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Transitional Justice: A New Discipline in Human Rights

Last modified: 18 January 2010
Kora Andrieu

January 2010

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Kora Andrieu, Transitional Justice: A New Discipline in Human Rights, Online Encyclopedia of Mass Violence, [online], published on 18 January 2010, accessed 19 April 2014, URL : http://www.massviolence.org/Transitional-Justice-A-New-Discipline-in-Human-Rights, ISSN 1961-9898

Enlarging the Scope of Transitional Justice

If forgetting is not a viable option, what form should TJ take to ensure that the past is dealt with in the most appropriate manner? As we have seen, although TJ has recently become a well-established fixture in the global field of human rights — and even a body of customary law and a normative standard — it can be criticized on several grounds. The influence of legalism on TJ and the formation of it as an «industry» (Theidon, 2009) have created a deep disjunction between justice which is embedded in communities and «distant justice» (Gready, 2005). The fact that it is more often the international community which provides fragile, newly created governments with the means to reckon with their past, can be a matter of concern. Too often, the international community adopts a technocratic, one-size-fits-all approach that can be damaging. TJ has become steeped in western liberalism, often appearing as distant and remote to those who actually need it most (Nagy, 2008: 275). But ultimately, the resolution of conflict lies in the society in which it occurs: external agents can only build capacities that increase the likelihood of peace. Rebuilding social capital and livelihood systems is harder than restoring infrastructures and institutions. It involves redefining relationships, promoting public deliberation, creating a healthy civil society, facilitating the healing process, as well as making institutions both trustworthy and effectively trusted (De Greiff, 2006b). Recent literature has therefore been arguing for a more differentiated approach that would give special care to child and gender violence, and would finally address the remaining blind spots of TJ and the prevailing «zones of impunity» (Sriram and Ross, 2007).

It is interesting, however, to observe that TJ itself is not questioned anymore: there is now a general consensus in favor of justice, accountability and dealing with the past (Scheffer, 2001). «The question is not whether something should be done after atrocity but how it should be done» (Nagy, 2008: 276). A current approach to this question of «how» is to argue in favor of an enlargement of the scope of TJ. As we have seen, TJ is a performative tool, an inherently selective process which involves the delimitation of a narrative and the exclusion of others. A fundamental question then, is what does TJ transit «from» and «to» (Bell and O’Rourke, 2007: 35). Broadly understood, the framework should include structural and gender-based violence which, as we have seen in the matter of reparations, is often left out of the picture. TJ is still under the influence of the liberal-legalist paradigm which tends to favor freedom and liberty over equality, undermining the socio-economic and gendered roots of the conflicts (Mani, 2007: 151).

Broadening the scope of TJ and transition might also be understood geographically, so as to include democratic countries in the northern hemisphere too. This would mean acknowledging that «every society is in transition» (Kiss, 2000: 92). Even democratic societies have their share of unacknowledged past injustices, whose effects are corrosive and deep. The effects of Australia’s forced removal of Aboriginal children from their families, or of America’s brutality against Black Americans, continue to corrode these democracies today, and contribute to endless cycles of violence and distrust (Brophy, 2006). The legacy of colonization in France, especially regarding Algeria, is also a case in point. It might seem surprising to label well-established liberal democracies such as Australia, the United States or France as «transitioning» countries, but the acknowledgment of this long denial of justice is the prerequisite to a more just, non-western understanding of TJ.

Online Encyclopedia of Mass Violence® - ISSN 1961-9898