Transitional Justice Symposium: Connecting the Past with the Future of Consolidated Democracies

[Manal Totry-Jubran is an Assistant Professor of Law at Bar Ilan University.]

Transitional Justice opened a new window of opportunity to better understand the scope of concepts such as “Political Transition,” “Justice,” “Law,” and ”Liberal Democracies,” and how these interconnect in times of political change. In it, Teitel revealed the constructive and extraordinary role that the law and legal responses play in times of political transition. Suggesting an alternative approach to the relationship between law and political transformation (p. 4), she provided a normative account on the role that the law fulfills during such times.

She based her approach on two main grounds. First, she offered a positive understanding of the nature of accountability for past wrongs, exposing the relationship between historical accounts and their legal forms and practices. Second, her examination of political change  departed from traditional idealist and realist political approaches, and leaned towards a more contemporary and comprehensive understanding of transition. According to Teitel, transition is the movement from less democratic to more democratic rule, signifying acceptance of liberal democracy and the rule of law. Some transitions are radical, while others are conservative, and legal responses are constructed according to the essence of the change.

This post discusses these two grounds and explores their contribution to the development of the scholarship on transitional justice and human rights discourse throughout the last two decades. It also seeks to offer further thoughts and elaboration for future research.

Transitional Justice theory is based on the premise that the acknowledgment of past injustices contributes to the consolidation of sustainable peace and democracy (Arthur, 2009). Thus, it lends a distinctive framework for the analysis of the past’s power and its effect on the future as a basis for the protection of human rights. Its chief goals are the establishment of accountability for human rights violations committed by previous repressive regimes, the condemnation of the horrors of the past, the prevention of recurrence of abuses, and the affirmation of a commitment to human rights going forward. To achieve these goals, transformative regimes apply a variety of mechanisms, including criminal trials, truth commissions, reparation and restitution programs, justice-sensitive systems, and institutional reforms (Jung, 2014).

Initially, Transitional Justice emerged as a framework to address violations of human rights in countries transitioning from illiberal and totalitarian regimes towards liberal democratic ones. It focused on political transformation in Latin America, Eastern Europe, the former Soviet Union, and Africa. Traditionally, the study of transitional justice did not include multicultural colonial and post-colonial democracies that run repressive legal regimes towards groups within them. These are established democracies, some of which have liberal constitutional legal systems, such as New Zealand, the United States, Canada, Australia, and others. They share a legacy of human rights violations against the indigenous and marginalized ethnic and national groups within them (Balint, Evans & McMillan, 2014), whom they sought to assimilate into the dominant colonial (white) culture.

While illiberal countries violate civil and political rights in particular, these countries usually infringe on the economic, social, and cultural rights of the indigenous groups. Such infringements include displacement, unequal distribution of land, forced evictions, massive expropriations, marginalization, cultural assimilation (including religious conversion, separation of families, changes of gender roles) and systemic discrimination in education and employment. In some democracies, marginalized groups also encounter systemic police harassment and violence. The killing of George Floyd in the United States, which triggered subsequent protests in the United States and elsewhere against police brutality is an unfortunate example of harassment and discrimination. For years, these violations have caused social and economic disparities between the hegemony and marginalized groups of minorities, immigrants, and indigenous people, cutting them off from key decision-making positions.

Moreover, systematic violations exhaust the rule of law and create fragmented political entities. According to critical legal scholarship, the law plays a crucial role in justifying the systematic violation of rights, maintaining a status quo of inequality and hierarchy between groups in society. Thus, these violations are particularly disturbing, as they are committed under the auspices of the law and are embedded in governmental legal and political systems. However, Teitel offers a different, more positive perspective of the law’s role in society in times of transition, which can lead to political change towards liberalism.

By shifting the focus from traditional political criteria defining state transition to a broader understanding of movement towards liberalism, Transitional Justice established a foundation for the investigation of the power that transitional law has in various “non-transitional” countries (as defined by political realists). This change in focus enabled a more profound and broader understanding of continued and systematic human-rights violations, past and present, in all kinds of societies, including consolidated democracies.

This approach allows us to refocus on the fundamental issue at hand: the continuous infringement of human rights by repressive regimes, and how legal systems, regardless of their categorization as totalitarian or democratic, should address these violations. It draws attention to the power that the law has in transforming societies towards becoming more liberal and inclusive of the different groups within them. More importantly, this approach also acknowledges that the past of democratic states is very much connected to their future, and is vital in establishing just social order and shared citizenship.

I wish to take Teitel’s concept of transition further and argue that countries, especially multicultural colonial and postcolonial ones, are in constant transition towards either more liberal regimes or more conservative directions. Some of these countries are scarred by systematic ethnic animosity or religious intolerance, and their past actions are very much affecting their present and their future. These countries do not necessarily aim to achieve a political or peaceful transition, but rather wish to provide redress to victims, even in the absence of any transition (Hansen, 2012). They are often eager to create a political identity that is based on both a liberal approach of adherence to human rights and a shared sense of national identity.

The history of marginalized groups within multicultural colonial and post-colonial democracies is often hidden and unmentioned, and so is their suffering. Only the glorified history of the colonialists is part of the narrative of the state-building heroes. However, established democracies, as those mentioned above, have undergone political change in acknowledging the damage they have caused in the past. Some have begun using transitional justice mechanisms tailored to indigenous peoples’ demands, such as truth commissions and official apologies. For example, in 1991, Canada established “The Royal Commission on Aboriginal Peoples,” a truth commission for the investigation of the social, economic, and political conditions of the aboriginal people of Canada, and for the development of a set of recommendations regarding the First Nations and the Crown. In June 2008, the Prime Minister made a statement of apology to former students of Indian Residential Schools on behalf of the Government of Canada. Indian Residential Schools consisted of a network of boarding schools created to remove Indigenous children from the influence of their own culture and assimilate them into the dominant culture. These harsh institutions forcibly separated young children from their homes, families, traditions, and cultures, and in some cases, resulted in their death (Jung, 2014).

Similarly, Australia’s Human Rights and Equal Opportunity Commission (renamed as the Australian Human Rights Commission), investigated in 1995 the separation of Aboriginal and Torres Strait Islander children from their families (the ‘Stolen Generations Inquiry’) (Henry, 2015). Likewise, in 2008 and 2009, both Houses of the United States Congress recognized and apologized for the enslavement and racial segregation of African-Americans. These acts were preceded by the apologies of cities, churches, corporations, and institutions for their involvement in slavery (Davis, 2014).

Scholars have debated whether symbolic steps as above, provide any actual remedy for systemic atrocities. As Teitel explained, constitutional justice creates historical accountability of the state towards its citizens and acknowledges wrongs committed throughout the past (Ch. 3). In return, this is meant to mend the fragmented political community and allow for an inclusive process of nation-building that ultimately enables all people to feel like an integral part of the national identity (Kymlicka, 2010).

Alongside these mechanisms, I believe there is an additional legal response left out of the transitional justice scholarship to date, which should be developed further as a mechanism unique to consolidated democracies in transition. I refer to the enactment of anti-discrimination laws intended to prevent discrimination against particular groups of people and promote equality between groups and individuals. These laws vary by jurisdiction in relation to the types of prohibited discrimination (employment, housing, education, and other areas of social life), and also in relation to the groups they protect (by gender, ethnicity, nationality, disability).

These are often groups that have suffered from systemic discrimination and violation of their rights by the state, as well as by private individuals in numerous areas of social life. In fact, anti-discrimination laws are a manifestation of transitional justice, as the acknowledgment of past wrongs is central to the creation of a just future built on liberal values of equality for all. Such a mechanism is based on a prospective form of justice, made possible when all parties are willing to change their society and reconstruct it differently on more just foundations, seeking to arrange relationships within society so that all people are treated appropriately moving forward.

In this regard, I wish to challenge Teitel’s perception of the law in established democracies. In her view, the role of the law in such countries is forward- looking and continuous in its directionality, whereas the law in transitional periods is backward- and forward-looking, retrospective and prospective, continuous and discontinuous (p. 215). I believe that legal transitions in established democracies that seek to address systematic violations of human rights should be both backward- and forward-looking. In my research, I refer to this as “color-conscious remediation” (as opposed to “color-blind remediation”) (Totry-Jubran, 2019). The application of color-blind and history-blind policies that ignore systemic injustice may broaden inequality and lead to non-egalitarian consequences. Hence, acknowledging past injustices is fundamental in addressing present social challenges of marginalized groups, and more importantly, it is imperative for the establishment of a solid and just future.

Another important aspect of Transitional Justice is the focus on the collective and the aspiration for not only a democratic identity but also a liberal one. The rule of law, according to Teitel, means much more than fairness in the application of the law, separation of powers, and participation in decision-making; it is tied to a liberal political identity (p. 225). Such an understanding of the rule of law provides a path to rethink the boundaries of society, its membership, and the constitutional makeup of the state, and thus shed light on liberal citizenship rights.

Teitel also offered a way to reconstruct the collective across potentially divisive racial, ethnic, and religious lines, a means grounded in a political identity arising from society’s particular legacies of fear and injustice (p. 225). Broadening this notion, color-conscious remediation, based on transitional justice grounds, may help reshape the collective, as well as people’s identities, having been for many years the source of exclusion and discrimination from the polity. Teitel’s perception of justice as a juridical discourse of rights and responsibilities enabled the creation of a strengthened sense of shared identity, related to common membership in the national political community.

To conclude, as the discussion above illustrates, Transitional Justice provided an innovative framework for the understanding of the accountability of democratic states towards different groups (and not only towards individuals) within it. Consequently, I believe that it may also set the premise for the future development of a theory of justice of group rights and demands, which many consolidated democracies are contending with, today more than ever.