Transitional Justice : A Colonizing Field ?

Transitional justice, as a recent field of study, is in transition itself. Scholars are raising a number of contentious issues and it has become the subject of ongoing debates regarding how to best come to terms with the past in transitional societies. This usually involves, for instance, the creation of specific judicial institutions to carry out justice and hold individuals accountable in the aftermath of conflict or grave human rights violations. As noted by Thomson and Nagy, the field of transitional justice has only recently started to pay attention to “more localized, traditional mechanisms as a corrective to the shortcomings of internationalized, ‘one-size-fits-all’ approaches.” In this article, I contend that the transitional justice literature is defined by a Western, legalistic approach to justice, which affects the field’s ability to account for indigenous and customary mechanisms of justice that do not espouse this legalistic lens. I will discuss two things here. First, I will examine how transitional justice scholars and practitioners favour the implementation and development of certain institutions to the detriment of others in transitional societies. These institutions are usually based on a neo-liberal democratic framework. This, in turn, leads to a discussion about how this preference for particular institutions and mechanisms reveals latent assumptions about the primacy of the rule of law. This article calls for caution in the blind promotion of the rule of law.


Introduction
Transitional justice, as a recent field of study, is in transition itself. 1 Scholars are raising a number of contentious issues and it has become the subject of ongoing debates regarding how to best come to terms with the past in transitional societies.This usually involves, for instance, the creation of specific judicial institutions to carry out justice and hold individuals accountable in the aftermath of conflict or grave human rights violations.As noted by Thomson and Nagy, the field of transitional justice has only recently started to pay attention to "more localized, traditional mechanisms as a corrective to the shortcomings of internationalized, 'one-size-fits-all' approaches."2In this article, I contend that the transitional justice literature is defined by a Western, legalistic approach to justice, which affects the field's ability to account for indigenous and customary mechanisms of justice that do not espouse this legalistic lens.I will discuss two things here.First, I will examine how transitional justice scholars and practitioners favour the implementation and development of certain institutions to the detriment of others in transitional societies.These institutions are usually based on a neo-liberal democratic framework.This, in turn, leads to a discussion about how this preference for particular institutions and mechanisms reveals latent assumptions about the primacy of the rule of law.This article calls for caution in the blind promotion of the rule of law.3

I. Transitional Justice and the Rule of Law
Transitional justice is generally defined as a field of study that explores attempts to secure peace and justice, 4 and that encompasses the "legal, moral and political dilemmas that arise in holding human rights abusers accountable at the end of conflict." 5As such it shares close ties with the literature on conflict resolution and peacebuilding, where the promotion of the rule of law is perceived as an essential element in sustaining peace and security.Thallinger, for instance, argues that transitional justice "forms an absolutely essential component in every post-conflict peacebuilding process." 6In fact, it appears that a legalistic approach to justice has come to dominate the field of transitional justice. 7McEvoy, for instance, contends that "transitional justice has become over-dominated by a narrow legalistic lens which impedes both scholarship and praxis." 8This is clearly visible in the sort of institutions favoured by transitional justice scholars and practitioners.The international push to do justice, 9 or what Oomen calls "the judicalisation of international relations," 10 has led the international community to respond to the call for accountability by setting up major legal institutions, including the Tokyo and Nuremberg Tribunals, the ICTY and ICTR, and other, more recent, hybrid models such as the Special Court for Sierra Leone.The creation of the ICC is certainly the most significant illustration of this global move towards judicalisation.In recent years, the crimes committed in Sudan, the Democratic Republic of Congo, Uganda and the Central African Republic have been referred to the ICC. 11 This push to do justice is also visible outside of the prerogative of the ICC.In 2003, for instance, under pressure from the United States government, the Iraqi Special Tribunal for Crimes Against Humanity was set up to investigate crimes committed under the government of Saddam Hussein. 12The creation of such judicial institutions, according to Amnesty International, is an "international responsibility," which the international community must carry out. 13Today, the idea that persons who "commit international crimes are internationally accountable for them has now become an accepted part of international law." 14 Transitional justice strategies, however, have quickly expanded to encompass a range of activities that are not directly about doing justice per se, but rather encompass such things as the "institutional reform of judiciaries, training of judges, reformulation of military and other security doctrines…and institutions, which are indistinguishable from peacebuilding efforts." 15The 2010 Annual Report of the International Center for Transitional Justice illustrates and confirms this tendency.The document lists security sector reforms and criminal justice reforms as part of the activities that comprise the field of transitional justice. 16These reforms include the restructuring of national security forces, intelligence, and the reorganisation of the justice sector, alongside measures to strengthen civil society.17Transitional justice strategies have generally supported the development of institutional measures that are mapped onto a neo-liberal understanding of peace and peacebuilding.This is not entirely surprising, given that transitional justice is often considered a subset of peacebuilding. 18To a great extent, many officials equate transitional justice with the establishment of human rights and peacebuilding activities. 19Sriram contends that the fields of transitional justice and peacebuilding "share key assumptions about preferable institutional arrangements, and a faith that other key goods -democracy, free markets, 'justice' -can essentially stand in for, and create, peace." 20This belief has clear roots in the neo-liberal doctrine, 21 which encourages the "opening up of political space, including improvement regarding contestations, participation and human rights." 22Teitel adds that the "justice seeking phenomena…is intimately tied to the fashioning of a liberal political identity." 23e unquestioned and absolute promotion of the rule of law at the international level, however, creates challenges on two levels.Firstly, it raises questions on an ethical level vis-àvis the ideological assumptions that ground the judicialisation of international relations.Secondly, it also brings up concerns vis-à-vis the practical level and the feasibility and applicability of this model to a variety of contexts.Both these issues are discussed in the following section.

I.1 Ethical Challenges
The fact that transitional justice scholarship is "steeped in western liberalism" 24 is problematic for a number of reasons.Firstly, this tendency renders scholars unable to account for mechanisms and approaches to justice that do not fit within its legalistic and individualistic framework.Indeed, liberalism conceives of the individual as the basic and irreducible unit of society, and finds it difficult to accommodate practices that do not correspond with this view.This liberal principle of individuation, although culturally and historically specific, serves to shape much of existing international humanitarian peacebuilding efforts in transitional societies. 25Nagy, who is highly critical of what she refers to as the "global project," accuses transitional justice of seeking to "produce subjects and truths that align with market democracy and are blind to gender and social justice." 26Lundy and McGovern, who denounce international efforts for promoting "a pattern of development determined by the dominant ideology of neo-liberalism," echo Nagy's concern. 27Transitional justice, just like peacebuilding, with which it is often associated, is informed by a given "epistemic knowledge base and ontological view of the world" which influences the social, economic, political strategies employed. 28Orford warns of the fact that the establishment of transitional justice institutions and mechanisms is informed by "powerful ideas of the international human rights movement, part of the forward march of liberal internationalism." 29Here, I want to draw attention to how transitional justice strategies are designed and channelled to fit a specific ontological view of society embodied in the liberal tradition.In fact, apart from a handful of scholars, 30 the transitional justice literature has remained silent on the issue.
This one-size-fits-all neoliberal approach has been most clearly visible through the uninhibited promotion of the rule of law and the institutional arrangements that support its development in transitional societies.The last couple of decades have seen a "surge in American and international efforts to promote the rule of law around the globe, especially in post-crisis and transitional societies." 31European and North American foreign policies, as well as the UN, the World Bank, and a number of philanthropic foundations, have all engaged in the promotion of the rule of law, based on a given standardised understanding of it.In this research, I adopt the UN's definition of the rule of law, which refers to: a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. 32nternational community in developing countries and transitional societies. 36This international emphasis on the rule of law and legal institutions has become one of the main ways in which countries deal with one another. 37Over the years, international efforts in transitional societies have increasingly focused on the building of courts, the punishment of human rights violations, and the writing of laws. 38Justice has become one of the main areas of international assistance and cooperation. 39In order to obtain funding, a number of nonwestern states have had to conform to donors' priorities and therefore adopt such a standardised practice and understanding of the rule of law, as in the case of the African Union (AU) and its leading members. 40e of the striking elements of this globally unbridled promotion and adoption of the rule of law is the lack of critical evaluation of its underlying assumptions.The concept of the rule of law is "rarely examined or understood by key international decision makers." 41The rule of law and law itself is naively associated with order and a source of societal peace.It is also prescribed on the basis of being inherently good, coherent, and independent from society. 42he rule of law is perceived to exist "beyond culture," and is therefore thought to be easily applicable to different contexts through the creation of written laws and formal judicial structures. 43Accordingly, law is considered a foundational element that precedes all other factors, including culture and religion.As a result, courts and legal texts are seen as the embodiment of this universal and impartial rationality.It is generally accepted that courts, as neutral instruments of the law, are well able to provide an "official version of reality to which a majority would subscribe." 44In transitional societies, where abuses of power and violence were rampant, the advent of the rule of law not only symbolises a breakaway from a difficult past, but is most importantly seen as "capable to construct liberalising change." 45e problem, therefore, does not lie with the rule of law itself but, rather, with the way it is presented and promoted.As Oomen writes, one of the reasons that justice and the rule of law have become a major area of international cooperation is that law is presented as "neutral, universal and apolitical." 46This approach to law and justice, as apolitical and easily abstracted from its social context, is itself an exclusively Western and ethnocentric notion. 47eeing law as an unbiased and impartial instrument is highly problematic, for it fails to recognize the cultural contingency of legal practices and understandings.Yet, the concept of the rule of law continues to be used and remains unquestioned.International legal norms and theory are defined by this discourse, which informs language about what is 'right' or 'wrong,' or in other words what is legal and illegal.The main difficulty becomes how this understanding of law guides much of the ongoing international efforts to do justice and the kind of institutions transplanted into transitional societies, with no appreciation of the cultural embeddedness of such conception of law.I do not reject the rule of law, nor do I claim that legal institutions such as courts and tribunals are the wrong mechanisms to use in all situations.Rather, I want to draw attention to the fact that the rule of law is placed on a pedestal, and is typically considered a "heightened legal reference point." 48This narrow legal focus "produces a parochial perspective that limits the range of conceivable remedies." 49The crux of such a challenge, according to Nagy, is that "the West arrogates the universal to itself and then brings all others into its fold of humanity." 50ansitional justice is a field highly defined by legal norms. 51It is an active promoter of judicialisation and it is a prime site for this universalising tendency.Scholars in the field of transitional justice appear to remain unaware of the fact that the institutions and mechanisms the literature endorses in transitional societies are "held together by common concepts, practical aims, and distinctive claims for legitimacy," embedded in a specific intellectual tradition. 52The field of study is driven by given norms and assumptions about the nature of law.The rule of law is viewed a "set of benchmarks rather than a lived ethos within society." 53That is, the rule is seen as a value-free standard to be sought out and achieved.This, in itself, is contrary to a number of indigenous traditions that see law and justice as a lived experience, always reflecting the needs and preferences of those involved, as opposed to a rigid body of rules disconnected from local realities. 54As a result, the field of transitional justice emerges as a "site where conflicting social rationalities test the limits of law order, guaranteeing peace and sustaining integrity." 55e western intellectual and legal tradition, rooted in an inherently universalising discourse of enlightenment rationalism, threatens different ways of knowing and doing justice.As argued by Bryan, "the rule of law's guarantee of ensuring justice and justice for all collapses in on itself when the fact of its universality is exactly what ensures that all people are not treating equally." 56By claiming the universality of our conceptual knowledge, transitional justice scholars risk generating inaccurate accounts of the problems encountered in transitional societies, and, much worse, design solutions with little applicability.The irony, of course, is that, unconsciously, the Western rhetoric surrounding the rule of law and other transitional and development efforts "performs the same function of the imperialism it nominally scorns, relegating the non-European other to a less advanced stage of development." 57Other ways of interpreting justice are simply relegated to second place or absorbed within the existing corpus of knowledge and the corresponding conceptual framework.
The universalising undercurrent of the legalist paradigm that underlies the transitional justice scholarship has extended beyond the mere promotion of international criminal law through international institutions such as the ICC.It now seeks to incorporate the standardisation and transplantation of legal institutions and practices.This, evidently, has important implications for the range of activities undertaken in post-conflict, transitional societies.

I.2 Strategic Challenges
The assumed impartiality and universality of the rule of law is most visible in the transfer of certain legal practices and judicial institutions to transitional societies.This is referred to by Bell as a transitional justice "toolkit", whereby a specific array of mechanisms is chosen and delivered to address the legacies of mass violations of human rights. 58This usually includes the establishment of domestic criminal trials, truth-seeking bodies, and other hybrid or restorative mechanisms.Oomen also argues against the implementation of "prefabricated justice packages" dictating the appropriateness of specific criminal codes and procedures in countries emerging from a variety of situations. 59This was the case, for instance, in Afghanistan, Iraq, and Liberia, where the international community intervened and pushed for the creation of specific judicial institutions that mirrored international legal preferences. 60ain, transitional justice and peacebuilding efforts are blended together and bear the brunt of similar criticism vis-à-vis their use of "IKEA type, flat-pack peace made from standardised components." 61So while, as discussed earlier, the ontological and ideological assumptions that underpin the rule of law remain largely unaddressed, the practice of the international community in promoting specific mechanisms and patterns is often disparaged.The sharing of information and best practices for dealing with grave violations of human rights is certainly to be encouraged.Yet, there is a very real danger that transitional justice interventions and practices become both non-reflexive and homogenised across the board. 62As noted by Duggan, transitional justice mechanisms are too often "transferred across settings with insufficient refl ection given to contextual relevance and appropriateness." 63In this respect, they risk being ineffective, or, worse, detrimental to the societies where they are implemented.
The implementation of this one-size-fits-all approach lacks the social, historical and cultural connection to the people who are primarily affected by the transition.It is based on the faulty belief that what has worked in a few developed and industrialised countries will work elsewhere. 64As a result, local ownership of these processes and engagement in the rebuilding of a just society is not always optimal.This is troublesome, for it is well known that ignoring local needs and failing to engage local actors is likely to undermine the anchoring of a lasting peace. 65Local actors and communities must be involved in the design and implementation of transitional efforts for the process to work at all, 66 which is not always the case with the topdown creation of judicial institutions.This is particularly needed in societies that have been scarred by deep social and cultural divides, such as in Rwanda. 67Recreating dialogue between parties, via locally led and owned programs, is often the best way to bridge differences and restore trust.
Unfortunately, the international community continues to concentrate much of its efforts around the strengthening of state institutions. 68Often, the kinds of judicial institutions and reforms promoted in transitional societies reflect a specific understanding of the source of law and order, as well as the role of the state in maintaining both.Typically, a majority of governmental and non-governmental donors target their funding towards a given array of programs that support the strengthening of state legislature. 69The general tendency of the international community is to "see justice and justice delivery as quintessentially the business of the state or state-like institutions." 70The Belgian Development Agency, the United Kingdom's Foreign and Commonwealth Office, and the Swedish International Development Cooperation Agency, for instance, partnered in a three year Projet D'Appui Institutionel et Operationel à la Justice in Burundi, whereby 8.7 million Euros were devoted to the strengthening of the country's judicial institutional capacities. 71Activities include things such as the establishment of a Judicial Training Institute, the publication of legal texts and documentation, the training of state lawyers, as well as the provision of material support and legal expertise to the Ministry of Justice. 72Similar projects have been launched by a number of countries including France, Germany and Canada, amongst others.The European Union, for instance, also requires and assists in the creation of stable institutions guaranteeing democracy, the rule of law and human rights, as a condition of accession in the European Union. 73is one-size-fits-all approach effectively limits the space for alternative modes of doing justice and making peace.According to MacGinty, the "template style intervention" of western donors and the ensuing structural power that it endows them with contributes to the "marginalisation of traditional and indigenous approaches." 74Even though the international community has adopted a discourse of accommodation of traditional and other non-state approaches, the standardising practices put in place often confine alternative processes within a legalistic framework. 75This is the case in New Zealand where the government is actively trying to fit tikanga within its existing judicial framework and institutions.Some organisations, like the UK Department for International Development, believe that customary mechanisms can serve to complement formal judicial and state mechanisms, and continue to promote this idea in their development aid and programmes. 76In fact, some even argue that international efforts have "simultaneously enabled and disabled attempts by indigenous people to gain greater control" over the policies and institutions that target them. 77Yet, the international community's position vis-à-vis customary justice mechanisms is clearly spelled out in the UN Secretary General's Report on the Rule of Law and Transitional Justice.The document talks about conforming indigenous and traditional processes with international standards. 78This means that customary mechanisms are to be tolerated so long as they can be judicialised to correspond to international legal norms and expectations.As MacGinty explains, the relationship between international law and local traditional justice practices is more often one of "co-option rather than a co-existence of equals." 79quick look at the existing research on customary mechanisms of justice clearly illustrates this tendency. 80Rwanda's gacaca courts are a prime example of how the international interest and support of customary mechanisms led to their co-option.Drumbl, for instance, exposes the call for gacaca courts to become "as legal as possible" so as to emulate the trial model and thereby conform to the international law paradigm. 81The overall coordination and organisation of gacaca courts was in the hands of the Rwandan state and its Department of Gacaca Jurisdiction within the Ministry of Justice. 82The intervention of the state and the international community has, in fact, radically altered the traditional Rwandan process of doing justice, 83 removing the voluntary and grassroots aspects of the process.This has resulted in gacaca courts having little authenticity in the eyes of those who knew how these processes were traditionally (in the sense of pre-genocide) conducted. 84In the research I conducted in New Zealand, I found that the New Zealand government's ongoing attempt to include Maori practices within its judicial framework has produced, at best, mixed results.
To a large extent, many Maori remain suspicious of the government's attempts, which they view as mere tokenism. 85would argue that the unbridled promotion of the rule of law and its institutions contributes to a kind of "epistemic violence of commensurability," which seeks to silence other subaltern ways of knowing. 86There is ample evidence across the African continent, Latin America, the Middle East as well as in Eastern Europe, of the homogenising, if not outright colonising, tendency of the legalist paradigm.Customary practices are tolerated only to the extent that they can imitate and adopt tenets of the legalist tradition.In his examination of the Aboriginal and English understandings of property, Bryan explains that "we enframe Aboriginal reality in a particular way in order to structure it according to the dictates of our own society." 87In other words, we create space for the other -in this case, the Aboriginal way of knowing, within our conceptual framework and language.It seems that we are either unable or unwilling to envisage ways of knowing that surpass our own imagination.
Mbembe notes that the western philosophical and political tradition "has long denied the existence of any 'self' but its own." 88As a result, and in response to this inability to see other ways of knowing in their entirety, we constantly seek to redefine them.According to Frantz Fanon, this is emblematic of colonialism, which "forces the people it dominates to ask themselves the question constantly: in reality, who am I?" 89 It relentlessly reminds them of their difference and the need to re-define themselves in opposition to the dominant society and against the backdrop of racial labelling and stereotyping.The colonised continuously has to redefine itself to reflect the dominant paradigm.This, in turn, contributes to its marginalisation and a form of identity crisis.
During his address at the 4 th International Indigenous Conference on Traditional Knowledge in Auckland, Moana Jackson explained, "colonisation has damaged the wholeness of who we are." 90In an exploration of Maori traditional knowledge and identity, Jackson discussed the constant challenge that is being brought against the wholeness of Maori identity, which has had to adapt itself in order to be "accepted" and understood by the settler society.This has also very clearly been the case with Maori customary mechanisms of justice, which have had to be redefined to absorb elements of the legalist paradigm in order to be tolerated. 91

Conclusion
Judicial reform has become a hallmark of transitional justice, and an "enabling condition or precondition" of the field. 92There is no doubt that the unquestioned faith of transitional justice scholarship and the international community in the rule of law influences the type of interventions performed in transitional societies.The nature and underlying assumptions of the rule of law are, however, rarely assessed.The kinds of institutions transplanted and the legal assistance provided to transitional societies are often based on a given, preconceived template borrowed from the European legal tradition.As a direct consequence of this clear preference for the rule of law and its state institutions, non-state, local and customary approaches are often marginalised, if not assimilated within the push for judicialisation.As noted by Nagy, tension between international norms and local context "is and will continue to be an increasing challenge for the project of transitional justice." 93The difficulty, therefore, lies in finding ways to accommodate differences, without one way of knowing being subservient to the other.There is a real danger that the field of transitional justice simply serves to promote, maybe even involuntarily, a biased approach to doing justice, which fails respond to local needs and realities.It is crucial, therefore, that transitional justice scholarship recognises that its promotion of a specific legal tradition and institutions is akin to a "form of unconscious eradication of alternative understandings of the world." 94We absolutely need to interrogate our own way of understanding law, if we are to even start to comprehend different ways of knowing. 95Academia's unquestioned preference for and promotion of the rule of law and its institutions, regardless of context, risks rendering the work carried out in the field grossly inapplicable and disconnected from a variety of other local realities.Worse yet, by continuing to blindly promote its own legal framework and institutions, transitional justice scholarship runs the risk of being perceived as illegitimate and dangerously homogenising.