Symposium on Reframing Transitional Justice: With or Without the State? An Anarchist Reading of Reframing Transitional Justice

[Julia Emtseva is an Assistant Professor of Law at HEC Paris and co-founder and convener of the ESIL Interest Group on Critical Approaches to International Law.]

A quiet pattern runs through the third part of Reframing Transitional Justice – Refractions: Gender, Race, Authoritarianism – that I had the honor to comment on, where the authors ask how transitional justice (TJ) refracts the iniquities of patriarchy, white supremacy, and democratic backsliding. Read together, these four chapters share more in common than their individual critiques. What was most striking for me is how they locate the failure of TJ not just in its methods or actors, but in its attachment to the state. Each contribution, in its own idiom, arrives at the same suspicion that the institution that TJ keeps turning to for repair is frequently the source of the harm. I want to take that suspicion seriously, and think alongside the authors to push what the editors also identified in their introduction as lacking (p.18) – the critique of the state. 

Tiffany D. Atkins’ chapter on the American family policing system is, perhaps, the most daring critique of the state of Part 3. Atkins describes something that had not been considered under the umbrella of TJ – the state removal of children from racially subordinated families – and argues that, in fact, it very well belongs to TJ. While doing so, Atkins also highlights the important shortcomings of TJ, such as “its myopic – and often exclusionary – views of ‘transition’ and ‘justice,’” and that TJ frames itself as “a set of tools only available for states amid a ‘formal transition’ from one political reg ime to another” (p. 221). That temporal and geographic gatekeeping, the author notes, makes TJ “impossible to apply when temporal or geographical constraints were present” (p. 229). Atkin’s remedy to these shortcomings is quite provocative – abolition. And this remedy makes total sense to me because where a state institution is complicit in the harm, asking that same institution to administer the remedy is incoherent. Some institutions, as the editors describe Atkins’ argument, are simply “irredeemable” (p.12). And crucially, abolition for Atkins is not just destructive or dismissive, “but it is also about building up, about creating new institutions” (p. 238).

Loyce Mrewa’s chapter on Liberian peace huts goes in a similar direction but from a different starting point. Mrewa describes the peace huts – women-led adaptations of traditional palava huts that had historically excluded women from leadership – as non-state justice mechanisms addressing gender-based violence that the state justice system left mostly untouched. This contribution refuses the clean conflict/post-conflict dichotomy, showing that conflict-related gender violence “percolates, evolves, and persists in the post-conflict period as everyday violence” (p. 259) rather than as the exceptional, time-bound phenomenon that TJ likes to imagine. The peace huts were effective where the state was not. Mrewa, however, is admirably unromantic about them. They “supplement the state’s work,” the author notes, and the absence of formalized partnerships between various actors involved creates gaps and “power struggles” (p. 249). This is an honest picture of what non-state justice can and cannot do when the state remains the reference point.

Kirsten Campbell’s chapter is the theoretical heart of Part 3. Her case is the Women’s Court of the Former Yugoslavia, a feminist non-governmental tribunal held in Bosnia in 2015. Its participants had catalogued, in consultations, six failures of institutional legal justice: impunity, the gap between norms and application, inadequate witness protection, intimidation, the stigmatization of rape survivors, and derisory reparations (p. 266). The Women’s Court’s response to these failures was a model of people’s justice – “informal and non-state justice processes that aim to change existing social orders” (p. 267). Campbell’s insistence is that feminist justice requires changing the whole understanding of how TJ should be organized. Her reading of the UN Secretary-General’s July 2023 Guidance Note on TJ is that formal institutions still imagine TJ as a driver for building “a liberal nation-state as the outcome of social transformation, which the ‘international community’ leads” (p. 278). In other words, even TJ’s self-declared radical turn cannot think beyond the state as destination, and this needs to change.

C. William Vardy’s chapter adds some more complication to the TJ state-centricity through two detailed, aparadigmatic case studies of TJ in Hungary and India. Vardy shows that the same TJ vocabulary – namely, truth-telling, human rights violations, punishment, victim identification – is being deployed by governments to justify democratic backsliding rather than recovery from it. The author questions, through the work of Kirsten Fisher, whether “liberal democracy ought to be a necessary aspiration of transitional justice or whether this itself limits the organic transitions … open to the pursuit of justice” (p. 285). Vardy is the reason this cannot be a simple story about virtuous communities and villainous states, and I will come back to it.

Let me now come back to the pattern I mentioned at the beginning of this commentary. In Part 3, we see that Atkins reaches for abolition; Mrewa documents justice outside the state; Campbell holds up a non-governmental tribunal against a UN frame that cannot imagine anything but a liberal nation-state; Vardy shows the state turning TJ’s own tools against the democratic ends that TJ assumes. All four contributions identify the state, together with its institutions, liberal telos, monopoly over what counts as a transition, as the thing that keeps going wrong. But the authors do not offer a framework or a name for their shared diagnosis (and it was not their task or intention), and here is where I hope I could be somewhat helpful. I believe that there is such a framework, and it is one the field has almost entirely ignored: anarchism.

Anarchism is a political tradition that questions the state as a structural form and a concentration of authority that reproduces domination. It has a capacity to translate the critiques of the state and authority into ideas, including ideas for justice that could invigorate the stagnant field of TJ. To look for these ideas, we could look even deeper – into prefigurative politics – an anarchist tradition that insists that the means of political action must embody the ends they seek to achieve. Anarchism and prefiguration could offer a method of constructing justice rooted in heterarchy, mutual aid, and collective autonomy, where those who suffered the most will construct the just future for themselves. This perspective could help us reimagine TJ not as a top-down, expert-driven intervention, but as a prefigurative practice – a space where communities enact, in real-time, the values of the society they strive to build. 

As seen through the chapters of Part 3, TJ is heavily attached to liberal legalism, including TJ’s “transformative” turn that Campbell also examines. Liberal legalism readily acknowledges that mass atrocity and human rights abuses are connected to a particular government, a group of unfortunate, cruel leaders.  Therefore, the purpose of TJ is to replace or vet that government and its form (if it was authoritarian – then towards democratic). But liberal legalism never questions the state itself as the necessary container of justice. And here is exactly where the anarchist critique can offer some important perspectives. If we try to critique not the government but the state, the four chapters snap into focus as instances of a single argument that, when justice is routed through the very structure implicated in the harm, it is refracted into something that protects the structure rather than the people.

Contrary to that, prefigurative TJ could be the practice of enacting, in the aftermath of mass violence, the justice relations that a community intends to inhabit. The process – or the attempt – would itself be the justice, not the route toward it, so that a community that deliberates as equals about the harms it has suffered is already doing the thing that TJ ordinarily promises for the end of a long institutional sequence. Prefigurative TJ could make its own norms, procedures, and forms of authority through those who will be bound by them, and does not treat recognition by an external legal order as the condition of its legitimacy.  More than that, the prefigurative lens also unsettles the linear temporality that often structures TJ as the movement from a violent past, through a moment of reckoning, toward a reconciled future. Critical studies of temporality remind us that this teleological script risks obscuring the persistence of structural violence and foreclosing alternative futures. Prefigurative practices resist this closure by refusing to treat ‘transition’ as a discrete, exceptional moment. Instead, they could situate TJ within ongoing and unfinished struggles against inequality, dispossession, and exclusion. 

Read through this lens, the peace huts and the Women’s Court could become not just supplements to “real” TJ. They are prefigurative practices – communities enacting the justice relations they wish to inhabit. Campbell almost says this herself when she describes, through the words of Daša Duhaček, feminist justice as “grounded in addressing (concrete) injustice” rather than “the (abstract) concept of justice” (p. 270), and when she calls for justice “beyond the nation-state” that “takes the global as its frame” (p. 275). The vocabulary of prefiguration could give that instinct a proper framework. Now, returning to the chapter on democratic backsliding through TJ, it is striking how Vardy’s contribution is also the reason an anarchist reading has to be careful. If the state can weaponize TJ’s tools for authoritarian ends, then non-state and informal justice cannot be presumed innocent either. The “community” is not automatically emancipatory, and horizontal mechanisms can entrench domination as efficiently as vertical ones. But anarchism offers an important criterion. It is important to analyze justice not simply as state or non-state, but whether it is non-dominating, whether those subject to its norms can make, contest, and revise them. 

Reframing Transitional Justice has assembled, perhaps without quite intending to, a body of evidence that the field’s attachment to the state is constitutive of its failures. Part 3 built a case for TJ that stops treating the state as the horizon of the possible. And anarchism can help the field to find the right vocabulary for these perspectives.

Photo attribution: Seth on Unsplash