Rethinking Atrocity Justice: From Western Exceptionalism to True Universalism

[Thomas Obel Hansen is a senior lecturer in law and member of the Transitional Justice Institute (TJI) at Ulster University (UK). He is currently writing the book, Judging the Powerful in Global Accountability Regimes (forthcoming Routledge).]

Building on arguments developed for a research article soon coming up with University of Pennsylvania Journal of International Law, this post explains why the dominant paradigm for engaging justice for atrocity – known as transitional justice (TJ) – is no longer fit for purpose and why we need to re-think justice frameworks. 

The main argument set out here is that far from being the universal project of justice for atrocity it claims to be, it has become increasingly evident that TJ systematically excludes the crimes, interventions and complicities of Western actors from its scope of concern. In that sense, TJ links to dominant expressions of global order that endorse ideas about Western exemplarity, superiority and exceptionalism. 

TJ continues, by extension, to be heavily steered towards violence by Global South actors in conflict zones in the Global South. That is of course an important theme to explore, but hardly one that captures a self-proclaimed global project of rendering justice for the most serious crimes known to humanity.

Advocates, practitioners and decision-makers working in the area are well-advised to consider how atrocity justice can in practice and terminology become more universal, challenge the structures that enable impunity for specific actors, and better facilitate disruption of global power.

A Paradigm Focused on the Global South 

As has now become common wisdom, the contexts in which the paradigm applies and the promises of TJ have expanded significantly since it was introduced in the context of dealing with state-sponsored human rights violations in the transitions from authoritarian rule to democracy in Latin America and Eastern Europe in the 1980s and 1990s. It now covers a wide range of conflicts and injustices – often with no political transition in sight – and a growing set of thematic concerns, for instance gender issues, environmental harm and crimes by corporate actors. Despite the various boundaries ‘opening up’ in the TJ field – some still being ‘negotiated’ for inclusion – one boundary has always proven insurmountable (indeed hardly ever tested), namely addressing contemporary crimes by Western actors.

In effect, TJ has materialized as a framework for addressing justice concerns relating to serious violations by Global South actors in the Global South, almost as an “automatic and indeed necessary response” to conflict in these situations. TJ research is associated with a massive production of work covering the most ‘popular’ contemporary sites of study, such as Colombia (with about 4,000 studies published to date covering justice for atrocity in that country!).

Rather than openly articulating – and seeking to justify – this geographic orientation, scholars have sought to explain the field’s spatiality in more neutral or principled sounding terms, for example that TJ is driven by a concern “especially for democratizing or transitional states that are trying hard to shed the legacy of past violence and become full members of the international society of liberal states”. 

Current illiberal trends in the West and associated changes in global order raise obvious questions to that line of reasoning. For one, democratic backsliding in the West is pounding the very foundation of TJ as a supposedly liberal-cosmopolitan global project involving standard-setting as well as financial aid and other support by Western donors (and international organizations over which these countries often exercise substantial control) to address atrocity crimes elsewhere. The decline (or collapse?) of a Western-led, ostensibly, liberal international order – framed in recent decades through the idea of a ‘rules-based international order’ – and illiberal trends within the West underscore the need to rethink our approach to accountability, truth, redress and other core themes regularly treated in TJ.

How Transitional Justice Invisibilizes Conduct by the West

Despite its Global South orientation, TJ scholarship continues to be written mainly by scholars based in the West. Western-based researchers of TJ regularly travel to Global South countries to undertake field work. Without diminishing the value of such enterprises, it is worth noting what TJ researchers rarely do, namely to travel to Washington, London or Paris, to conduct ‘field visits’ to understand how Western government officials plan to address the crimes for which their governments are responsible. 

Whereas current TJ discourse is (for good reasons) highly focused on understanding victims’ perspectives, these perspectives have in effect been narrowed down to the voices of victims of violence by Global South actors in Global South conflicts (or conflict zones that could be broadly described as being outside, or in the periphery, of ‘the West’, such as the Balkans). In turn, there has been close to zero interest in this type of victim-oriented TJ research trying to understand the harms experienced by victims of crimes by Western militaries and its closest allies in recent places of conflict.

When TJ does indeed touch on the conduct of countries in the West, this usually concerns crimes and injustices that happened in a fairly distant past, typically relating to colonialism (and even that is often met with resistance in the West). What is rarely covered in TJ practice and discourse, however, concerns the conduct of Western powers in contemporary interventions, such as Iraq, Afghanistan, Yemen, Somalia, Libya, Iran and other countries where Western powers have intervened militarily – themselves, through proxy or in a combination – in recent decades, often with reference to the vague notion of a Global War on Terror (WoT) first declared by President George W. Bush in 2001. 

These contexts sometimes involve imposed regime change, not only amounting to a breach of jus ad bellum but are also regularly characterized by systematic violations of jus in bello, a topic otherwise near and dear to the heart of TJ. As Frédéric Mégret explains in a rare attempt to interrogate the WoT from a TJ perspective, “there is no single, comprehensive treatment of the WoT” from a TJ perspective, notwithstanding TJ’s otherwise “multifaceted, even all-encompassing, agenda”.

Instead, TJ often redirects the conversation to rendering justice for crimes by the type of actors that Western military interventions target. What has regularly happened in these contexts is that TJ zooms in on crimes by the ousted regime or other actors targeted by Western militaries (which of course can be serious), while crimes committed by Western forces (which too can be serious) are typically invisibilized, marginalized and/or contextualized. In the case of Iraq, for instance, it has been rightly suggested that TJ efforts have “paradoxically been made possible by its invasion, even as it rendered that invasion invisible as a motif of TJ”.

It is not only crimes in contemporary conflict zones committed by Western powers themselves that have been generally sidelined in TJ. Crimes committed on a massive scale by close allies of the West, such as Israel, similarly remain in the periphery of TJ discourse and – especially – theorization. As Matiangai Sirleaf writes in a recent attempt to challenge these conditions, TJ discourse “has never fully grappled with the ‘question’ of Palestine, which was a live one at its birth and remains a live one today”.

Resistance and Ideas about Exceptionalism

Few commentators have explored why TJ excludes contemporary crimes by the West. The most likely explanation may indeed be the simplest, namely that key players in the West resist accountability – and that TJ practice and scholarship has come to largely accept (or at least not confront) just that. 

Such resistance takes various forms. One involves simple denial: leaders in the West often suggest that the conduct in question does in fact not amount to a crime, or – if acknowledging that some crimes may indeed have been committed – that these were the result of a few ‘rotten apples’ in otherwise disciplined military forces (even when there is clear evidence of systematic abuse, as in the Iraq war). Sometimes, it is even proposed that Western democracies per se do not commit international crimes. Such propositions are often coupled with ideas that it is the ‘other side’ that is responsible for crimes (or the worst crimes): When crimes by the West or its closest allies are subject to scrutiny, government officials in the West have labelled this a “false impression of equivalence” between the conduct of the West and its friends and the ‘other’, as is the case with efforts to prosecute Israeli leaders for crimes in Gaza. 

These arguments reflect a broader view among influential voices in the West that atrocity justice ‘makes sense’ in countries where the rule of law is perceived to be weak (that is, supposedly, outside the West), whereas there is no need for globalized atrocity justice to interfere where the rule of law is perceived to be strong (that is, supposedly, inside the West), explained to the point by Malcolm Jorgensen here. Yet, domestic efforts at accountability for these type of crimes in the West and among its allies rarely result in meaningful accountability (see here regarding the US, UK and Israel). While these claims of exceptionalism are rarely articulated in such clear terms, at times it happens: International Criminal Court (ICC) Prosecutor Karim Khan was reportedly told by an unnamed senior leader in the context of arrest warrants being requested for Israeli leaders that “this court is built for Africa and for thugs like Putin.” 

Of course, the fact that the ICC ultimately did proceed to issue arrest warrants for Benjamin Netanyahu and Yoav Gallant demonstrates that occasionally the wheels of justice move forward even in the face of resistance from key players in the West. Doing so, however, can come with a heavy price for those involved (see here, here and here regarding US sanctions on ICC personnel and those perceived to support the Court’s investigations). While these events have received a fair amount of attention in other spheres, TJ has done little to contribute to meaningful debate. 

A New Vision for Atrocity Justice 

If this commentary is right in suggesting that mainstream TJ has come to reflect ideas about Western exemplarity, superiority and exceptionalism, then the most obvious way forward to create more equality in atrocity justice is to coin a new framework, rather than accepting TJ’s claim to dominance. Some basic principles that could inform this endeavour are suggested in the following:

A first guiding principle emphasizes true universalism: This implies that justice for atrocity applies to all, on equal terms. Atrocity justice should have as a key ambition to counter notions of superiority and exceptionalism, from wherever they may come, not embrace them. That does not necessarily imply that atrocity justice should look identical in form or operations across context, but rather that no one is exempt from the reach of justice by virtue of holding power. True universalism, however, is not only a question of what we look at, but also who looks. A future agenda for atrocity justice would embrace steps taken by countries outside the West to challenge the actions of the former – to promote more universality in justice. Encouraging developments have recently taken place on that note, including South Africa challenging Israel (and by extension its Western allies) before the International Court of Justice. A new agenda for atrocity justice would also encourage additional critical perspectives in academia by scholars from the Global South.

A second guiding principle embraces the idea that atrocity justice, beyond attending to specific crimes, should aim at broader structural change, especially with an eye on countering the recurrence of violations and the broader structures permitting these, for instance arms supply chains. At one level, the TJ agenda has done much over time to identify relevant forms of societal change and seeking to understand the impact that justice may have on these broader objectives. At another level, the ‘transitional qualifier’ in TJ often remains associated with ideas about turning the ‘other’ into the form of the West. As this post suggests, there is not much of a role model left for the West. Atrocity justice must let go of any assumption that ‘transition’ is associated with Western exemplarity. 

A third guiding principle holds that atrocity justice should do more to disrupt power. Although the concept of disruption has gained some traction in contemporary writings about TJ, that paradigm has nonetheless generally failed to perform the perhaps most crucial of disruptions, namely probing the West’s responsibility for crimes in contemporary conflicts. Going forward, a key ambition of atrocity justice is not only to challenge global power, but also to seek to disrupt the very dynamics that cause crimes by Western actors to be often invisibilized, marginalized and contextualized in broader debates about justice and global order.