Weinstein , ‘Introduction’, My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, Stover and Weinstein (eds), (Cambridge: Cambridge University Press, 2004)

[4] Tim Kelsall, Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone, (Cambridge: Cambridge University Press, 2009)

[5] Alexander Hinton (ed.) Transitional justice: Global mechanisms and local realities after genocide and mass violence, (Piscataway: Rutgers University Press, 2010)

[6] See Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections’, Third World Quarterly, 29:2 (2008), 275-289

[7] Kierran McEvoy, K., and Kirsten McConnachie, ‘Victims and Transitional Justice: Voice, Agency and Blame’, Social and Legal Studies, 22:4 (2013), 489 – 513

[8] Susanne. Thompson and Rosemary Nagy, “Law, Power and Justice: What Legalism Fails to Address in the Functioning of Rwanda’s Gacaca Courts”, The International Journal of Transitional Justice, Vol. 5, 2011, pp. 12-15

[9] Nagy, ‘Transitional Justice’, p. 277

Share this

Copyright © 2019 Strife Blog. All Rights Reserved.

Designed by Kris Chan