Symposium on Reframing Transitional Justice: Transitional Justice’s “Unit of Analysis” Problem

[Frédéric Mégret is Full Professor and Hans & Tamar Oppenheimer Chair in Public International Law at McGill University, Faculty of Law.]

As transitional justice as a paradigm enters an age of maturity, it is no wonder that this is prompting more reflexivity. It may be ironic that the critique – biting as it sometimes may be – arises at a time when TJ has perhaps never been more vulnerable to headwinds, yet this is on another level only to be expected: in part the decline of TJ is linked to its long-simmering intellectual crisis. One can think of the critique of TJ in two modes. On the one hand, what TJ does and what it could do better. On the other hand, what has been notable in the recent wave of critique of TJ has been not so much what it does as what it leaves out. Reframing Transitional Justice: Innovations, Boundaries, and Refractions, edited by Mark A. Drumbl and Kirsten J. Fisher, a book as diverse as it is far-reaching, straddles that divide and is on the frontline of efforts to reenergize transitional justice intellectually.

The clock is arguably rapidly ticking on a project that was born in a different era and against the background of a simpler political narrative, and that sometimes seems to carry on as if its historical, ideological and material circumstances had not fundamentally changed. Of particular note have been a series of critiques excoriating transitional justice for its grounding in or at least failure to problematize colonial and racial legacies. Tiffany Atkins compellingly picks this point up in her contribution to Reframing Transitional Justice, focusing on justice in the United States for extensive histories of racism, and retains some hope in TJ’s possibilities, notably remedies of abolition when it comes to governmental programming that has proven inimical to Black Americans. The original sin of transitional justice is that it always imagined a return to the liberal status quo. Whilst this is admittedly a notable improvement from war, genocide and tyranny, there is much anxiety about what it inevitably tends to reproduce. I take those developments as already axiomatic to what it means to think about TJ today and take TJ as a practice and ontology that always already carries the seeds of its own undoing.

In this short reflection not simply on but with the collection edited by Drumbl and Fisher, I want to take a connected but slightly different tack, one focused on TJ’s implicit unit of analysis and how it also fundamentally constrains the ability to see itself for what it is. I suggest that between the particulars of what TJ does more or less well and the gaping hole of what it problematically fails to do, is the question of what TJ implicitly constitutes. The question of the appropriate frame of reference here is more generative than is typically thought. It highlights TJ as a form of narrative which has always already settled for a particular spatio-temporal framework that really ought to be a central bone of contention. In suggesting that TJ is less about what it sets out explicitly to do than it is about what community of reference it implicitly constitutes, I depart from well-worn debates about the degree of (domestic) social inclusion in TJ processes to press the hard question of whether the predominantly national framing of TJ is even the right one.

I begin by more meta-thoughts on what it means to reflect critically about paradigms before arguing that “methodological nationalism” has turned out to be perhaps TJ’s most persistent blind spots.

Transitional Justice is Dead, Long Live Transitional Justice?

There is little doubt that transitional justice was invented as an agenda for a particular time and even place. It was only ever as useful as paradigms are useful: a way of tying together a range of ideas that could make sense of the world but might not always – and might even turn out to be positively distracting. Like all such projects, it has also long been at risk of excessive institutionalization, technocratization and sterilization. Reframing Transitional Justice points these out clearly. But there is also something potentially facile about highlighting all of the things that transitional justice has not done, as if it was ever more than a fairly narrow prescription for societies coming out of traumatic episodes. The challenge, therefore, is how to produce a critique of TJ that does not rely on a strawman version of it or assign it unrealistic goals that it is bound to fail to reach. By the same token, the challenge is to not undersell TJ as so minimally modest that it obtains meagre successes but only at the cost of always disappointing for its lack of ambition. 

The prescription for good critique, then, is tied up in fragile assumptions about what transitional justice is or ought to be as a paradigm. Compounding the challenge of assessing where transitional justice finds itself, the concept is notoriously amorphous and capacious at the same time and likely to mean different things for different people. C. William Vardy elucidates this amorphousness in his contribution to Reframing Transitional Justice by showing how Orban in Hungary and Modi in India have availed themselves of TJ discourse in narrating various initiatives they have undertaken. One of TJ’s strengths is that it has partly escaped legalization (to this day, there really is no such thing as “transitional justice law”), but that also makes it hard to pin down once and for all. By comparison, what “international criminal justice” is, for example, has always been clearer, which may be one of the reasons for its intellectual ascendancy (some would say domination) at least in the minds of lawyers in the space it shares with TJ. Finally, it may be that TJ’s limitations are not inherent but merely the result of insufficient political will so that there is a risk of blaming TJ for things that are ultimately beyond its purview. It matters to producing a cogent critique of TJ that one keeps all those elements in mind.

In the midst of these challenges, it bears emphasizing that all paradigms are ultimately about highlighting a small set of issues and variables as relevant at the expense of others. In the case of transitional justice, this has meant: (i) emphasizing the uniquely problematic character of accumulated legacies of tyranny, human rights violations and war; (ii) highlighting the inadequate character of ordinary institutions of justice to the task of addressing those; and (iii) proposing a range of bespoke and exceptional alternatives to said institutions of justice. TJ therefore is only so useful as one finds the basic problem it defines – and not just the solution it offers – worth attending to. It certainly constructs itself deliberately as an exceptional liberal cure to a liberal problem and should be understood as part of a useful and thriving conversation within that particular tradition. Paradigms, of course, are only so useful as this narrowing of the frame turns out to be useful. Their whole point is that they leave some things on the side in an effort to channel human attentions.

It may be, then, that critiquing transitional justice for not being a more radical overhaul of society is an interesting but ultimately not always judicious exercise: transitional justice was always a deliberately limited endeavor almost destined to leave some issues untouched and some constituencies unsatisfied. It is working exactly as planned. Blaming transitional justice for not doing things it was not tasked to do may be as useful as blaming international criminal justice for not single-handedly bringing peace, accountability, truth and prosperity. It is not nor was ever meant as an overall agenda for justice and one might think there was some risk of confusing it with such. At best, it was there to kick-start liberal processes of reckoning that would in turn create the conditions for the broader pursuit of justice; trying to achieve both those goals simultaneously might involve at best putting the cart before the horse; at worse, obtaining social change through the expedient of exceptional measures that might not pass the test of time. Here, calls by Drumbl and Waters for modesty seem apt. 

Yet it may also be, and this is the tantalizing promise of this book to “defrock the politics of transitional justice”, that transitional justice even properly understood as purposefully and deliberately narrow does more harm than good; in other words, that its paradigmness is obtained at the cost of its irrelevance to the more fundamental justice issues of the day. It could be, for example, that the paradigm – even taking seriously its quality as a paradigm whose function is to, basically, dumb abject complexity down – somehow becomes too narrow for its own good. This could be partly accidental in the sense that some things were simply omitted in the paradigm’s genesis or, more worryingly, it could be an original sin, one that taints its entire promise. Drumbl and Fisher’s book is upbeat about what can be achieved to make TJ less “stale”. It aims to do nothing less than reframe transitional justice in an effort to “reboot” it. It is thus sympathetic to the notion that the paradigm can be rescued from its limitations whilst remaining recognizably paradigmatic. Others may think that the time to jump ship is long past and that we should reexamine anew what should be the defining problem of our era, if not transitions.

Of course, academic enthusiasm about exploring the finer outer-edges of the transitional justice paradigm is not synonymous with its real world and historical relevance. There may even be an inverse relationship between the two as anxieties in dour times are compensated by a surfeit of analysis. In a related area, ever more sophisticated scholarly investments in international law seem woefully unrelated to its actual influence. Still, this may be precisely the moment to push the paradigm beyond its predictable origins and moorings. In unpacking the expression’s continued usefulness, the “transitional” qualifier has always done the heavy lifting. It denotes a space of specific, intermediary justice that falls short of being a comprehensive formula for justice. This was always perilous and has left transitional justice vulnerable to the reproach that it risks sacrificing “justice” on the altar of “transition.” It did, however, point to a particular non-static view of justice focused on paths rather than ultimate grounding, the need to create conditions for progress, and the importance of resetting normal deliberative conditions after fundamental disruptions.

The question has always been what the transition is to. We have a reasonable idea of what it is from as something that any society would clearly want to avoid, including a familiar litany of political and social scourges (genocide, tyranny, war). It is easier, however, to know one would not want a repeat of these ills than to devise a comprehensive vision of the end-state of transitional justice. A situation of non-genocide, non-war or non-tyranny is certainly worth aspiring to; but it can quickly fall short of peoples’ rapidly changing aspirations (one is reminded of how otherwise popular war-time leaders have often been swiftly replaced post-war by leaders with a more aspirational disposition). It has a recognizable tendency to open a veritable pandora’s box of pent-up demand for justice. Before long, transitional justice loses distinctiveness as it merges with the general struggle for justice.

Transitional Justice’s Methodological Nationalism 

I wonder, therefore, whether there might not be other ways in which one might think of transitional justice as transitional, that would neither be simply about a disincarnated and somewhat desultory “never again” nor about the open-ended embrace of justice that should be the shared aspiration of most societies. In that respect, I want to suggest that the hidden stake of transitional justice may be less the temporal move from a past to a future, as commonly understood, than a more spatial move in terms of how one relates to the world. All societies that have undergone transitional justice processes, whatever their differences and the different forms of injustice they experienced, can be said to be societies that at one point had sealed themselves off from their exterior, turning their back on international communal values. At the same time, the very production of injustice often turns out to have been powerfully supported from outside, including by some of these same international norms. In other words, the foundational problem of TJ is not merely how to transition societies in and of itself, but the degree to which their global environment is both part of the solution and the problem.

Transitional justice, in that respect, is a reckoning with oneself, but it is also a reckoning with one’s complex place in the world. This has become ever more evident not simply in the trivial sense that transitional justice itself has become globalized as an export/import industry or in the sense that TJ increasingly implicates international norms and institutions, but in the deeper and more intriguing sense that transitional justice has long problematized (something that it shares with constituent processes), its implicit “who?”: who is behind TJ? Who builds memory (see Gómez-Uribe and also Moffett herein)? Who is the subject of reference? Who gets to constitute a society in transition? That is in the familiar sense of who participates but it is also in the more complex sense of who organizes, who commandeers, who foots the bill, who is accountable and in whose name? 

The typical answer has been that TJ is implemented in the name of “victims.” This is a notion taken from the vernacular of human rights which is internally ambiguous, poses problems of endless regression and is a rather thin layer on which to build a comprehensive project for a new society. What has been missing is that the society in which TJ unfolds is itself what needs to be problematized. Most notoriously, societies in transition have been thought of as national societies, almost invariably taking for granted that the state and whatever lies within it is the appropriate unit of analysis. This is evident in the standard practice of itemizing TJ experiences as so many national experiences: Argentina, South Africa, Chile, Ethiopia, Germany, the former-Yugoslavia, etc. TJ thus appears to have suffered from a rather nasty case of methodological nationalism bias that has long been identified in a variety of social sciences as a foundational problem. 

This of course makes sense to a degree: many traumatic historical episodes have indeed been somewhat national, and the state is often the implicit stake of transitional justice because of the way it is its excesses that have wrought havoc and injustice. The risk, however, is that one will confuse the common with the necessary unit of analysis and underestimate the degree to which thinking of TJ in national terms pre-empts certain reckonings and emancipatory possibilities. A further risk is that in seeing episodes as purely or largely national that are inscribed in much broader trajectories, that TJ will provide only an imperfect and truncated transition, offering a merely national answer to what is in reality a much broader problem. And the risk is that in offering up state-building as the antidote to state collapse, one will merely reproduce the repertoire of nationalism and statism which arguably got us into this mess in the first place. To be sure, nationality in an era of virtuality is a tricky construct – several chapters in this edited collection – ones by Murphy, Espíndola, Lamont, and Guntrum et al – actively engage with the dilemmas of technology for TJ.

This, then, is one of the paradigm’s most defining blind spots. In what is left of this contribution, I want to suggest three specific ways in which TJ potentially transcends its normal national framing, namely ways in which it can or ought to be seen as (i) international, (ii) transnational and (iii) global. First, much of TJ has been or ought to be seen as specifically international. This is true first and foremost of efforts at inter-state peace and reconciliation, an area that is rarely analyzed as part of TJ but should be understood as part of its broader genealogy. For example, the multi-decade effort by Germany to settle Second World War scores with Israel, France or Poland should count as a form of TJ involving as it did war crimes trials, negotiations for compensation but also political, cultural and social reckoning. The same is true of efforts by Japan to reconcile with China, Korea or the Philippines.

Highlighting inter-state efforts at reconciliation as part of the TJ corpus enriches the sense that international episodes of violence have often had devastating consequences for societies across the board and underscores deep and sometimes resurgent international faultlines. It highlights the fact that no society is entirely a society onto itself. It also suggests that peacemaking is not simply a stern inter-state exercise in diplomacy and geopolitics, but one that entails, fundamentally, justice issues. In effect, some of the tools that are characteristic of TJ domestically (e.g.: war crimes trials) were first pioneered, however imperfectly, in the inter-state context (e.g.: the Nuremberg and Tokyo trials). Much could be gained by a reexploration of inter-state peacemaking using the repertoire of TJ and vice-versa.

Inter-state TJ can lead to new modalities that mix elements of TJ with older elements inherited from the tradition of diplomatic protection. For example, some states have been called upon to negotiate on behalf of victimized populations on their territory. This was most notably in the case of Israel which negotiated with Germany (retroactively, as it were) on behalf of Jews persecuted by the Nazi regime. More recently, South Korea undertook to represent so-called “comfort women” in negotiations directly with Japan whilst Namibia negotiated on behalf of the Herero with Germany about the 1904 genocide. These episodes have not always been felicitous: the last two steered consistent backlash against South Korea and Namibia for arguably misrepresenting the claims they had been entrusted with and shortchanging victims. Nonetheless and for our purposes, they underscore the uniquely connected character of international and domestic TJ.

Ultimately, beyond characteristically inter-state episodes of war, many episodes that are otherwise commonly understood as fundamentally “national” can be reimagined as, in fact, themselves international. The Rwandan genocide stands as a good illustration, not only in that the response to the genocide was overdetermined by the international community’s lack of intervention but because history tells a story of external interference, colonialism and racialization that prepared the genocide. In effect, the ensuing decades-long rift between Rwanda on the one hand and Belgium and, particularly, France on the other (leading to a variety of commissions of enquiry, diplomatic negotiations, apologies, etc.) ought to be apprehended as part of the legacy of transitional justice. In fact, the failure to see the hand of the outside world in the events that transpired in May 1994 has long been denounced as one of the foundational flaws of the ICTR.

Second, TJ is increasingly transnational. This is true in ways that have now been documented for a while, notably through the input and participation of diaspora members in places such as Liberia (see also Mrewa’s powerful chapter on gender-based violence in Liberia in Reframing Transitional Justice). But that participation alone does not do justice to the transnational complexities of TJ. It is not simply that diasporas mobilize for and occasionally participate in TJ efforts in more or less anecdotal ways, but that their very position abroad problematizes what it means to be part of a society in transition. Transitional justice thus operates not only against the background of stable assumptions about the nation state but as a way of problematizing it and extending TJ extra-territorially to communities of suffering.

In earlier work, I emphasized the extent to which universal jurisdiction for example is better understood as a function of the seeding and activating role of diasporic mobility in the host state, which is often called upon to serve as an objective relay for incomplete or absent TJ efforts in the state where atrocities were committed. In a forthcoming piece in the International Journal of Constitutional Law, I argue that, beyond universal jurisdiction, active and passive personality jurisdiction are underestimated components of the process of transitional reckoning, as illustrated by the case of dual nationals in Argentina caught up as victims or perpetrators during the “Dirty War”, leading Italy, France, Spain and Germany among others to spearhead a range of long-distance transitional justice initiatives.

Notably, the issue has surfaced in a range of transitional justice contexts in terms of what to do with “exiles” as a sort of characteristic if still largely implicit interrogation about who belongs to the transitional effort. If nothing else, traumatic episodes provoke departure and flight. Having stayed put and lived through a dictatorship or a war in situ does not seem that it ought to be a requirement of participation in TJ, although concerns may arise that émigrés have been gone for too long and do not stand to be implicated as much as those who stayed “behind”. This has given rise to debates, from Argentina to Colombia, about whether exiles should be represented in TJ processes and be in a position to claim reparations. A distinct sensitivity has emerged that sees exile as a sui generis human rights violation, a normatively cogent position given the centrality of pushing people out to records of oppression. 

Questions of return also loom large, from Bosnia (see Campbell herein) to Palestine, emphasizing the extent to which TJ radicalizes claims about place and belonging. The reclaiming of stolen cultural and archeological property across borders – whether it be stolen artwork by the Nazis or seized cultural artefacts in colonial Africa (see Lixinski herein on the Lusosphere) – has long emerged as a discrete motif in TJ processes. To that one should add the question of stolen property (including real estate, particularly in Central and Eastern Europe but also of Armenians in Anatolia), in ways that emphasize the persistent long-distance and private ramifications of transitional justice. In short, peoples’ movement and the role of diasporas are not just a quirky add-on to an otherwise primarily and legitimately domestically-bound process; rather, in challenging the fixity of the body politic affected they extend the reach of TJ deep into the transnational realm.

Third, TJ is in not unsignificant ways increasingly unfolding in global ways that entirely transcend its conventional state boundaries. Consider the demand for reparations for slavery which at times seemed to emerge within particular national contexts, most notably in the U.S. Clearly, though, the origin and legacies of slavery, as an institution born from the transatlantic trade, far transcend any particular state. Even though domestic reparations debates are well worth having, ultimately any meaningful effort at redressing the injustices of slavery must address its global roots. This is why the CARICOM reparations process is addressed by a number of Caribbean states to a variety of European states in ways that radically diminish the status of the issue as a purely domestic one (indeed, why would the Jamaican state, for example, shoulder alone the transitional justice burdens of slavery?). Even the focus on reparations, important as it is, does not do justice to the broader dimensions of racial justice in all its dimensions including as they increasingly challenge borders (for example through the demand that migration be allowed as a sort of compensation for colonial legacies).

A number of contemporary mega-events clearly transcend the framing by any particular state. Whilst many forms of terrorism have taken on global forms, for example, so have excesses of the response to many of them leading to suggestions that transitional justice for the so-called “War on Terror”, for example, should itself be global. And if there is one day to be a transitional justice to deal with the legacies of climate change, it will surely ill-afford to be merely national.

Some Concluding Thoughts

In this post I have cautioned against a facile critique of TJ that faults it for not doing things that are beyond its remit even as I have insisted that we should also be attuned to what TJ deliberately leaves out. Somewhere in between, I have argued that we should pay particular attention to what TJ does-without-doing, namely the sort of implicit political space of reference it constitutes over and over again. I suggested that, not unlike many socio-legal interventions born from the liberal project, TJ has generously espoused the assumption that the state is its natural unit of analysis. I then pointed at ways in which both the issues that have led to a demand for TJ and indeed, if one pays attention to them, the modalities of TJ itself have increasingly become post-national and that much could be gained by deliberately accelerating this movement to be more in tune with the world.

Therein, however, lies a tricky lesson for thinking critically about TJ. In some ways, TJ will only transcend its national-state framing at the risk of moving dangerously far from its paradigmatic base. Take the example of climate change. TJ can provide ideas on Nature. Rachel Killean picks up on some of these in this volume.  TJ can also surely provide ideas for the climate justice movement but it is dwarfed and even provincialized by it. At such a level of generality, it is far from clear that TJ has much to bring to the conversation that is specific, that survives the change of scale, or that is not addressed better by a number of more native global justice discourses (global justice, environmental justice, racial justice, etc.). At best, the risk is that the global infrastructure of climate harm will be hidden for what it is; at worse, that TJ will provide yet another liberal expedient to defer addressing the limitations of liberalism itself. Transitional justice’s transcending of its limitations may well, paradoxically, be its undoing.

Photo attribution: Kaley Dykstra on Unsplash