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«Emancipating Transitional Justice from the Bonds of the Paradigmatic Transition Dustin N. Sharp* ABSTRACT1 If transitional justice initially emerged ...»

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International Journal of Transitional Justice, 2014, 0, 1–20

doi: 10.1093/ijtj/iju021

Article

Emancipating Transitional Justice from the

Bonds of the Paradigmatic Transition

Dustin N. Sharp*

ABSTRACT1

If transitional justice initially emerged as handmaiden to liberal political transitions, it

has increasingly become associated with postconflict peacebuilding more generally.

While this may suggest a significant moment in the evolution of the field’s foundational

Downloaded from http://ijtj.oxfordjournals.org/ by guest on October 13, 2016 paradigm, it remains unclear what any emerging ‘transitional justice as peacebuilding’ narrative might mean in practice and how, if at all, it might differ from what came before. I argue that the particular conceptions of ‘transition,’ ‘justice’ and ‘peacebuilding’ that come to undergird any such emerging narrative matter a great deal. This article seeks to deconstruct each component of that narrative based on historically dominant and narrow assumptions about what they can and should mean in the aftermath of mass atrocity. I look to concepts from critical peacebuilding theory – including ‘positive peace,’ ‘popular peace,’ ‘the everyday’ and ‘hybridity’ – that might serve as useful correctives to these narrow assumptions, bridging the way to a more emancipatory ‘transitional justice as peacebuilding’ narrative.

K E Y W O R D S : peacebuilding, democratization, liberalism, positive peace, the everyday, hybridity When it first took the global stage in the 1980s and 1990s, transitional justice was largely thought of as a vehicle for helping to deliver important liberal goods in postconflict and postauthoritarian societies, including political/procedural democracy, constitutionalism, the rule of law and respect for human rights. Some three decades after the so-called ‘third wave’ of democratic transitions associated with the field’s naissance, the idea of transitional justice as handmaiden to liberal political transitions – the ‘paradigmatic transition’ of transitional justice – remains a deeply embedded narrative that has helped to shape dominant practices and conceptual boundaries.2 In recent years, this traditional transitional justice narrative has become increasingly intertwined with a view of transitional justice as a component of postconflict peacebuilding more generally, including in societies not undergoing a paradigmatic * Assistant Professor, Joan B. Kroc School of Peace Studies, University of San Diego, USA.

Email:

dsharp@sandiego.edu The author wishes to thank Thomas Obel Hansen, Chandra Lekha Sriram and the anonymous reviewers for their comments on this article. All errors are my own.

See generally, Paige Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice,’ Human Rights Quarterly 31(2) (2009): 321–367.

V The Author (2014). Published by Oxford University Press. All rights reserved.

C For Permissions, please email journals.permissions@oup.com

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liberal transition.3 To the extent that ‘peace’ invokes more holistic sets of objectives than the narrower goals associated with facilitating liberal political transitions, the turn to peacebuilding might be seen to represent a broadening and a loosening of earlier paradigms and moorings, making this a significant moment in the normative evolution of the field. Yet, with few exceptions, there has thus far been little scrutiny as to what transitional justice as peacebuilding might actually mean or how it might be different from transitional justice as liberal democracy building.4 In many instances, analysis of the linkages between transitional justice and peacebuilding goes little further than the loose sloganeering of ‘no peace without justice’ or simplistic assertions that peace and justice go hand in hand.5 Considered more critically, it is entirely possible that transitional justice as peacebuilding will prove to be a distinction without a difference from what came before.

Historically, the peace associated with international postconflict peacebuilding efforts Downloaded from http://ijtj.oxfordjournals.org/ by guest on October 13, 2016 spearheaded by the UN and major international donors has typically been conceived of as a narrow liberal peace predicated on free markets and western-style democracy.6 Thus, insofar as the goals of liberal international peacebuilding and the historical goals of transitional justice are essentially one and the same, transitional justice as peacebuilding may be little more than a dressed up tautology. More darkly, an amorphous ‘transitional justice as peacebuilding’ narrative may prove useful to autocratic regimes that would seek to use the tools and rhetoric of transitional justice to consolidate abusive regimes in the name of peace, just as victors have often done in the name of justice.7 In this light, it is worth recalling that the concepts of peace and justice have emancipatory dimensions, yet both have also been associated with colonial logics and dominant ideologies and power structures throughout history. While the concepts are often presented as neutral and apolitical, devoid of inherent ideological content, they have at times been used to legitimate a world order characterized by economic and structural violence enforced by military interventionism.8 In short, Examples of transitional justice outside of paradigmatic liberal transitions include Rwanda, Kenya, Uganda and Chad.





For the most part, transitional justice scholars have not framed their work in terms of peace or peacebuilding. Kora Andrieu, ‘Civilizing Peacebuilding: Transitional Justice, Civil Society and the Liberal Paradigm,’ Security Dialogue 41(5) (2010): 537–558. There are, of course, notable exceptions to this trend, including

Rami Mani, Chandra Lekha Sriram and Wendy Lambourne. See, e.g., Rama Mani, Beyond Retribution:

Seeking Justice in the Shadows of War (Malden, MA: Blackwell Publishers, 2002); Chandra Lekha Sriram, ‘Justice as Peace? Liberal Peacebuilding and Strategies of Transitional Justice,’ Global Society 21(4) (2007):

579–591; Wendy Lambourne, ‘Transitional Justice and Peacebuilding after Mass Violence,’ International Journal of Transitional Justice 3(1) (2009): 28–48.

See, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,’ UN Doc. S/2004/ 616 (23 August 2004), para. 8, arguing that ‘justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives.’ See generally, Roland Paris, At War’s End: Building Peace after Civil Conflict (Cambridge: Cambridge University Press, 2004).

On ‘victor’s peace,’ see, Oliver P. Richmond, ‘Emancipatory Forms of Human Security and Liberal Peacebuilding,’ International Journal 62(3) (2007): 458–477.

I employ the term ‘economic violence’ throughout this article in ways that overlap with Johan Galtung’s concept of ‘structural violence,’ but with at least one very important distinction. While Galtung’s structural violence is conceived of as being less personal, direct and intentional than physical and psychological violence, many acts of economic violence, including corruption, plunder of natural resources and violations of Emancipating Transitional Justice from Paradigmatic Transition 3  there are reductionist notions of peace, just as there are reductionist notions of justice. Bearing in mind Robert Cover’s observation that institutions and prescriptions do not exist apart from the narratives that locate them and give them meaning,9 I argue that the particular peace and the particular justice that serve to undergird any emerging ‘transitional justice as peacebuilding’ narrative matter a great deal.

In this article, I explore what it might mean to emancipate the emerging ‘transitional justice as peacebuilding’ narrative from the bonds of the one-size-fits-all reductionist logic of the paradigmatic transition that has historically underpinned transitional justice and liberal international peacebuilding more generally. I argue that (re)conceptualizing transitional justice as a form of peacebuilding has the potential to reinvigorate the field, challenge longstanding blind spots and assumptions, and open the doors to more creative thinking, policies and practices that take us beyond the confines of the increasingly rote transitional justice ‘toolbox,’ but that Downloaded from http://ijtj.oxfordjournals.org/ by guest on October 13, 2016 this cannot be taken for granted.

As a step in this direction, it will be important to deconstruct several key assumptions that might implicitly undergird ‘transitional justice as peacebuilding’ narratives, including: (1) the idea of transition as necessarily suggestive of a narrow liberal teleology; (2) ideas of justice as synonymous with legal and atrocity justice; and (3) the idea of peacebuilding as synonymous with what has come to be known as liberal international peacebuilding. I offer several concepts from critical peacebuilding theory – including ‘positive peace,’ ‘popular peace,’ ‘the everyday’ and ‘hybridity’ – that might serve as useful correctives to these narrow assumptions. Taken together, I argue, critical reflection along these lines can help to lay the groundwork for a ‘transitional justice as peacebuilding’ paradigm that reflects a commitment to human rights ideals and the consolidation of a more open-textured, contextually relevant and genuine positive peace.

T R A N S I T I O N A L J U S T I C E A N D P O ST CO N FL I C T P E A CE B UI LD I N G

The historical and ideological origins of transitional justice, rooted largely in the liberal democratic transitions that swept Latin American and other parts of the world in the final decades of the 20th century, have been well documented.10 Scholarly work associated with these early political transitions tended to situate the origins of liberal democracy in choices by elite groups and legal-institutional reforms, rather than social conditions or some more ‘bottom-up’ process.11 To these assumptions were added both a preoccupation with accountability for human rights atrocities and a deeply held belief that grappling with the legacies of the past would help to economic and social rights more generally, cannot be so characterized. In that sense, they often share much in common with direct physical violence. See, Johan Galtung, ‘Violence, Peace, and Peace Research,’ Peace Research 6(3) (1969): 167–191.

Robert M. Cover, ‘Nomos and Narrative,’ Harvard Law Review 97 (1983): 4–68.

See generally, Arthur, supra n 2.

See, Samuel P. Huntington, ‘The Third Wave: Democratization in the Late Twentieth Century,’ in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Volume I: General Considerations, ed. Neil J. Kritz (Washington, DC: US Institute of Peace Press, 1995); Guillermo O’Donnell and Philippe C. Schmitter, ‘Transitions from Authoritarian Rule: Tentative Conclusions About Uncertain Democracies,’ in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Volume I: General Considerations, ed. Neil J. Kritz (Washington, DC: US Institute of Peace Press, 1995).

D. N. Sharp 4  strengthen key liberal goods, from political democracy to human rights and the rule of law. As Paige Arthur has observed, those origins remain relevant, having helped to create a paradigm and sets of assumptions that have served to shape transitional justice theory, policy and practice up to the present day.12 In the decades that followed the birth of the field, the ‘dominant script’ of the Latin American model has, in essence, been exported throughout the world, having significantly shaped the parameters of the so-called transitional justice toolbox.13 One can now point to over three dozen truth commissions and scores of human rights prosecutions as evidence of a global ‘justice cascade.’14 This sense of cascade or crescendo has in turn helped to cloak some of the more overt ideological origins and assumptions of the field in an aura of naturalness and inevitability. After all, it might be said, how else should one respond to mass atrocities if not through the mechanisms of transitional justice? Thus, for many, the question is no Downloaded from http://ijtj.oxfordjournals.org/ by guest on October 13, 2016 longer whether transitional justice is needed in the wake of dictatorship or mass trocity, but how it should be implemented.15 Implementation in turn implies a transitional justice that has been institutionalized and mainstreamed, embraced by the UN and buttressed by an emerging industry of international nongovernmental organizations (NGOs), expert consultants, dedicated staff at the UN and academic journals.16 A similar trajectory can be seen in the history of postconflict peacebuilding, itself born out of the same ideological and political currents associated with the end of the Cold War and the seeming triumph of western liberal democracy. In particular, both transitional justice and postconflict peacebuilding share a faith that the world can be fashioned by liberal ideas and institutions, and that weak, failing and conflict-prone states – now conceptualized as threats to global security – can be relocated from a sphere of conflict to a sphere of peace through a process of political, social and economic liberalization. The term ‘peacebuilding’ came into the modern international lexicon and policyscape thanks in part to Boutros Boutros-Ghali’s 1992 Agenda for Peace report, which defined the term as ‘action to identify and support structures which will tend to strengthen and solidify peace in order to avoid relapse into conflict.’17 While this and other definitions are incredibly expansive, as implemented by the UN and major international donors the term has come to stand for a fairly narrow and established checklist of programs and initiatives, including efforts to disarm previously warring parties, reintegrate former soldiers into society, demine

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