Updated: Apr 17
Transitional justice frameworks, although having a legal background, have increasingly overlapped in practice with projects of peacebuilding and democratisation. These frameworks emerged from the Second World War in the special courts of Nuremberg and Tokyo, and have since served as models for justice in post-conflict societies. Projects following this model, be they criminal courts or community-based reconciliation efforts, focus on non-repetition. Transitional justice, argue Gready and Robins in ‘From Transitional to Transformative Justice’, may be viewed as a ‘lens through which to approach states addressing legacies of a violent past. It seems appropriate, then, to take transitional justice to be a set of mechanisms - a toolkit - employed in post-conflict contexts. But what sorts of tools are employed shape the transitional justice efforts that are implemented. Dustin Sharp’s ‘Emancipating Transitional Justice’ argues that the set of tools serves to ‘deliver important liberal goods in post-conflict and post-authoritarian societies, including political/procedural democracy, constitutionalism, the rule of law, and respect for human rights.’ A transitional justice framework that sets out to implement a set of institutions perceived as tangible is limited in that it prioritises a preconceived understanding of these institutions. A now widely-implemented model, transitional justice frameworks have changed the initial responses to post-conflict societies.
In ‘an era of transitional justice’ we, more than ever, ought to be discussing the efforts to reconcile through a critical lens: where have transitional justice processes and mechanisms failed in the past, and where (even if largely only in part) have they been successful? Gabrielle Lynch, in her focus on reconciliation projects in Kenya, argues that contemporary critiques of the transitional justice model recognise it as a beginning rather than an end point. This, they continue, allows us to recognise ‘common operational shortcomings, such as insufficient funding, poor leadership and inadequate support.’
Indeed, we can learn through recognition of the flaws in past efforts to transition, to build peace, but this scope is too narrow. This one-size-fits-all categorisation of transitional justice fails to incorporate the huge breadth of transitional justice programmes, all different in nature. Of course, transitional justice projects have made vast and far-reaching judicial changes and have supported nation-building projects globally, from the Rwandan gacaca courts to Truth and Reconciliation Commissions from South Africa and Uganda to Canada. One recognisable flaw in the transitional justice framework is its conceptual basis within the field of law and the pursuit of ‘liberal peace’: the exported focus on individual responsibility and individual victimhood presented publicly in court, both often based around international crimes. This form of ‘liberal peace’ has its focus on the ways in which transitional justice aims to move away from authoritarianism or conflict towards a set of liberal, democratic institutions.
In the context of post-conflict societies a range of legal mechanisms were - and continue to be - implemented: from the law of war to, increasingly today, based upon international human rights law. This has predominantly been the result of global recognition that in dealing with post-conflict emergence societies often felt that national criminal law failed to do sufficient justice to the wide range of context-specific violences experienced. Compounding such perceived limitations in national criminal courts are contexts in which histories of violence have been long, overlapping and extremely complex: Rwanda, for example, experienced colonial rule that undeniably contributed to the stringent divisions that shaped the genocide of 1994. These divisions, in the Rwandan case, were defined by economic limitations. Legal limitations on what jobs Hutu or Tutsi groups could hold and colonial-era introductions of hierarchies defined by wealth all led to long-term economic divisions.
Is the appropriate response from transitional justice mechanisms, then, to confront past wrongs in totality? Louise Arbour, former United Nations High Commissioner for Human Rights, wrote the following:
[Transitional justice] must reach to - but also beyond - the crimes and abuses committed during the conflict that led to the transition, and it must address the human rights violations that pre-dated the conflict and caused or contributed to it. With these aims so broadly defined, transitional justice practitioners will very likely expose a great number of discriminatory practices and violations of economic, social, and cultural rights.
Arbour seems to suggest that, yes, transitional justice must be informed by the past completely. The trouble with this, however, comes about when we then turn our attention to economic forms of justice. How can transitional justice practitioners attempt to ensure economic justice for a whole range of timeframes, types of human rights violations, and perpetrators? Arbour aptly attributes failures to prioritise economic, social, and cultural rights through transitional justice mechanisms to international legal organisations viewing such rights not as necessary entitlements but as ‘aspirational expectations to be fulfilled by market-drive or political processes alone.’ It seems, then, that Lynch, although recognising that there are ‘operational shortcomings’ within transitional justice frameworks, does not sufficiently recognise that such projects fail at a conceptual level because they prioritise some rights over others. Transitional justice and corresponding mechanisms of international law thereby focus on gross human rights violations and delegate projects to ensure economic, social, and cultural rights to states that they leave in their wake. Such approaches have been informed by widespread assumptions that realisations of some rights and freedoms are less expensive and more quickly ensured than economic or social rights. Arbour argues against these assumptions in her writing:
In countries emerging from devastating conflict, the construction of a free and universal primary education system or basic universal health care infrastructure makes no more demands on the state than would the establishment of an even rudimentary criminal justice system capable of providing legal aid, court interpretation, bail supervision, timely and fair trials, and humane conditions of detention. All these require the state to act rather than refrain from acting, and all can be very costly.
The reliance of transitional justice on such a conceptual hierarchy of rights has a number of quite severe ramifications: amongst others, victims of economic injustices are not offered reparations and health care is neglected during nation-building efforts.Rooted in criminal law, (international or national) the legal paradigms that inform transitional justice frameworks should view economic, social, and cultural rights both as equally important and equally achievable as gross human rights violations. If understood to be a set of rights that are judicially enforceable, and tied inherently in this way to justice and law, economic rights do not fit within the prioritised categorisation. Economic rights, although human rights, find little space within the traditional transitional justice framework. Informed by a flawed understanding of what rights are feasible and worth protecting, the transitional justice framework frequently fails to implement safeguards for rights protection and does little in terms of material social change.
One need only look towards South Africa. The South African constitution is one of the most detailed in terms of the amount of rights that it promises to protect, be these economic, social, cultural or necessarily human rights. Arguably a country still “in transition” (whatever this really means) South Africa is yet to deal with land expropriation and subsequent reforms. Martin Plaut discusses these limitations and their implications: ‘there are few issues more difficult or more pressing in South Africa than land.’ In South Africa we see a much larger pattern in transitional justice practices across the globe. These seem defined by grand gestures of transitional justice in which harrowing truths of the past are made public while effecting little genuine change for individuals to feel that transitions are their own, or reflect personal priorities. Tshepo Madlingozi refers to such discontent with transitional justice frameworks:
What kinds of politics are (re)produced when a transitional justice expert seeks out the victim, elects to rescue him from his marginality, categorises him and represents him on the world stage?
Within this discussion of the victim and what Madlingozi refers to as the ‘transitional justice entrepreneur’, Madlingozi questions the types of victims that are produced by the transitional justice ‘industry’. It was the South African Truth and Reconciliation Commission in 1995 that first introduced the concept of ‘reconciliation’ into transitional justice processes, with the emphasis placed on forgiveness, forgetting, and reconciling with those we harmed and those who harmed us. While a noble aim, prioritising reconciliation has some serious drawbacks with reference to its failures to provide economic justice. What Madlingozi refers to as ‘the representational dimension of human rights’ has found footing in precisely that form of transitional justice which is anchored in reconciliatory aims. The key argument here is that the transitional justice expert, who hopes to export their own conceptions of empowerment, does so through speaking for and about the victim. This is also part of the prioritisation of gross human rights violations in transitional justice frameworks and the lack of attention paid to the provision of economic rights.
One of the responses that has emerged to the conceptual gaps in the transitional justice framework has been the development of a transformative justice discourse. Paul Gready and Simon Robins argue that this has been the result of the tendency for transitional justice systems to ‘[treat] the symptoms rather than the causes of the conflict.’ They go on to define the emerging discourse:
Transformative justice is defined as transformative change that emphasises local agency and resources, the prioritisation of process rather than preconceived outcomes and the challenging of unequal and intersecting power relationships and structures of exclusion at both the local and the global level.
The foundations of the proposed shift to transformative justice have been the inability of the transitional justice framework to recognise systemic, structural violence and persistent societal inequality, prioritising (because of the weight placed on gross human rights violations) singularly identifiable acts of violence. The question remains whether this perspective on justice in post-conflict societies as necessarily locally rooted genuinely brings about material change in ensuring the fulfilment of economic, cultural, and social rights. And beyond this, does the new framework address critically enough the argument made by Madlingozi above? It seems too easy; sort of like a quick fix to what has always been viewed as a complex, challenging and grand initiative. Gready and Robins recognise this: ‘transformative justice as an agenda for practice is work in progress.’ As a varied practice and a challenging discourse, discussions of transitional justice are often defined by conceptions of imported peace and what transition ought to look like, and so such discussions inevitably fail to be applicable to all contexts. This article faces the same barrier. The mistake, then, is to pursue any one-size-fits-all projects, including arguing that transformative justice at the ‘grassroots’ level is always the way forward. What is certainly lacking, however, is the seemingly consistent relegation of economic justice - viewed by local and international policymakers as simply impossible - and the prioritisation of gross human rights violations that is reliant on a rather simplistic victim-perpetrator binary.
Endnotes:  Lynch, 2018, 14  Lynch, 2018, 13  Lynch, 2018, 13  Gready and Robins, 2014, 339  Sharp, 2014, 150  Lynch, 2018, 11  Gready and Robins, 2014, 341; Arbour, 2007, 2  Sharp, 2014, 150  Arbour, 2007, 2  Arbour, 2007, 3  Arbour, 2007, 3-4  Arbour, 2007, 11  Arbour, 2007, 12  Arbour, 2007, 19  Arbour, 2007, 22  Plaut and Holden, 2012, 305  Madlingozi, 2010, 208  Madlingozi, 2010, 208  Madlingozi, 2010, 212  Gready and Robins, 2014, 340  Gready and Robins, 2014, 340  Gready and Robins, 2014, 342  Gready and Robins, 2014, 361
Arbour, Louise. 2007. “Economic and Social Justice for Societies in Transition.” Accessed January 23, 2023. https://nyujilp.org/wp-content/uploads/2013/02/40.1-Arbour.pdf.
Gready, P., and S. Robins. 2014. “From Transitional to Transformative Justice: A New Agenda for Practice.” International Journal of Transitional Justice 8 (3): 339–61. https://doi.org/10.1093/ijtj/iju013.
Lynch, Gabrielle. 2018. Performances of Injustice. Cambridge University Press.
Madlingozi, T. 2010. “On Transitional Justice Entrepreneurs and the Production of Victims.” Journal of Human Rights Practice 2 (2): 208–28. https://doi.org/10.1093/jhuman/huq005.
Plaut, Martin, and Paul Holden. 2012. Who Rules South Africa? Jonathan Ball Publishers.
Sharp, D. N. 2014. “Emancipating Transitional Justice from the Bonds of the Paradigmatic Transition.” International Journal of Transitional Justice 9 (1): 150–69. https://doi.org/10.1093/ijtj/iju021.