Transitional Justice is part of the colonial order, it persists and is deeply embedded in ‘Euro- North American – centric modernity’. Even when transitional justice initiatives are comprehensive and holistic, they account for a colonial situation only to a limited extent, representing more compromises and easier ‘fixes.’ They, thus, address symptoms rather than causes; and the redress (if any) is not proportionate to the crimes perpetrated by colonisers.

It might seem natural that the field, which focuses on how societies deal with the past abuse and violence, would examine the legacies of colonial crimes and structures. Transitional justice remains relatively immune to decolonial disposition, so ‘the elephant in the room’ has not been noticed. It could be because transitional justice, although an interdisciplinary field, is still much influenced by its counterpart international law. Much of the current international law architecture arose after the unbearable suffering brought by the World War II, with a view to never repeat it again. This notwithstanding, the victor’s justice successfully distracted attention from the responsibility of European and other states for colonialism.

To give an example of the system’s complicity in colonialism, one does not need go far. One of the six bodies of the UN – the Trusteeship Council still remains, although no longer functional, the main goal of which was to supervise European colonial territories. Like an atavism of the system, the Trusteeship Council silently and uncomfortably plays roles of both witness and evidence of colonialism and international legal order built on it, on which fields like transitional justice rely.

A settler colony remains a settler colony

Just like is the case with the international structures, the fall of colonial administration in different parts of the world did not result in the fall of colonial order, it persisted, and it is deeply embedded in ‘Euro- North American – centric modernity’ The violence committed in the aftermath of colonial administration and the foreign and artificial colonial structures are addressed by transitional justice institutions symptomatically, without considering how colonial dynamics allowed for the structures that led to violence in the first place. The Truth and Reconciliation Commission of South Africa examined apartheid policies without paying due regard to the colonial roots of apartheid. The International Criminal Tribunal for Rwanda prosecuted the perpetrators of genocide, with no regard for the colonial administration that divided the population on ethnic principles that later led to the atrocities. Even if transitional justice tools are applied, violence is addressed, some form of justice and regime consolidation are achieved, still, in many contexts, ‘the settler colony remains a settler colony.’

To say that transitional justice is free of post-colonial concerns would be inaccurate. The Belgian Parliament in 2020 established a Special Parliamentary Commission on ‘truth and reconciliation,’ to examine the country’s colonial past in, Congo, Burundi, and Rwanda. The Commission has a broad and rather ambitious mandate in a short period of time to examine the colonial crimes from 1885 to 1962. Due to its nature and its mandate, the Commission is at risk of contributing to epistemic injustice due to omission of voices even though its impact could have far-reaching consequences. In June 2022, the Belgian King Philippe ‘expressed regret’ for the colonial harm; and the country’s Prime Minister apologised for Belgium’s responsibility for the assassination of Congolese Prime Minister, Patrice Lumumba. In May 2021, Germany officially apologised for the massacre of Herero and Nama in Namibia that happened over a century ago, using for the first time, the term ‘genocide’ and offering to provide developmental aid as a form of reparation. Transitional justice has also been used to address harms inflicted on indigenous populations, for example, relating to Indian Residential Schools in Canada and care institutions in Australia, where children were forced to study in a different language, adopt foreign cultural practices, and be separated from family and community. Such measures as inquiring on the events (truth dimension of transitional justice), reparations, public apologies were in place with respect to the settlers’ policies towards indigenous populations in Australia and New Zealand, with a Waitangi Tribunal settling the disputes concerning land claims of Māori people. Even if these initiatives are laudable, they account for a colonial situation only to a limited extent, representing more compromises and easier ‘fixes,’ which are not proportionate to the crimes perpetrated by colonisers.

Rethink the rethinking

The above issues force us to make the following points: we need to (again) rethink the state of the field of transitional justice and its aims. Importantly, and this has been done only marginally, we need to consider the state of knowledge production in transitional justice. This means reflecting on who the agents of the creation of transitional justice norms are. The focus in transitional justice should be shifted towards ‘amplifying the wealth of knowledges available within traditionally subaltern, non-dominant, and largely disregarded epistemologies of the global South that currently face destruction or, what Bonaventura de Sousa Santos terms, “epistemicide.”’ We also need to ask ourselves, what is the essence of the field, how do we challenge the existent geographical imbalance when it comes to transitional justice case studies, how do we think about non-Western imperialism, and, in the words of Walter Mignolo, ‘how do we rethink the rethinking’? We should acknowledge that European modernity is not the threshold with which the ‘progress’ is measured, and it is not (only) Europe that shapes global justice agenda. ‘Post-colonial’ (description of the situation) needs to be changed into ‘decolonial’ (programme for action).

Transitional justice should engage and foster understanding of the genealogies of decolonial thought in order not to enter the trope ofhijacking the term because it is fashionable. A superficial adoption of the language of decolonisation serves solely for the purposes of addressing the settler’s guilt and needs, and, as a result, hinders the possibility of decolonisation. The ‘decolonizing projects and other social justice projects’ are incommensurable as the work of decolonisation is both ‘hard’ and ‘unsettling.’ Just as the decolonisation of academia cannot be achieved by merely including a few names of authors of colour in reading lists in order to ‘decolonise’ the curriculums, transitional justice cannot be ‘decolonised’ in a true meaning of the word by including a few indigenous approaches into an otherwise liberal and externally-driven package of measures.

The decolonising mindset refrains from the imposition of the standards of modernity

The question of land repatriation, wealth distribution, and structural violence has received much attention in the literature on transitional justice but what is missing is that this should be done with a decolonising mindset and praxis, that is, the return of what is owed, and non-imposition of the standards of modernity. As was coined by Fanon, ‘Decolonisation never goes unnoticed, for it focuses on and fundamentally alters being…’

Acknowledgements

This contribution was written as part of the research project ‘Postcolonial Hierarchies in Peace & Conflict ‘ [grant number 01UG2205A], funded by the German Federal Ministry of Education and Research. This contribution is based on a chapter entitled ‘Towards Decolonial Agenda for Transitional Justice: ‘The Old is Dying and the New Cannot Be Born,’ forthcoming in Thamil Venthan Ananthavinayagan and Amritha V. Shenoy (eds.), The Wretched of the Global South (Springer Publishers).