Transitional Justice Symposium: Transitional Justice 2.0–Rebooting Justice in the 21st Century

[Arnaud Kurze is an Associate Professor of Justice Studies at Montclair State University.]

Introduction

“It is certain, in any case, that ignorance, allied with power, is the most ferocious enemy justice can have,” James Baldwin wrote in No Name in the Street over half a century ago, describing his childhood memories in Harlem and events that painstakingly scarred his memory, including Martin Luther King and Malcolm X’s deaths (Baldwin 1972, 149). The question of delivering justice is still at the heart of contemporary social unrest not only in the United States, but also in many other countries and places around the world, such as Hong Kong and Belarus. The 20th anniversary of Ruti Teitel’s seminal work Transitional Justice, written during a time of tectonic geopolitical changes in global politics, still proves a timely oeuvre as it grapples with fundamental questions of accountability, reparations and the legacy of mass atrocities and political violence. Her work withstands the test of time, reflecting presciently on the impact of sociopolitical turbulences, including the implosion of the Soviet Union, the end of several dictatorial regimes, and genocidal atrocities, such as the conflicts in Rwanda and Bosnia and Herzegovina. The strength truly lies in her constructivist, interdisciplinary approach grounded in legal writing that carefully assesses the politics of justice and thus avoids any rigid or dogmatic assumptions. Two decades into our new millennium our world has evolved and so has the then-nascent field of transnational justice studies. This anniversary proves to be an excellent opportunity to ponder on some of the pivotal questions that are front and center in contemporary debates on post-conflict and post-authoritarian justice. In the following I demonstrate how societies have developed new forms of addressing past wrongdoings and have created a new vocabulary and tropes to provide new spaces for marginalized communities to deal with the past. Furthermore, I argue that the demand for a more expansive definition of transitional justice beyond the traditional application to states in transition from authoritarianism or following a conflict to democratic political institutions, but to also find utility in established democracies, has increased.

Time, Memory and Transitions

Before delving into these new spaces, let’s pause for a moment and reflect on the notion of time in post-conflict and post-authoritarian contexts. Early practice in the field did not focus expressly on a temporal axis, yet it was implicitly present in each transition context. In fact, temporality was a key factor when aiming to reform institutions, reckon with past wrongdoings, or reconcile antagonistic factions in war-torn societies. A classic model, the case of post-1945 Germany, serves as an excellent example of the challenges in respect to measuring time when implementing transitional justice strategies. It also illustrates the need to conceptualize time more dynamically and fluidly in relation to policy implementation during transitions. Time, according to Natascha Mueller-Hirth and Sandra Rios Oyola, should thus be understood in sociological terms, “which regards measurements of time and notions of temporality as defined by culture and society and examines how time is used to govern and to construct social meanings”  (Mueller-Hirth and Oyola 2018, 1). Initial attempts during Latin American democratization process and Central Europe’s liberal overture and eventual shedding of communist authoritarianism demonstrate the intrinsic relationship between power elites and institutional structures when implementing peaceful transitions and political change. More precisely, transitional justice does not occur in a political vacuum, but rather, is immersed in the politics of justice and transition processes were therefore often negotiated in the past. Amnesty laws or peace agreement negotiations underscore this conundrum (Teitel 2000, 53). In recent years, however, we have witnessed a veritable democratization of transitional justice practices. Technological advances have helped empower and increase the visibility of grassroots and bottom-up demands to deal with the past. The revolutionary uprisings across the Arab world in 2011 highlight these developments. Transition-related negotiations are not confined to political spaces occupied by old elites, but instead broader, public voices from within civil society have increasingly gained traction (For a detailed discussion on marginalized actors and new transitional justice spaces see Kurze and Lamont 2019). Let’s turn to some of these new spaces that have emerged.

Alternative Justice, Law and the Concept of Space

The rule of law as a normative concept to cope with mass atrocities, political violence and other forms of injustice has long served as a guiding principle in the field and continues to do so in societies grappling with past wrongdoings. Recent examples of retributive justice attempts, such as the United Nations special tribunal on the killing of former Lebanese Prime Minister Rafik Hariri (Simons and Hubbard 2020) or discussions on referring the case of Belarus’ election fraud to the International Criminal Court to enhance the support for Belarusians at other crucial platforms (Busol 2020), illustrate the extent to which legal mechanisms are grounded in fostering accountability to deal with the past. Yet these efforts do not account for growing grassroots demands to cast a broader net for ways to address trauma, suffering, and injustice. While accounting for past abuses through judiciary institutions, the legal space is only one of many planes, including increasing demands for cultural reparations and socioeconomic injustice, among others. In this respect it is noteworthy to reflect on marginalized populations, such as women, LGBTQ communities and youth. Public awareness of and scholarship on the particular struggle these groups are facing in transitional justice contexts have risen (Bell and O’Rourke 2007; see for instance O’Rourke 2013; Bueno-Hansen 2017, 2015). Oddly enough, these efforts, however much needed and welcomed, were already deeply grounded in Baldwin’s prose, which extrapolated on structural barriers in American society and disclosed racial fault lines and sexual taboos and challenges in the 1970s and earlier (See for in Baldwin 1972). The novelty of mainstreaming peripheral and marginalized perspectives lies in introducing these issues to the field of transitional justice and expanding also the geographical landscape of these problems. Since the uprisings almost a decade ago across the Middle East, the focus on scholarly attention to gender-related issues has also picked up (Kurze 2020; For an early account on LGBT issues broadly speaking, see Massad 2007). In this context, I have explored Foucault’s concept of heterotopia, so called spaces of otherness. While he defines them as counter-sites and juxtaposes them to utopias in society, I go further, posing the question whether “these efforts constitute more than just a form of resistance, creating an alternative space for particular social groups,” such as LGBTQ communities (Kurze 2020, 214). In spite of the empowering potential of these spaces, challenges persist. In my forthcoming book, I point to the double-edged sword of, for instance, gay dating apps in Morocco. During the Corona-virus pandemic, tracking technology for public health purposes to contain the spread of the virus has led to repressive measures against Moroccan gay men as they were outed due to location-based meeting apps on their cell phones. The online space of dating apps — which initially showed the degree of their resilience and became a refuge in a society hostile towards non-heterosexual behaviors and beliefs — quickly became a trap to track and ostracize members of the gay community (Kurze 2021, forthcoming). Marginalization, however, is far from being a phenomenon that occurs in authoritarian or illiberal states. Liberal democracies also have a track record of ignoring the voices or marginalized populations and whitewashing the past, which is discussed below.

Decolonization of Justice in Democracies

In spite of the expanding local lens that transitional justice studies has applied over the past decade, even destabilizing the established paradigm by local applications (Shaw, Waldorf, and Hazan 2010; see also Roht-Arriaza and Mariezcurrena 2006) it has generally been preoccupied with “extraordinary periods of temporally and geographically-bound transitions”  (Kurze and Lamont 2021, forthcoming). And as a colleague and I have argued elsewhere: “This paradigm is further reproduced by a methodological worldview in which scholars working in the field create new transitional justice measures to replace old approaches aimed at solving transition dilemmas” (Ibid. 2021, forthcoming). Consequently, issues pertaining to colonial injustice and hegemonic power structures such as race and social injustice, remain, too often, neatly tucked away, under a big rug of hypocritical amnesia, especially in liberal, democratic states. Yet rising awareness of these issues is slow and community voices, empowered by collective action and growing public awareness of structural and systemic injustice are some of the factors fueling this change (King and Page 2018; Park 2015). These issues are not new and almost seem like a déjà vu, particularly when looking at other victims, such as sexual minorities. While the gays were relentlessly persecuted under the Nazi regime during World War II, it took almost half a century for the LGBT community to receive any form of recognition. In fact, after many gay prisoners were released from the camps after 1945, the repression didn’t stop in the new German state founded on liberal and democratic principles. Anti-sodomy laws, established under Chancellor Bismarck in the 1870s, remained intact and were only completely abolished in the 1990s (for an in-depth account on this issue see Kurze 2019). Ultimately the legal framework that oppressed a sexual minority came crumbling down. What led the way, however, was a concerted grassroots effort and the conquest and appropriation of public spaces to render invisible suffering and pain tangible to society at large. The sequence of monuments and commemorative sculptures, plaques and mentions in museum spaces all helped create a new, deliberate space, empowering the originally voiceless and marginalized.

Conclusion

In closing, the groundwork Teitel has laid with her oeuvre in terms of embracing a larger, multidisciplinary vision beyond the legal background and focus on the rule of law was an important impetus to a dynamic field of study that continues to grow and expand in new ways today. And, of course, we ought to underline Teitel’s prescience, illustrated by her relentless endeavors to use broad brush strokes to paint and map a topography of remedies to underlying issues of societies grappling with past atrocities and human rights violations. These early efforts underlined the complexities we face when dealing with the past, ranging from amnesties to trials. I pursued two primary objectives with my essay reflecting on Teitel’s work. First, to demonstrate the dynamic nature of transitional justice processes over time and the need to adapt to new, emerging challenges. Second, in spite of the essential role law has played in our societies in advancing victim rights and fostering accountability, legal norms are only one of the many facets to empower marginalized or voiceless communities. It is high time for us to face and remind ourselves of the scars and pains that haunt our memories. Only in so doing, will we be able to explore alternative pathways to help societies confront and overcome their dark chapters in history. To do so also requires deconstructing traditional paradigms and introducing fresh, emancipatory ideas centered around tropes such as gender, race and social justice. Daring to speak up and breaking old taboos, such as James Baldwin, a visionary of his time, did in his vanguard writing are crucial to foster change. The challenges, inevitably, lie in confronting these hurtful and traumatizing moments of our history to provide future generations with the tools to be able to critically examine the past and to create a meaningful understanding of the wrongdoings in order to fuel equality, respect and tolerance in our societies. The pursuit of justice is a long, arduous road, but recent global efforts to decolonize and democratize this process represent a silver lining at the horizon that is promising and encouraging.