Transitional Justice as Global Project: critical reflections

This article critically reflects on the ways in which the global project of transitional justice is channelled or streamlined in its scope of application. Using the categories of when, to whom and for what transitional justice applies, it argues that transitional justice is typically constructed to focus on specific sets of actors for specific sets of crimes. This results in a fairly narrow interpretation of violence within a somewhat artificial time frame and to the exclusion of external actors. The article engages themes of gender, power and structural violence to caution against the narrowing and depoliticisation of transitional justice. Transitional justice as a field and practice has grown tremendously over the past 15 years or so to include: the institution of international criminal tribunals, hybrid courts and the International Criminal Court (ICC); the development of a ‘right to truth’ and ‘right to reparation’ under international law; the transnational proliferation of truth and reconciliation commissions (TRCs); the expansion of transitional justice scholarship such that it now has a dedicated journal, research centres and academic programmes; and the birth of international and regional transitional justice NGOs. In other words, transitional justice has become a well established fixture on the global terrain of human rights. It entails an insistence against unwilling governments that it is necessary to respond to egregious violence and atrocity. The international community provides fragile new governments with important financial, institutional and normative support for reckoning with the past, attending to the needs of victims, and setting the foundations for democracy, human rights and the rule of law. Yet there also appear worrisome tendencies of the international community to impose ‘one-size-fits-all’, technocratic and decontextualised solutions. To what extent does transitional justice appear from on high as ‘saviour’ to the ‘savagery’ of ethnic, especially African ‘tribal’, conflict? Steeped in Western liberalism, and often located outside the area where conflict occurred, transitional justice may be alien and distant to those who actually have to live together after atrocity. It is accused of producing subjects and Rosemary Nagy is in the Department of Gender Equality and Social Justice, Nipissing University, 100 College Drive, Box 5002, North Bay, Ontario P1B 8L2, Canada. Email: [email protected]. Third World Quarterly, Vol. 29, No. 2, 2008, pp 275 – 289 ISSN 0143-6597 print/ISSN 1360-2241 online/08/020275–15 2008 Third World Quarterly DOI: 10.1080/01436590701806848 275 truths that are blind to gender and social injustice. And, in a post-9/11 world, transitional justice may increasingly be shaped by ‘the appropriation of the language of ‘‘transition’’ and ‘‘democratization’’ in furtherance of an apparently global project [that has] few effective international legal constraints’. All this suggests a timely need to reflect critically upon transitional justice as a global project. By ‘global project’, I refer to the fact that transitional justice has emerged as a body of customary international law and normative standards. I call it a ‘global’ project rather than an ‘international’ one in order to capture the three-dimensional landscape of transitional justice (local, national, global) and its location within broader processes of globalisation. It is a ‘project’ by virtue of the fairly settled consensus—a consensus that has largely moved past the initial debates of ‘peace versus justice’ and ‘truth versus justice’—that there can be no lasting peace without some kind of accounting and that truth and justice are complementary approaches to dealing with the past. The question today is not whether something should be done after atrocity but how it should be done. And a professional body of international donors, practitioners and researchers assists or directs in figuring this out and implementing it. In the first section of this article I critically introduce the way the scope of transitional justice is typically defined and implemented. In the remaining sections I employ the categories of when, to whom and for what transitional justice applies in order to challenge troubling features of its standardisation. I do not wish to deny that national governments and local actors are active agents in their own transitional processes. Rather, my concern is to call attention to the ways in which their horizon of options may be channelled or streamlined. Engaging themes of gender, power and structural violence, the article offers a cautionary investigation of the worrying ways in which the scope of transitional justice can be depoliticised and narrowed. The reflections undertaken here are intended to be suggestive in nature and to raise questions for further research. For the sake of convenience, I presume a fairly singular (Westernised) international community, acknowledging here its rather nebulous and frequently divided nature. Defining the scope of transitional justice It is not often remarked that figuring out how to implement transitional justice is necessarily a task of first determining the problem. Transitional justice seeks to redress wrongdoing but, inevitably, in the face of resource, time and political constraints, this is a selective process. Transitional justice thus involves a delimiting narration of violence and remedy. This raises, as Bell and O’Rourke put it, ‘fundamental questions about what exactly transitional justice is transiting ‘‘from’’ and ‘‘to’’’. Although there is no single definition of transitional justice, I suggest that predominant views construct human rights violations fairly narrowly to the exclusion of structural and gender-based violence. There is a privileging of legal responses which are at times detrimentally abstracted from lived realities. Little attention, if any, is paid to the role that established, Western democracies ROSEMARY NAGY