Transitional Justice could and should accept the challenge of decolonial thinking… but it may mean the end of its current form. The practice and standardization of TJ reflect and cement power structures and do not meet emancipatory aspirations. Of all the theoretical challenges transitional justice has had, the decolonial one is probably the most radical and productive. We better embrace it, in theory and in practice. Existential challenges are actually quite good for a field’s health.
Transitional Justice is characterized by robust waves of debate, each of which has transformed and strengthened it. In fact, after many rounds of debate and evolution the name “transitional justice” is probably a relic: originally, the concept alluded to the legally foundational characteristics of post authoritarian “transitions”. Pretty soon, though, it shifted onto the treatment of a sort of transition: the negotiation to pass from conflict to peace.
After the turn of transitional justice into post-armed conflict, the ambitions of the field kept expanding. Survivors and human rights defenders turned their attention to non-transitional situations: dealing with impunity in ongoing conflict was a significant discussion, when a “transition” was not in the horizon. Colombian colleagues used to talk about “transitional justice without a transition” to refer to the many initiatives regarding the rights of victims while the armed conflict still raged.
Has Transitional Justice reached its inherent limitations?
A discussion on colonial legacies is already quite overdue. My own contribution in the FriEnt blog is in all honesty an attempt to look into my own experience and that of close colleagues who had a foundational role in the field: TJ has become widely used in situations that go far beyond the original intentions of truth commissions, reparation processes, trials and institutional reform. Can it go further? Or has it reached its inherent limitations, i.e. the established political order, economic model and regime of memory?
That is where the decolonial challenge appears. By questioning the thematic object, the methods and the institutional structure of the field, the decolonial question would require a Copernican transformation of what we call today “transitional justice”.
It is simply not enough to advocate for states magnanimously including colonial abuse into historical reflection and reparatory action. That is necessary and would provoke important debates, but that is already happening: those harmed intergenerationally by genocide and slavery are not waiting. Black human rights defenders in the US already talk about reparations as a culture and not just another bureaucratic program; Indigenous communities in places as disparate as Australia and the Nordic countries have launched their own truth commissions.
Decolonial practice requires a radical challenge to the structures of power in the field
Selbi Durdiyeva, in the rich discussion we had earlier in October, made a critical distinction: just looking into the topic of the uncomfortable imperial past of many European powers would probably make our field debates postcolonial, but that wouldn’t be enough for a true decolonial practice. That requires a radical challenge to the practices and structures of power in the field itself, without which the instruments of TJ we use are merely repurposed tools of the oppressor.
I fully agree, and I was happy to hear it with such clarity: this field is traversed by massive differentials of political, economic and academic resources. In fact, the tendency to standardizing TJ that exists in the field is the direct result of the need to operate functionally within the structures of thought and action by policymakers, funders and evaluators.
TJ is dominated by a legalistic human rights perspective, with roots in Western philosophies
The conceptual structure and methods of the field don’t fully serve victims in their complexity and actual lives. For one issue, TJ is dominated by a legalistic human rights perspective, with very concrete roots in Western philosophies. As an example, a judicial definition of who is a victim will never capture the experience of Cambodians. Keo Sothie said in the same meeting last October, that he didn’t know a single Cambodian who was not a victim. What would that mean, exactly? That all Cambodians fulfill the characteristics of harm that lawyers would require to declare them a person victimized by gross human rights violations? Or that all Cambodians, independently of actual harm, experience massive trauma? Or something else? Sothie came from the experience of the Extraordinary Chambers in his country. The Chambers were a massive investment of resources to deliver judicial processes with the highest technical standards of fairness. However, in a country “where everyone is a victim” it only processed three perpetrators. Surely it was necessary to try those perpetrators, but also there needs to be an interest in other aspects of treating the experiences of Cambodians, through their use of culturally appropriate practices of trauma healing, addressing the multigenerational trauma, the created victim identities, the irreparable history.
Is our job done?
My own experience writing the blog essays can be summarized in this way: I came with some questions, and I ended up with new ones. I became quite aware of the limitations of my own position in this field and my responsibilities as a practitioner with a long experience. Have we empowered survivors themselves to take over and co-create the instruments of their own healing? But we cannot get paralyzed by this debate: life decides all controversies. Mothers who organized themselves in Argentina to simply walk around a monument, claiming for the disappeared, started this field, the jurists and the academic theses came later. Young people painting graffiti on a conqueror’s statue today are the advance forces for an idea whose time is arriving: the pursuance of emancipation with the rich languages of the ancestors and indigenous cultures. One question remains open for me so far: what role can or must Transitional Justice play as a professionalized policy field in this future?
Editor´s Note: Eduardo Gonzalez wrote a few blog posts on the topic for FriEnt’s Transitional Justice Blog. The blog series asks if the underlying assumptions, patterns of thinking or practices of Transitional Justice are still valid against the backdrop of historic legacies like slavery or colonialism. An online exchange in October served to wrap-up the topics discussed throughout the blog and provided space to debate on the latest developments and challenges ahead with experts and practitioners of Transitional Justice.
