The Power and Politics of Transitional Justice

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Justice statue, located at the US Courthouse in Lafayette. Photo: mjecker/flickr

One of the overarching ideas this blog explores is the emerging trend of appealing to international criminal justice in (and in the wake of) conflict situations. The fact that “we no longer consider whether to pursue justice, but how and when” is part of the proliferation of the practice and perhaps more importantly the idea of transitional justice. The speed of TJ’s expansion is striking. It cycled through its celebratory phase, was consolidated as a field of knowledge and practice, and developed a body of critical literature within a decade of its formation as a concept. The tensions that exist within the “field” are also striking; transitional justice often seeks to balance conflicting ideas such as peace and justice, the international and the local, retribution and restoration, law and politics. As a field of knowledge it draws upon competing and conflicting disciplines and as a field of practice it attempts to apply unified narratives to a range of local experiences.

Christine Bell questions these contradictions. She argues that “Transitional justice does not constitute a coherent ‘field’ but rather is a label or cloak that aims to rationalize a set of diverse bargains in relation to the past as an integrated endeavour.” For Bell, transitional justice encompasses three separate projects:

“an ongoing battle against impunity rooted in human rights discourse; a set of conflict resolution techniques related to constitution making; and a tool for international state-building in the aftermath of mass atrocity.”

Yet within the language and practice of transitional justice these three distinct projects are often combined, and sometimes confused. Instead of focusing on the incoherence of TJ as a field of knowledge and practice, I suggest we ask: what has brought these seemingly contradictory ideas together into a discipline? What is TJ? Why has it gained such prominence in the past two decades? What can it tell us about international politics and the pursuit of global/local justice?

Consider the following definitions:

  1. According to Ruti Teitel, who has been credited with first coining the concept, “Transitional justice can be defined as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”
  1. For Bell, “Transitional justice appears to be an established field of scholarship connected to a field of practice on how to deal with past human rights abuses in societies in transition.”
  1. Finally, the International Center for Transitional Justice defines transitional justice in terms of the range of responses that have come to constitute TJ as a field of practice; “Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programmes, and various kinds of institutional reforms”.

Most definitions of TJ include this language of “responding to” or “dealing with” past atrocities. In its clearest formation, knowledge and practice that falls within the “field” of transitional justice is unified as a response to a single problem: how to address past human rights abuses in the context of a shift in political order (political transition). This construction is backward looking and positions TJ as a neutral force with a moral purpose. Indeed much of the literature in the field describes and debates transitional justice approaches and their association with moral principles through which transitional justice “deals with” the past, namely: truth, justice reconciliation, memory, accountability. The degree to which these values are means to an (undefined) end, or ends in themselves remains unclear. The question lingering beyond the definition is: what is justice, and perhaps more importantly in a burgeoning democracy, who decides? In this sense, perhaps transitional justice is more aptly characterized as a question and the range of knowledge and practices that may be draw upon to respond to it.

If transitional justice is best understood as a question, what legitimizes a particular TJ “response” in a specific place or time? This could be a fascinating comparative research topic, and is one I hope to continue to explore. But from my experience, transitional justice mechanisms, be they truth commissions, courts, memorials or reparations programmes, appeal to moral and legal reasoning to justify their existence. Consequently, this is how they are understood. In the debates that determine what transitional justice should be, arguments about what is practically possible, what is morally valuable and what is legally authorized obscure the operations of politics, in particular the massive political project which creates the need for a TJ process in the first place: the reconstitution of the new state. This leads us to a broader tension within the field of transitional justice; it simultaneously responds to the abuse of power and legitimates new forms of power. I would argue that instead of understanding the field of transitional justice as a list of mechanisms or values we should see transitional justice as a negotiation between normative and political forces; the infusion of moral (and legal) considerations into what is an inherently political project.

It is also important to note that the authority of TJ stems largely from international norms and the international community. This is fairly obvious; transitional justice as a concept emerged from a global wave of political transitions and the influence of international human rights and humanitarian law, yet it has contributed to the depoliticization of our understanding of TJ. Transitional justice has become a global industry, led by the International Center for Transitional Justice, a prestigious international organization with 10 offices, including its headquarters in New York, and projects in 30 countries. As a field of practice it expanded through the propagation of TRCs and other mechanisms, while as a field of knowledge it takes a progressive approach to cases, drawing on comparative analysis of outcomes to produce knowledge. The authority of the ICTJ and other international actors comes from their technical expertise and the moral imperative of responding to atrocities. The language of “best practice” justifies the transfer of norms as knowledge transfer. Again, legitimacy is based on technical expertise, international legal norms and moral concerns.

Now let’s return to our original question; why has TJ become an important field of knowledge and practice? It is commonly acknowledged that the first experiences of transitional justice emerged from the end of the Cold War and the ensuing period of global “democratization”, instigated by the collapse of proxy regimes formerly supported by the U.S. and Soviet Union. Viewed in this political context, the aim of transitional justice seems quite clear; “Debates about ‘transitional justice’ are generally framed by the normative proposition that various legal responses should be evaluated on the basis of their prospects for a (liberal) democracy.” According to Teitel, transition was considered complete when “western style democracy” had been established. The language of transitional justice has served to neutralize these values, but they bring us back to a political understanding of transition; it invokes a nation-building project and is thus about the consolidation of new forms of power.

The international human rights project has also influenced the formation of transitional justice. Its influence can be understood through the legacy of Nuremberg, through local and international human rights groups’ demands for justice during transitional justice processes, and the emphasis of the human rights movement on accountability for state crimes. Seen in the context of liberal democratization, human rights are the apolitical values of the post-ideological world, the ideal set of universal standards towards which transitioning societies should conform. In fact, the neutralized language of transitional justice may be explained by the influence of human rights’ moralization of politics. We see its reflections in transitional justice’s standard approach of treating all acts of violence equally.

Now that we’ve explored the context of TJ’s emergence, lets return to Bell’s assertion that:

“transitional justice is ambiguous in straddling three different conceptions: transitional justice as an on-going battle against impunity rooted in human rights discourse; a set of conflict resolution techniques related to constitution-making and a tool for international state-building in the aftermath of mass atrocity.”

Can we understand why these three projects are combined beyond the relevance of each to the question of political transition? Ruti Teitel has argued that international/transnational legal practices “assist in framing and legitimating the form of policymaking choices in present global politics.” In this view, it is through appealing to international or transnational legal norms that a government is recognized by and admitted to the international community. Thus seen, transitional justice is the tool by which a new regime appeals to the authority of transnational norms and communicates to the international community that it will play the rules. What Bell views as disciplinary incompatibilities, state-building, constitution making and human rights, are united in a transnational constitutional project based in the moral authority of human rights, and realized through the political project of managing state building. In this sense, transitional justice can be seen as a process by which states signal their legitimacy to the international community, the penetration of the local by the universal, the necessary first step to prepare us for democracy and human rights’ progressive realization, “the end of history.”

To conclude, an important element of the transitional justice project emerges from this analysis: transitional justice is about negotiating, legitimizing and shaping new forms of power. It is never objective, never merely a response to violence, but a negotiation between forces much more complicated and morally ambiguous than good and evil. The project of power consolidation is a functional one. Consider Michel Foucault’s inversion of Clausewitz’ aphorism: “power is war, a war continued by other means”. Perhaps transitional justice is the embodiment of this phrase. Its mechanisms must “sanction and uphold the disequilibrium of forces that [were] displayed in war”. The role of justice in the transition from an oppressive state or violent conflict is a critical one, but to fail to see it as political is to fail to ask: what kind of peace?

The depoliticization of transitional justice can be understood as an attempt to negotiate the black spaces, the inconsistencies that emerge in a political age that has replaced the language of politics and ideology with a language of ‘good’ and ‘evil’. It is this negotiation that fails to account for transitional justice’s placement within a broader story of power and ideology in a “post-ideological” world, and obscures its function of consolidating power. The irony is that this contradicts many tenets of the TJ movement. If nation-building is a political process, transitional justice projects speak the language of making that process accountable, of (re)building trust in institutions, of (re)storing dignity to humanity. The danger is that in attempting to eliminate politics from the transitional justice process it becomes oppressive as well as hegemonic. Understanding the political function of transitional justice is critical to reclaiming the possibility that exists in a moment of change.

Kara Apland recently completed a Fulbright scholarship studying Human Rights at the London School of Economics and Political Science. She has worked with the Liberian Truth and Reconciliation Commission in Ghana and Liberia, and also completed the Arthur Liman Public Interest Fellowship at the International Center for Transitional Justice in New York.

This is a cross-post from Justice in Conflict.

=> Listen to last week’s ISN podcast with Christine Bell

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