A Brief Discussion on Transitional Justice
The rapidly expanding study of transitional justice is a subfield at the intersection of jurisprudence, comparative politics, and political theory. It “refers to a field of activity and inquiry focused on how societies address legacies of past human rights abuses, mass atrocity, or other forms of severe social trauma, including genocide or civil war, in order to build a more democratic, just, or peaceful future.” [1]
Analyzing the conceptual history of transitional justice and how “transitions” reshaped human rights, it is noticed that transitional justice is in transition itself. Many controversial issues are raised regarding how to appropriately deal with the past in transitional societies. The theoretical field of transitional justice holds a great resemblance to that of conflict resolution and peace building, where it is conveyed that the key figure in sustaining peace and security is the promotion of the rule of law.
On a wider scale, transitional justice strategies have grown to include a range of activities that are not necessarily directly about justice. Transitional justice strategies are designed and channeled to fit a specific ontological view of society embodied in the liberal tradition. Over the years, international efforts in transitional societies have increasingly focused on the building of courts, the punishment of human rights violations, and the writing of laws. Justice has become one of the main areas of international assistance and cooperation.
The problem with globally promoting and adopting the unrestrained rule of law is that it lacks critical evaluation of its underlying assumptions. It is obvious that there are many misinterpretations with regards to the concept of the rule of law and its understanding. The rule of law is perceived to exist beyond culture, and is therefore thought to be easily applicable to different contexts through the creation of written laws and formal judicial structures. Accordingly, law is considered a foundational element that precedes all other factors, including culture and religion. In transitional societies, where abuses of power and violence were rampant, the advent of the rule of law not only symbolizes a breakaway from a difficult past, but is most importantly seen as capable to construct liberalizing change.
The problem, therefore, does not lie with the rule of law itself but, rather, with the way it is presented and promoted. Seeing law as an unbiased and impartial instrument is highly problematic, for it fails to recognize the cultural contingency of legal practices and understandings. Yet, the concept of the rule of law continues to be used and remains unquestioned. The main difficulty becomes how this understanding of law guides much of the ongoing international efforts to do justice and the kind of institutions transplanted into transitional societies, with no appreciation of the cultural embeddedness of such conception of law.
Transitional justice is a field highly defined by legal norms. It is an active promoter of judicialization and it is a prime site for this universalizing tendency. The field of study is driven by given norms and assumptions about the nature of law. The rule of law is seen as a value-free standard to be sought out and achieved. This, in itself, is contrary to a number of indigenous traditions that see law and justice as a lived experience, always reflecting the needs and preferences of those involved, as opposed to a rigid body of rules disconnected from local realities. As a result, the field of transitional justice emerges as a site where conflicting social rationalities test the limits of law order, guaranteeing peace and sustaining integrity.
The assumed impartiality and universality of the rule of law is most visible in the transfer of certain legal practices and judicial institutions to transitional societies. This usually includes the establishment of domestic criminal trials, truth-seeking bodies, and other hybrid or restorative mechanisms. While the ontological and ideological assumptions that underpin the rule of law remain largely unaddressed, the practice of the international community in promoting specific mechanisms and patterns is often disparaged. The sharing of information and best practices for dealing with grave violations of human rights is certainly to be encouraged. Yet, there is a very real danger that transitional justice interventions and practices become both non-reflexive and homogenized across the board. In this respect, they risk being ineffective, or, worse, detrimental to the societies where they are implemented.
The implementation of this approach lacks the social, historical and cultural connection to the people who are primarily affected by the transition. It is based on the faulty belief that what has worked in a few developed and industrialized countries will work elsewhere. As a result, local ownership of these processes and engagement in the rebuilding of a just society is not always optimal. This is troublesome, for it is well known that ignoring local needs and failing to engage local actors is likely to undermine the securing of a lasting peace. Local actors and communities must be involved in the design and implementation of transitional efforts for the process to work at all, which is not always the case with the top-down creation of judicial institutions.
Unfortunately, the international community continues to concentrate much of its efforts around the strengthening of state institutions. Often, the kinds of judicial institutions and reforms promoted in transitional societies reflect a specific understanding of the source of law and order, as well as the role of the state in maintaining both. This approach effectively limits the space for alternative modes of doing justice and making peace. Even though the international community has adopted a discourse of accommodation of traditional and other non-state approaches, the standardizing practices put in place often confine alternative processes within a legalistic framework.
Judicial reform has become a hallmark of transitional justice. The kinds of institutions transplanted and the legal assistance provided to transitional societies are often based on a given, preconceived template. The difficulty lies in finding ways to accommodate differences, without one way of knowing being subservient to the other. There is a real danger that the field of transitional justice simply serves to promote, maybe even involuntarily, a biased approach to doing justice, which fails respond to local needs and realities, which will deem it as illegitimate.
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[1] The Encyclopedia of Genocide and Crimes Against Humanity (Macmillan Reference USA, 2004), vol. 3, pp. 1045-1047.
References
Arthur, P. (May 2009). How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice. Human Rights Quarterly, vol. 31, no. 2, pp. 321-367.
Elster, J. (2004). Closing the Books: Transitional Justice in Historical Perspective – Chapter 4: The Structure of Transitional Justice. Analytics of Transitional Justice. Cambridge: Cambridge University Press.
The Encyclopedia of Genocide and Crimes Against Humanity (Macmillan Reference USA, 2004), vol. 3, pp. 1045-1047.
