The International Criminal Court’s Lack of Credibility: What Consequences for the Process of Convicting Perpetrators of Mass Atrocities?

By Salomé Wyns

Salomé Wyns is a recent graduate in International Relations and Politics at the University of Sheffield, UK.

Abstract

February 2018 marked the twentieth anniversary of the Rome Statute which established the International Criminal Court (ICC). The ICC has, since 2002, taken up the daunting challenge of meting out international criminal accountability. As a permanent judicial institution, the ICC seeks to end impunity for the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes and crimes of aggression (UN General Assembly, 1998). Since its implementation sixteen years ago, the ICC has faced a range of criticisms regarding its effectiveness and its alleged bias against African leaders. The purpose of this paper is to identify the factors contributing to the International Criminal Court’s lack of credibility –along the lines of impartiality and independence- and assess how these factors may hinder the process of conviction of perpetrators of mass atrocities. Through an analysis of the case of Kenya (2007-2008), this paper will argue that the ICC’s lack of credibility stems from inherent structural contradictions that limit the Court in its prosecutorial independence and impartiality, rendering it vulnerable to politicisation and manipulation by states, thereby enabling them to justify non-cooperation.

Introduction

In recent years, the credibility of the International Criminal Court (ICC) as an impartial and independent institution has been challenged by African leaders, scholars and human rights advocates alike (Tiemessen, 2014: 444). The perception of the ICC as a credible institution by states and other international actors is crucial to its success, as the Court largely depends on the support of these actors. The focus of this paper, divided into four sections, will be on the ICC’s ability to safeguard its reputation as an impartial and independent judicial institution. The first section briefly provides a background of the ICC, defines the term ‘credibility’ and looks at the claim of inefficiency against the Court. The second section examines the ICC’s lack of police enforcement and its ties with the Security Council to argue that this association leads to politicisation. The third section focuses on the ICC’s case selection partiality and the bias and the double standards that stem from it. Finally, the fourth section turns to the case of Kenya to illustrate the negative effect of the ICC’s lack of credibility on state cooperation.

Background

The Rome Statute was adopted by 120 states in July 1998 and entered into force in July 2002 (Wouters and Basu, 2009: 11). The implementation of a permanent international criminal court prosecuting humanity’s worst crimes constitutes a bold challenge to state sovereignty and was, therefore, likely to generate a certain degree of opposition (Bosco, 2012: 4). Since then, lengthy and costly trials resulting in few convictions have resulted in criticisms concerning the ICC’s credibility and efficiency.

The charge against the ICC

Before proceeding, it is necessary to define the word ‘credible’ in the context of this paper. In the case of the ICC, a credible institution would be independent and impartial, ultimately leading to efficiency (Gegout, 2013: 801). Indeed, if the perception of the ICC as an untrustworthy institution impacts its ability to convict perpetrators of mass atrocities, increasing that credibility depends on one hand on the ICC’s ability to act independently from states, and on the other, on its ability to deliver justice in a fair and impartial manner (Gegout, 2013: 800). However, one must be cautious not to make the assumption that the ICC’s conviction rate is entirely dependent on the Court’s level of credibility (see Davenport, 2014). Measuring the effectiveness of international institutions remains a complex challenge; as such, a number of factors can account for the ICC’s low conviction rate. Firstly, the Court only has territorial jurisdiction in the states parties to the Rome Statute and can only investigate crimes committed after 2002. This significantly limits the ICC’s ability to provide universal justice. Secondly, war crimes cases are extremely complex in nature and require time, since a delay in proceedings is essential to allow the truth to emerge (Whiting, 2009: 335). Moreover, a lack of cooperation usually generates delays in judicial proceedings and can lead to the complete collapse of a case, as with the case of Kenya (2007-2008). Finally, the ICC is a court of ‘last resort’ which means it can only intervene when national courts themselves lack the ability to prosecute perpetrators. As former prosecutor Luis Moreno-Ocampo, cited in Nichols (2016: 32), states:

‘as a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.’

One must also be mindful that the institution is fairly young and will only be able to build credibility over time (Cassesse, 1999: 145). Indeed, the creation of such court is truly revolutionary and changes at the international level happen incrementally. It is indisputable that the quality of justice the ICC delivers should continue to be scrutinised, as effectiveness is the only path for the Court to be sustainable. However, the ICC’s credibility should not only be determined by its conviction rate but by the legitimacy of the proceedings, and by the Court’s ability to uphold principles of independence and impartiality, characteristics which will be explored in the next sections. Nonetheless, it can be concluded that the perception of the ICC as an inefficient institution plays a role in undermining its credibility, as each failure undermines the Court’s ability to deliver justice in the eyes of the victims, as well as in those of the international community.

The politicisation of the ICC

This section will argue that the ICC’s dependence on external political actors allows special interests to permeate and influence the law. This dependence ultimately weakens the ICC’s credibility as an independent institution. Indeed, the Court is highly dependent on state cooperation as it does not possess any police force or effective means to enforce states’ cooperation (Kaye and Raustiala, 2016: 7). Whether it be to investigate on the ground, arrest suspects or provide evidence, cooperation from states is crucial. Vinjamuri (2014: 277) labels this phenomenon ‘the authority paradox’. On one hand, the ICC’s authority and credibility reside in the assumption that justice must be independent from politics. But on the other hand, the ICC is structurally dependent on states to enforce its mandate (Vinjamuri, 2014: 277). Although full cooperation with the Court in its investigations and prosecutions is required under Article 86 of the Rome Statute (UN General Assembly, 1998), the ICC’s authority has been blatantly defied by states on multiple occasions.

This structural weakness compels the ICC to seek assistance from powerful states that have coercive power (Kaye and Raustiala, 2016: 7). The challenge for the ICC therefore becomes to balance two opposing inclinations: restraining state power, while relying on their cooperation at the same time. Instead of enhancing the Court’s legitimacy and power, it has been argued that the United Nations Security Council’s (UNSC) special rights of referral under Chapter VII of the UN charter, as well as their right to defer proceedings in the interests of international peace and security under Article 16 of the Rome Statute, open the door for politicisation and double standards (Tiemessen, 2014: 454). This association reflects the strategic political constraints that entangle the UNSC and state parties’ self-interests. This was especially obvious in the early days of the institution when the prosecutor’s office avoided conflicts that involved major-power interests –the cases of Afghanistan and Palestine for instance- (Bosco, 2012: 78). As Bosco (2012) argues, even though major powers like the United States do not directly control international institutions, by adopting ‘marginalising’ or ‘controlling’ behaviours, powerful states can influence the Court. The United States has had a wavering position towards the Court, but some argue that, more recently, it has used the Court to target rogue states such as Sudan and Libya – neither of which are parties to the Rome Statute- (Mamdani, 2008). Particularly in the aftermath of NATO’s intervention in Libya, the proximity between the Security Council, state interests, and international criminal justice became too close for many of the ICC’s proponents. This has quickly resulted in allegations that the ICC had become associated with a Western military policy of regime change (Vinjumura, 2014: 284). Many now worry that the Rome Statute will be used to breach sovereignty through intervention (Mackie, 2012:138). The special privileges granted to a small number of powerful states by international institutions creates obvious tensions with a sovereignty norm that stipulates equal status to all states. The fact that the ICC is intertwined with the UNSC’s network of political and logistical support undermines its independence and ultimately is an important factor for the ICC’s loss of credibility.

An African bias?

The second factor resulting in the ICC’s lack of credibility is the selectivity in its case selection, which has resulted in an almost exclusive focus on African perpetrators. The mandate of the ICC is very ambitious, but a single institution cannot investigate all situations under its jurisdiction or prosecute the full range of criminal responsibility within them. Therefore, a degree of selectivity is necessary for the ICC to operate. However, the ICC’s apparent focus on Africa -every one of the 32 criminals ever indicted have been African men (Elsheikh, 2015)-clashes with its alleged global mandate. It is in this context that African leaders, such as Paul Kagame, have been very vocal, accusing the ICC of systematically targeting Africa whilst overlooking crimes perpetrated in other parts of the world (Mugabi, 2016). They argue that the ICC reflects a western bias, some even going as far as claiming that the Court is a tool of neo-colonialism (Kenyatta, 2013). According to that argument, the ICC is being used by western countries to exercise influence on the internal affairs of African countries. Mackie’s (2012) analysis of the ICC website’s language is useful to illustrate this argument. On the ICC’s website, fifty-five separate documents contain the word ‘barbaric’ whereas the word ‘savage’ appears forty-seven times in the context of human rights violations (Mackie, 2012: 134). These terms create a dichotomy of ‘us versus them’ and dehumanises perpetrators (Sagan, 2010: 16). The negative connotations of these words and the image of the external actor intervening to save helpless victims from heartless perpetrators seriously hearken back to rationalisations of colonialism. Such rhetoric strengthens African leaders’ argument that the ICC is a form of neo-colonialism institutionalised through international criminal law (Mackie 2012: 134).

However, the ICC’s focus on Africa can, once again, be explained by structural limitations. Firstly, as argued in the second section, the partnership between the ICC and the Security Council creates double standards. Many African countries do not have powerful protectors in the Council—unlike Syria, for example, where Russia has been blocking the ICC’s efforts to prosecute crimes committed there (Rothmyer, 2012). There is also the fact that many countries accused of human rights abuses (the United States, China and Russia amongst them) have refused to be a party to the ICC statute, making it unlikely that their alleged crimes will ever be prosecuted. It is therefore felt that the ICC is going after Africans by default (Rothmyer, 2012). This has resulted in a disengagement by African countries and leaders who feel unjustly targeted. The backlash first surged when an arrest warrant was issued against Sudanese President Omar Al-Bashir in 2009. The hostility between the Court and the African Union (AU) then reached new heights when ICC suspects, Uhuru Kenyatta and William Ruto, were elected president and deputy president of Kenya, and a potential massive pull-out from the ICC was considered.

There are also arguments against the potential bias of the Court. Firstly, considering that African States constitute the largest regional grouping of state parties, it was statistically more likely that prosecutions would arise from African states. Indeed, in the wake of the genocide in Rwanda, and given the long history of war crimes and impunity in the continent, African countries had a clear interest in joining an international criminal court. Secondly, judging the ICC to be more competent and impartial than their own national courts, many African countries have referred cases to the Court themselves. Hence, these referrals cannot be regarded as external interventions (Mendes, 2010: 168). Therefore, although the Court does reflect the double standards that are deeply rooted in global governance structures (Bosco, 2014: 189), the ICC’s case selection needs to be understood in the context of these limitations. Nonetheless, these allegations of racial bias and neo-colonialism, whether accurate or not, have significantly damaged the ICC’s credibility and hindered cooperation from African states.

The consequences: The case of Kenya

The forceful campaign led by ICC indictees Uhuru Kenyatta and William Ruto was designed to portray the ICC as an untrustworthy and biased institution and thus delegitimise its authority. This reflects the degree of politicisation involved in ICC cases and the negative effect it has on cooperation. In March 2010, the ICC opened investigations on six individuals for their involvement in the ethnically targeted violence that followed the 2007 Kenyan election (Mueller, 2014: 27). The post-election violence left thousands dead, injured and displaced (Claire, 2012: 641). However, the Kenyan government failed to deliver justice for victims. It was thus the first time a case was referred by the prosecutor himself (‘proprio motu’). Moreover, the judges and the prosecutor tried to stay away from Kenya’s domestic politics (Tiemessen, 2014: 456). However, despite these efforts to remain independent and impartial, rather than accepting the ICC’s authority, Kenyatta and Ruto joined forces to run for the presidency while campaigning against the ICC. Kenyatta employed a populist rhetoric to discredit the Court’s operations in Kenya and ultimately won the election. By recalling Kenya’s colonial past, Kenyatta managed to spin the charges into a powerful narrative implying that the ICC was a ‘toy of imperialism’ (Kenyatta, 2013). Kenyatta claimed before African Heads of State and Government that, since the Court’s budget is largely funded by the EU, ‘Western powers are the key drivers of the ICC’ and that ‘the threat of prosecution’ by this Court is being used as a tool to make ‘pliant states execute policies favourable to these [Western] countries’ (Materu, 2014: 221). Similarly, at the same AU Summit in October 2013, Kenyatta accused the ICC of ‘race-hunting’ Africans (Kenyatta, 2013). Consequently, whereas the African Union’s mediation process following the 2008 violence in Kenya was seen as a locally owned process, granted with support and legitimacy, those seeking to undermine the Court portrayed the ICC’s intervention as an externally driven process imposed by the West (Juma, 2009: 407).

Assessing whether or not the ICC has perceived credibility in Kenya and elsewhere in Africa is highly subjective, but some elements prove that Kenyatta’s campaign has clearly been effective in hindering cooperation with the Court. Indeed, in addition to building domestic support and winning the election, Kenyatta used his newly won platform as President to discourage the African Union from cooperating with the ICC (Mueller, 2014: 31). Between 2011 and 2012, Kenya aggressively lobbied African leaders to get support from the AU in their demand for a UN deferral of ICC investigations and their transfer back to Kenya’s domestic courts (Mueller, 2014: 31). Whilst their efforts were unsuccessful, Kenyatta’s campaign did resonate with the AU. In September 2013, a potential mass pull-out by African countries was even considered by the AU (Mueller, 2014: 32). South Africa and Burundi’s decision to withdraw from the ICC in October 2016 (Sieff and Mahr, 2016) marks another blow to the ICC’s deteriorating relationship with Africa. Cooperation with the Court has also been put at risk by the alleged attempts of intimidation of witnesses for the prosecution (Mueller, 2014: 33). Kenyatta and Ruto successfully postponed their trials until after they gained power. Finding themselves without witnesses, key documents, or political support, prosecutors had no choice but to withdraw charges in December 2015. In September 2016, the ICC issued a finding of non-cooperation to the ICC’s Assembly of States Parties. The failure of the case has resulted in the Kenyan victims feeling a ‘growing loss of faith in the ICC’ (Mueller, 2014: 38). Ultimately, justice for thousands is still to be delivered. Neither Kenya nor the ICC has met its responsibility to hold the perpetrators of war crimes accountable, showing yet again, that politics trumps justice. This attempt to undermine cooperation with the ICC can largely be attributed to the unique structure and jurisdiction of the ICC, which renders it vulnerable to the political interests of those who instrumentalise it. The case of Kenya highlights the ICC’s limited enforcement powers, especially when political power and non-compliance combine to threaten the law (Mueller, 2014: 38).

Conclusion

This essay has attempted to identify the causes of the ICC’s lack of credibility and its effect on the non-cooperation of states by examining the case of Kenya. It has been argued that structural weaknesses in the Rome Statute regime have limited the ICC in its independence and partiality, ultimately weakening the Court as a credible and effective institution. Without support and cooperation, the ICC will perpetuate the vicious circle of loss of credibility and will ultimately be less effective in meting out accountability and positively affecting conflict resolution. At its heart, the ICC reflects deep tensions between peace and justice, politics and law, and power and norms. It embodies strong ambitions and has a broad set of objectives, and balancing legal understandings and political interests, while maintaining credibility and support, will remain the ICC’s biggest challenge to ensure universal human security.

Bibliography

Bosco, D. (2014). Rough Justice: The International Criminal Court In a World of Power Politics. New York: Oxford University Press.

Claire, B. (2012). Avoiding Unwillingness: Addressing the Political Pitfalls Inherent in the Complementarity Regime of the International Criminal Court. International Criminal Law Review, 12(4), pp.629-664.

Clark, P. (2011). The Limits and Pitfalls of the International Criminal Court in Africa. [online] E-International Relations. Available at: http://www.e-ir.info/2011/04/28/the-limits-and-pitfalls-of-the-international-criminal-court-in-africa/ [Accessed 15 Oct. 2016].

Davenport, D. (2016). International Criminal Court: 12 Years, \$1 Billion, 2 Convictions [online] Forbes.com. Available at: http://www.forbes.com/forbes/welcome/?toURL=http://www.forbes.com/sites/daviddavenport/2014/03/12/international-criminal-court-12-years-1-billion-2-convictions-2&refURL=https://www.google.com.au&referrer=https://www.google.com.au/ [Accessed 20 Oct. 2016].

Elsheikh, E. (2015). Sudan and the International Criminal Court Revisited: The Dilemma of Retributive Justice and the Question of “Responsibility to Protect” | Haas Institute. [online] Haasinstitute.berkeley.edu. Available at: http://haasinstitute.berkeley.edu/sudan-and-international-criminal-court-revisited-dilemma-retributive-justice-and-question [Accessed 16 Aug. 2016].

Gegout, C. (2013). The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace. Third World Quarterly, 34:5, 800-818.

Juma, M.K. (2009). African Mediation of the Kenyan Post-2007 Election Crisis. Journal of Contemporary African Studies, 27:3, 407-430

Kaye, D. and Raustiala, K. (2016). The Council and the Court: Law and Politics in the Rise of the International Criminal Court. 94 Texas Law Review 713 (2016); UCLA School of Law, Public Law Research Paper No. 16-13.

Kenyatta, U. (2013). Uhuru: ICC is a toy of declining imperial powers – Capital Blog. [online] Capital Blog. Available at: http://www.capitalfm.co.ke/eblog/2013/10/12/uhuru-icc-is-a-toy-of-declining-imperial-powers/ [Accessed 25 Oct. 2016].

Mackie, A. (2012). Perceptions, Politics, and Peace: The Limits of Globalization in Legitimizing the International Criminal Court. Macalester International: Vol. 30, Article 12.

Mamdani, M. (2008). The New Humanitarian Order. [online] The Nation. Available at: https://www.thenation.com/article/new-humanitarian-order/ [Accessed 12 Oct. 2016].

Materu, S. (2014). A Strained Relationship: Reflections on the African Union’s Stand Towards the International Criminal Court from the Kenyan Experience. In: G. Werle, L. Fernandez and M. Vormbaum, ed., Africa and the International Criminal Court, 1st ed. T.M.C. Asser Press.

Mendes, E. (2010). Peace and justice at the International Criminal Court. Cheltenham, UK: Edward Elgar.

Mugabi, I. (2016). ICC: What next for Africa and the tribunal in quest for justice? | Africa | DW.COM | 02.02.2016. [online] DW.COM. Available at: http://www.dw.com/en/icc-what-next-for-africa-and-the-tribunal-in-quest-for-justice/a-19020659 [Accessed 24 Oct. 2016].

Nichols, L. (2016). International Criminal Court and the End of Impunity in Kenya.[S.l.]: Springer International.

Rothmyer, K. (2012). International Criminal Court on Trial in Kenya. [online] The Nation. Available at: https://www.thenation.com/article/international-criminal-court-trial-kenya/ [Accessed 11 Oct. 2016].

Sagan, A. (2010). African Criminals/African Victims: The Institutionalised Production of Cultural Narratives in International Criminal Law. Millennium – Journal of International Studies, 39(1), pp.3-21.

Sieff, K. and Mahr, K. (2016). South Africa says it will quit the International Criminal Court. [online] The Sydney Morning Herald. Available at: http://www.smh.com.au/world/south-africa-says-it-will-quit-the-international-criminal-court-20161022-gs8aiy.html [Accessed 24 Oct. 2016].

Tiemessen, A. (2014). ‘The International Criminal Court and the Politics of Prosecutions’. The International Journal of Human Rights, 18(4-5), pp.444-461.

UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 2 October 2016]

Vinjamuri, L. (2016) The International Criminal Court and the Paradox of Authority, 79 Law and Contemporary Problems 275-287.
Weiner, A.S. (2013). Prudent Politics: The International Criminal Court, International Relations, and Prosecutorial Independence. 12 Washington University Global Studies Law Review 545.
Whiting, A. (2009). In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered. Harvard International Law Journal / Vol. 50, Number 2, Summer 2009.

Wouters, J. and Basu, S. (2009). The Creation of a Global Criminal Justice System. In: C. Ryngaerts (ed.) The Effectiveness of International Criminal Tribunals. Antwerp: Intersentia.

Transitional Justice: A Tool of Elite Manipulation? A Constructivist Analysis of Gross-Abuse in Kenya and Rwanda

By Alisha Lakhani

Alisha Lakhani is a graduate in Arabic and International Relations from the University of Leeds, with a keen interest in constructivist norm theory and transitional justice.

Abstract

Since its inception in the 1990s, significant concerns have been raised regarding the implementation of transitional justice and the abuse of its mechanisms. The purpose of this paper is to determine the extent to which the noble ambitions of transitional justice have been co-opted by political elites to serve vested interests. Whilst gross abuse of state institutions and processes is not a new phenomenon, using a constructivist lens unveils the sheer scope of elite manipulation. In this paper, norm theory is used to analyse transitional justice mechanisms in Rwanda following the genocide in 1994, and in Kenya following the outbreak of electoral violence in 2007. The paper addresses the abuse of transitional justice mechanisms through positing a three-tiered narrative which explains how leaders consolidate personal political power as well as party dogma. Firstly, elites create a state-directed version of truth which is later institutionalised as collective memory, and ultimately history. Secondly, all opponents are characterised as the ‘other’ and enemies of state through manipulating these mechanisms. Finally, notions of justice are mobilised to claim ‘liberation’ is under threat to justify elongation of political mandates. This paper demonstrates how elites mobilise transitional justice to serve their own agenda. Fundamentally, this paper reiterates the fact that transitional justice is a definitional project with both causal and constitutive effects, which render it vulnerable to abuse.

Introduction

This essay argues that transitional justice mechanisms are heavily instrumentalised by political elites in order to serve their vested interests. This conclusion was reached through an examination of the transitional justice processes that were introduced in Rwanda following the 1994 genocide and in Kenya following the 2007 post-election violence. A constructivist theoretical paradigm is utilised as it offers interesting insights into the ways in which transitional justice mechanisms are employed by elites to carry out their agendas, as well as the implications of such practices. Constructivists argue that although there is an objective reality, it is not simply a product of physical manifestations; it is also socially constructed by ideas and other forms of cognitive structures (Adler, 1997, pp. 319). With this in mind, it is necessary to consider the nature of justice and the mechanisms within which it manifests. As Nouwen and Werner (2015, pp. 176) highlight, “numerous articulations of justice co-exist, overlap and compete”. Furthermore, Acharya (2013, pp. 467) argues that ideas and norms, in this case, the norm of ‘justice’, have causal and constitutive effects. Therefore, it is necessary to consider who is responsible for the articulation of this norm as well as its reproduction, as it represents a form of agency.

Historically, transitional justice mechanisms adopt either a restorative approach, which can entail Truth and Reconciliation Commissions (TRCs) and provision of amnesties, or a retributive approach which can entail international, national and grassroots criminal tribunals with the end goal of punitive punishment, although there are elements of both in most transitional systems (Mallinder, 2007, pp. 208). If one considers the constructivist notion that there is rarely such a thing as value-free knowledge (Adler, 1997, pp. 336), an important question arises pertaining to the scope of elite manipulation and the extent to which such manoeuvrings have impacted and infiltrated norms of transitional justice and their application. It is argued that one-way in which transitional justice mechanisms are utilised is by constructing a version of ‘truth’ which downplays the serious transgressions of the political elite as well as those of the parties they represent. Elite political actors attempt to institutionalise this version of ‘truth’ to form a collective memory or ‘history’, which is particularly problematic as those “who control the past, control the future” (Orwell, 2004, pp. 44). Another way in which elites mobilise transitional justice mechanisms is through creating an enemy or an ‘other’. This is a concerted strategy employed by political elites to neutralise any perceived threat; whether that is domestic or international, material or fictitious. Finally, political elites also manipulate the ambitious, and some may contend, utopian aims of transitional justice (Campbell and Turner, 2008) to claim that it has not been fully actualised. This allows elites to elongate the transitional period, as well as their political mandate, by claiming that the process of liberation is under threat and that a particular party or a politician alone possesses the skill and foresight to protect it (Beresford et al., 2017). This paper argues that due to elite manipulation, transitional justice mechanisms are undermined and, as a result, lasting peace and reconciliation has yet to be actualised both in Kenya and in Rwanda.

Transitional Justice: A Discursive Tool

According to McAuliffe (2017, pp. 44), “transitional justice does not happen in a political vacuum, it always challenges an existing order that did not permit such progress to develop organically”. As this paper shows, in Kenya and Rwanda, political elites have re-articulated notions of justice to safeguard against any assault on their political power and authority. As aptly iterated by Miller (2008, pp. 267), transitional justice is, at heart, a “definitional project” and therefore it is subject to the whims and caprices of those who are part and parcel of its establishment, institutionalisation and enforcement. However, in relation to political elites, manipulation of transitional justice mechanisms is not simply a whimsical act devoid of intent; it is rather a concerted strategy employed to entrench personal power, cement party dogma and to secure political capital and legitimacy. As this paper argues, in Rwanda and Kenya, this is actualised through the creation and reproduction of a singular, prescribed narrative of ‘truth’. Through its replication and institutionalisation, this version of truth is characterised as collective memory, ergo history. This is of paramount importance as history frames the past and has the capacity to frame our present and our future.

One such transitional justice mechanism employed to create and promulgate state-directed versions of events are the gacaca courts in Rwanda. These were introduced by the Rwandan Patriotic Front (RPF) in 2002 in order to facilitate the expression of ‘truths’, to promote reconciliation, to eradicate the culture of impunity, in addition to expediting the trials of suspected génocidaires (Scanlon & Motlafi, 2010, pp. 302). However, it is argued that despite these lofty aims of the gacaca courts, they are not much more than a vehicle to disseminate state-imposed versions of events. This argument is supported by Corey and Joireman (2004, pp. 86) who claim that the jurisdiction of the gacaca courts were deliberately limited by the regime in order to exclude testimonies of Tutsi atrocities, thereby exonerating Tutsi and RPF violations which includes the massacre of civilian Hutu populations, during the genocide as well as after the establishment of the new regime. The characterisation of Tutsi transgressions as a ‘war crime’ and Hutu offences as ‘a crime against humanity’ is part of a concerted strategy to downplay the gravity of RPF and Tutsi crimes. Not only do the political elite define who is to blame for the outbreak of conflict, they are also instrumental in determining what constitutes a crime, as well as who may be considered a victim and whom the perpetrator. Such narratives of blame hold tremendous power as they are utilised to entrench systems of oppression and inequity against certain echelons of society whilst empowering others, thus demonstrating the manipulation of transitional justice mechanisms for political gain.

In Rwanda, systems of oppression operate along ethnic cleavages. Rentyjens (2006, pp. 1110) defines this as the ‘Tutsi-isation” and “RPF-isation’ of Rwanda, which is evident through their exclusive monopoly of public institutions and positions of power. Statistics reveal that in 2000, 70\% of the most prominent positions of office were held by Tutsis; which is concerning as they comprise just 10\% of the population (Rentyjens, 2011, pp. 30). The preferential treatment conferred to the Tutsi population is indicative of the RPF’s formation of a new ‘Akazu’ (patrimonial network) which works to bolster their support, allows the party to acquire legitimacy and to strengthen President Kagame’s hold over the reins of power (Rentyjens, 2011, pp. 30). The term ‘Akazu’ is a reference to an informal grouping of Hutu elites who were closely affiliated to the former Habyarimana regime; it is said that they abided by an extremist ideology and played a significant role in orchestrating the genocide against the Tutsi population (Behuria, 2015, pp. 258). It is of no coincidence that Rentyjens utilises such contentious terminology to describe the actions of the RPF-led regime; it is a damning denunciation. Bratton and Van De Walle (1997, pp. 65-66) argue that political elites acquire support and legitimacy through providing their patrimonial networks with access to state resources. This paper argues that due to the RPF’s authoritarian control over all state resources and institutions, there is no room for contestation of their power which explains their extraordinary success during elections. This is a deliberate strategy employed by the RPF and this paper suggests that the creation of this ‘Akazu’ would not have been feasible had the institutionalisation of a state-directed version of ‘truth’ not occurred. This sentiment is well exemplified by Miller (2008, pp. 280), who claims that “transitional justice mechanisms…are discursive tools, just as much as they are instruments of accountability or reconciliation; they may frame the conflict in one dimension without providing an alternative vocabulary.”

Similarly, in Kenya, transitional justice mechanisms are instrumentalised to create a version of ‘truth’ which portrays the current ruling coalition in a more favourable light. It is argued that this narrative of ‘truth’ is the source of the Jubilee Alliance’s power, legitimacy and support, despite the emergence of damning evidence of “potential crimes against humanity” (Brown et al., 2012, pp. 248). Following the 2007 post-election violence, a Commission of Inquiry revealed the violence in Kenya “followed ethno-religious patterns of party affiliations” (Lugano, 2017, pp. 15). The Commission recommended the creation of a Special Tribunal to investigate these crimes. When this did not materialise, the International Criminal Court (ICC) intervened. The ICC intervention in Kenya was especially controversial due to the revelation of the ‘Ocampo Six’; a list of six high-ranking members of the political elite under investigation for inciting ethnic violence, which was grave enough to be considered a ‘potential crime against humanity’ (GPPAC, 2014, pp. 16). It is argued that the political elite in Kenya downplayed their own role in the promotion of a zero-sum ethnic competition, through creating and replicating narratives which brought the ICC’s legitimacy into question. This strategy successfully allowed the political elite to circumvent both international and domestic scrutiny of their actions. This view is supported by Lynch (2014, pp. 94) who claims that the Jubilee Alliance “reframed the ICC story – at least in the eyes of a significant number of Kenyans – as a performance of injustice, neo-colonialism, and threat to the country’s sovereignty, peace and stability.” Lynch presents a persuasive argument, one which is verified through grassroots, ethnographic research, which consisted of interviews and focus-group discussions as well as election-monitoring processes, TRC participant observations among others (ibid, pp. 95). Moreover, this claim is supported by Lugano (2017, pp. 9) who claims that “the ICC’s intervention in Kenya’s 2007/2008 political crisis was framed as neo-colonialism by two of the accused – Uhuru Kenyatta and William Ruto…which was central to the accused overcoming their ICC stigma.” The institutionalisation of this ‘truth’ to form a collective memory was politically desirable for the elites in question, as it allowed them to circumvent culpability of serious crimes. Ironically, the ICC investigations, which were launched to tackle impunity, have been mobilised to fuel the very culture of impunity it was tasked to eliminate. In this case, transitional justice mechanisms have been re-articulated and instrumentalised to promote injustice. This view is supported by Mueller (2011, pp. 109) who claims that “no high-level figures in Kenya have ever been prosecuted for the increasingly deadly violence surrounding elections since the early 1990s.”

Introducing and reinforcing this discourse within the broader conceptualisation of transitional justice in Kenya worked to secure the identity and power of Kenyatta and Ruto, whilst simultaneously undermining the ICC’s legality. This narrative of ‘truth’ introduced by the political elite portrayed the ICC and the coalition of Kenyatta and Ruto as antithetical to one another (Mueller, 2011, pp. 109). As a result, whilst the political elite entrenched the notion that the ICC is a neo-colonial, divisive institution, they simultaneously propagated the idea that their coalition was one of unity, which brought together the two major ethnic groups: the Kalenjin and Kikuyu; who were bitter rivals prior to this point (Lynch, 2014, pp. 110). This view is supported by Brown et al. (2012, pp. 254) who claim that “shifting alliances by opportunistic ethno-regional power brokers have characterised Kenyan politics. Bitter enemies before one election can find themselves on the same side in the run-up to the next one”. This illustrates the argument that transitional justice mechanisms are employed not only to secure the power of incumbent leaders, but also to ensure continuity of nefarious practices, under the guise of ‘justice’ and ‘reconciliation’. Thus, transitional justice mechanisms in Kenya were manipulated by the political elite in order to deflect criticism, secure personal power for Kenyatta and Ruto as well as to acquire broad-based legitimacy and support for their ethnic patrimonial groups through the creation of an alternative ‘truth’; all under the guise of ’justice’.

The Instrumentalisation of Transitional Justice as a Strategy of Political Abjection

Transitional justice mechanisms are also manipulated by the political elite to create an enemy or an ‘other’. This tactic of vilifying, discrediting and defaming all forms of opposition is a particularly effective method of consolidating power as it allows regimes to rationalise their inequitable treatment of all those who pose a threat to their rule; whether that threat is real or simply fabricated. The instrumentalisation of transitional justice to eliminate opposition is actualised through mobilisation of the state’s version of ‘truth’. If a transitional regime has monopoly over what is considered true, the nature of justice, and of whom are the victims and the perpetrators, then they are also able to instrumentalise this ‘truth’ to demarcate outside groups or ‘others’. This strategy is evident in both Rwanda and Kenya. Both regimes have successfully delegitimised their opposition whilst simultaneously securing their power using political abjection. The term political abjection here refers to a strategy used to obliterate any opposition through defining it as a “malignant threat to the broader social and political health of the nation” (Beresford et al, 2017, pp. 2). By portraying any dissent as “actors who harbour ambitions to return these societies to past instances of mass political violence and neo-colonial relations, [t]hese individuals are said to warrant illiberal state interventions against them” (Beresford et al, 2017, pp. 2).

In Rwanda, the policy of ‘Rwandicity’ has been especially useful in eradicating all forms of dissent, whether that exists at a grassroots level or as a concrete political threat in the national arena. This policy is an integral part of transitional justice in Rwanda as it aims to foster reconciliation of the population through promoting unity by means of stigmatising and criminalising all references to ethnicity (Beswick, 2010, pp. 410). It is argued that this strategy was instrumentalised to burgeon RPF dogma. Moreover, it was not only successful in controlling the dominant population through a “collectivisation of Hutu guilt” (Thompson, 2011, pp. 378), it was also mobilised to contain any and all forms of political dissent. This argument is especially persuasive considering the sheer number of people who have been imprisoned under ‘genocide ideology accusations’, a figure that reached 912 people in 2009 (Rentyjens, 2011, pp. 16). Furthermore, prior to the 2003 elections, the Republican Democratic Movement party (MDR), the sole concrete political contender to RPF power, was abolished for “encouraging ethnic-divisions” (Rentyjens, 2006, pp. 1107). This is not merely a coincidence, but part of a broader strategy to eliminate all forms of opposition and exert authoritarian control over all aspects of life. The RPF would have been unable to wield such authoritarian power if not for the gross abuse of transitional justice mechanisms. This tactic has been incredibly successful in entrenching the RPF’s dominance as it eliminates all possibilities for a truly competitive party politics where there are programmatic differences between parties and electoral contenders; thus, allowing political leaders to retain their monopoly of power indefinitely. Moreover, the veneer of transitional justice shields the RPF regime against international scrutiny and interference which allows them to further their own agendas without restraint.

Similarly, in Kenya transitional justice mechanisms were manipulated by political elites in order to delegitimise the opposition. This was actualised on both national and international fronts. Firstly, the coalition of Kenyatta and Ruto manipulated transitional justice mechanisms to delegitimise the ICC’s investigation into the post-election violence (Lynch, 2014, pp. 105). This was politically expedient as the ICC had the potential to destroy the political careers as well as the personal lives of the politicians concerned, thus posing an existential threat to the leaders as well as the political parties they represent (Lynch, 2014, pp. 105). The political elite created, reproduced and propagated the notion of the ‘other’ in order to neutralise this menace. Dichotomous characterisations of the ICC as a neo-colonial invader and a western stooge stood in stark contrast to Kenya, a victim of colonialism, once again under attack from the same, insidious threat (Lugano, 2017, pp. 11). This argument is supported by Lynch (2014, pp. 106) who posits that Kenyatta and Ruto consciously portrayed themselves as “defenders of Kenya’s sovereignty and independence against Western interference…everything was cast as a competition between patriotic Kenyans and a patronising international community”. This dichotomy was further entrenched through characterisations of the ICC as antithetical to the Jubilee Alliance, which were widely circulated by these political actors (Lynch, 2014, pp. 106). The elite focused on the retributive nature of the ICC whilst contrasting it with promises of peace and reconciliation through restorative means under their coalition (Lynch, 2014, pp. 106). The manipulation of transitional justice mechanisms such as the ICC was integral to the success of the Jubilee Alliance. The creation of an ‘other’ was a central tenet of the coalition’s tactic of political abjection and it was highly successful as evident through the victory of the Jubilee Alliance in the 2013 elections, one which was characterised as “a referendum on the role of the ICC and its attendant neo-colonialism” (Lugano, 2017, pp. 11).

Additionally, the Jubilee Alliance utilised transitional justice mechanisms in order to vilify and defame political opponents on the domestic front. This is supported by Brown et al. (2013, pp. 253) who claims that the ICC is a useful tool to remove political rivals, both within a party and amongst opposition groups. The creation of an ‘other’ was salient in delegitimising the Alliance’s only concrete political opponent: Raila Odinga. The political elite capitalised on Odinga’s role in facilitating the ICC’s intervention in Kenya, and used this association to categorise him and the Luo minorities as ‘enemies of Kenya’. This argument is supported by Lynch (2014, pp. 109) who claims that “Jubilee effectively recast overarching narratives…regarding the ICC and Odinga, in such a way that individual and collective interests became intricately intertwined with one’s ethnic identity. The ICC’s intervention, for example, becoming not only an example of a political and biased court, but a process through which Odinga and ‘the Luo’ sought to tarnish ‘the Kalenjin’ as perpetrators, and to remove ‘the Kikuyu’ from power.” This demonstrates how transitional justice mechanisms are manipulated as part of a strategy of political abjection (Beresford et al., 2017), which in Kenya entailed creating an ‘other’ so as to firstly paint opponents as the enemy of the state and secondly to unite the rest of the population. It ought to be noted that once again, ethnic identities were mobilised for political gain, however, this time, it occurred under the veneer of transitional justice. The mechanisms which ought to facilitate reconciliation are mobilised to reignite ethnic divisions, thereby sowing the seeds of future conflict.

The Mobilisation of Transitional Justice to Indefinitely Prolong Political Mandates

Another tactic which is employed by political elites is the manipulation of transitional justice mechanisms to prolong political mandates. According to Galtung (1969, pp. 183), peace is not simply the absence of physical violence (negative peace) but also the absence of structural violence and inequalities (positive peace). Therefore, he argues that transitional justice should aim to establish positive peace in order to actualise true justice and reconciliation. However, it is argued that political elites have sought to capitalise on this extended articulation of justice to extend their political terms as well as to entrench their power and bolster their identities. Beresford et al. (2017, pp. 1) proposes a conceptual framework of ‘liminality’, which is particularly useful in examining how regimes retain characteristics of a hybrid system as a tactic to consolidate power. Hybrid democracies describe regimes where procedural elements of democracy are fulfilled whilst retaining authoritarian control over all elements of life (Heynes, 2001, pp. 12). Rwanda and Kenya both exemplify a ‘liminal state’.

Through utilising the ‘productive liminality’ framework (Beresford et al., 2017), Rwanda and Kenya, political elites have successfully mobilised liberation discourses to maintain their power and influence. Firstly, the RPF and Jubilee Alliance have disseminated their version of ‘truth’ which is later institutionalised into the collective memory of the population. This ‘truth’ claims that these parties have ‘liberated’ the population from ethnic violence and or genocide; therefore, it has been a source of peace and justice in the country. Through creation of an enemy or an ‘other’, these parties simultaneously target their political opponents whilst rationalising the implementation of extreme, authoritarian practices. Furthermore, the political elite claim that complete liberation has yet to be achieved as structural violence remains prevalent, which is then used to justify a prolonged mandate. This three-tiered strategy is particularly effective in consolidating political power, legitimating authoritarian rule and eliminating all form of dissent and opposition, thus demonstrating the degree to which politicians manipulate transitional justice articulations and mechanisms for their personal and political gain. This was apparent in Kenya in the recent 2017 election, which demonstrated that little has changed: “Voting patterns are still set up as ethnic blocks…The politics of tribe and patronage persist, political change trickles along, with little sign of a variation in the personalities dominating the space, or any shift in ideology” (Wesangula, 2017). Similarly, in Rwanda, President Kagame has held the reins of power for over 17 years and with the 2015 constitutional amendment, he is set to be in power till 2034 (Burke, 2017).

Conclusion

This essay examined the mechanisms of transitional justice adopted in Rwanda and Kenya to actualise peace and reconciliation following the outbreak of mass violence, as well as the ways in which these processes have been hijacked in order to serve personal as well as political vested interests. A constructivist theoretical framework has established that concept of justice simultaneously constructs and is constructed. Based on this analysis, this paper argues that transitional justice mechanisms ion Rwanda and Kenya have been mobilised to create, disseminate and propagate a state-sanctioned version of ‘truth’. Political regimes then endeavour to institutionalise this truth into a collective memory, ergo history, which further reinforces their power, increases their legitimacy and extends their influence. Additionally, regimes utilise transitional justice mechanisms to create an enemy or an ‘other’ in order to remove any opposition or political rivals. Furthermore, political elites often manipulate transitional justice mechanisms to prolong their political mandates as well as that of the parties they represent. The various means adopted by political elites demonstrate that transitional justice mechanisms are to a large extent instrumentalised for personal and political gain.

This paper has largely focused on the agency of political leaders in Rwanda and Kenya and their role in creating articulations of justice, which serve their vested interests. However, an area which has yet to be considered is the notion that “identities, interests and behaviour of political agents are socially constructed by collective meanings, interpretations and assumptions about the world” (Adler, 1997, pp. 324). Reflecting on this, to what extent are the actions of leaders in Kenya and Rwanda the product of individual motivation? Or is it the result of institutionalised practices?

Such questions raised in this paper are particularly relevant as transitional justice mechanisms are becoming institutionalised and reproduced sporadically across Africa as well as throughout the world. There is a very real, pervasive fear that the “the same mistakes may easily be perpetuated, in a way that bespeaks not a conspiracy of interests but a coherence of blindness” (Miller, 2008, pp. 272). Unfavourable practices and abuse of transitional justice not only serve to increase the propensity for physical violence; they also increase the prevalence of structural constraints, which undermines the core aims of transitional justice and thus jeopardises the prospects of genuine peace and reconciliation in the region. Thus, it is necessary to consider the ways in which these mechanisms are instrumentalised in order to safeguard against its abuse.

Bibliography

Acharya, A. 2013. The Responsibility to Protect and Norm Diffusion: Towards a Framework of Norm Circulation. Global Responsibility to Protect [ONLINE] Vol. 5, No. 4, pp. 466 – 479 [Accessed: 02nd February 2018] Available from: 10.1163/1875984X-00504006

Adler, E. 1997. Seizing the Middle Ground: Constructivism in World Politics. European Journal of International Relations. [ONLINE] Vol. 3, No. 3, pp. 319 – 363 [Accessed: 15th January 2018] Available from: https://doi.org/10.1177/1354066197003003003

Behuria, P. 2015. “Rwanda 1994: The Myth of the Akazu Genocide Conspiracy and Its Consequences by Barrie Collins Basingstoke: Palgrave Macmillan, 2014.” The Journal of Modern African Studies. Vol. 53, No. 2, pp. 258–259. [Accessed: 08th January 2018] Available from: doi: 10.1017/S0022278X1500029

Beresford, A., Berry, M. and Mann, L. (2017) Hybrid Regimes and Stalled Democratic Transitions: Reproducing Power in Rwanda and South Africa Thro-\\ugh Productive Liminality. In: The African Studies Association Conference [Accessed: 15th January 2018] Available from: https://minerva.leeds.ac.uk/bbcswebdav/pid-5348289-dt-content-rid-9725421_2/courses/201718_30863_PIED3261/Democratization\%20Article\%20Revised\%20November\%202017\%20FOR\%20VLE.pdf

Berman, B. 1998. Ethnicity, Patronage and the African State: The Politics of Uncivil Nationalism. African Affairs [ONLINE] Vol. 97, No.388, pp. 305-341. [Accessed: 22nd November 2018] Available from: http://www.jstor.org/stable/723213

Beswick, D. 2010. Democracy, Identity and the Politics of Exclusion in Post-Genocide Rwanda: The Case of the Batwa. [ONLINE] Democratization. Vol. 81, No. 2, pp. 490 – 511, [Accessed: 11th January 2018], Available from: https://doi.org/10.1080/13510347.2011.553367

Bratton, M. and Van de Walle, N. 1997. Democratic Experiments in Africa: Regime Transitions in Comparative Perspective. Cambridge: Cambridge University Press.

Brown, S. and Sriram, C. L. 2012. The Big Fish Won’t Fry Themselves: Criminal Accountability For Post-Election Violence in Kenya. African Affairs [ONLINE] Vol. 111, No. 443, pp. 244 – 260 Available from: https://doi.org/10.1093/afraf/ads018

Burke, J. 2017. Paul Kagame Re-elected President with 99% of Vote in Rwanda Election. The Guardian [ONLINE] August 5th. [Accessed: 08th November 2017] Available from: https://www.theguardian.com/world/2017/aug/05/paul-kagame-secures-third-term-in-rwanda-presidential-election

Campbell, C. and Turner, C. 2008. Utopia and the Doubters: Truth, Transition and the Law. Legal Studies [ONLINE] Vol. 28, No. 3 [Accessed: 17th January 2018] Available from: http://dx.doi.org/10.1111/j.1748-121X.2008.00093.x

Cheeseman, N., Anderson, D., & Scheibler, A. 2013. Routledge handbook of African Politics. London: Routledge.

Corey, A. and Joireman, S. 2004. Retributive Justice: The Gacaca Courts in Rwanda. African Affairs [ONLINE] Vol. 103, No. 410, pp. 73 – 89 [Accessed: 16th January 2018] Available from: https://doi.org/10.1093/afraf/adh007

Daly, E. 2002. Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda. New York. Journal of International Law and Politics. [ONLINE] Vol. 34, pp. 355 – 396 [Accessed: 07th November 2017] Available from: http://ssrn.com/abstract=1562012

Gacaca Community Justice 2018. Gacaca Community Justice: History [ONLINE] [Accessed: 16th January 2018] Available from: http://gacaca.rw/about/history-3/

Galtung, J. 1969. ‘Violence, Peace, and Peace Research,’ Journal of Peace Research [ONLINE] Vol. 6, No. 3, pp. 167– 191 [Accessed: 13th January 2018] Available from: http://www.jstor.org/stable/422690

Global Partnership for the Preventions of Armed Conflict – GPPAC. 2014. Transitional Justice in Kenya: A Historical Perspective and a Synopsis of a Troubled Truth Justice and Reconciliation Commission. [ONLINE]. Nairobi: Nairobi Peace Initiative – Africa [Accessed: 06th January 2018] Available from: http://www.gppac.net/documents/130492842/0/Policy+note+TJ+Kenya+v17Nov+\%281\%29.pdf/e0a76174-c1ed-4efc-94d3-f6064357cca4

Gready, P. 2010. ‘You’re either with us or against us’: Civil Society and Policy Making in Post-Genocide Rwanda, African Affairs [ONLINE], Vol. 109, No. 437, pp.637–657 [Accessed: 09th January 2018] Available from: https://doi.org/10.1093/afraf/adq038

Hansen, T. 2011. Transitional Justice in Kenya: An Assessment of the Accountability Process in Light of Domestic Politics and Security Concerns. California Western International Law Journal [ONLINE] Vol. 42, No. 1, pp. 1-36. [Accessed: 29th November 2018] Available from: http://heinonline.org/HOL/P?h=hein.journals/calwi42&i=3

Haynes, J. 2001. Democracy in the Developing World: Africa, Asia, Latin America and the Middle East. Cambridge: Polity Press.

Ingalere, B. 2009. Does the Truth Pass Across the Fire Without Burning? Locating the Short-Circuit in Rwanda’s Gacaca Courts. The Journal of Modern African Studies [ONLINE] Vol. 47, No. 4, pp. 507 – 528 [Accessed: 29th November 2018] Available from: https://doi.org/10.1017/S0022278X0999005X

Lugano, G. 2017. Counter-Shaming the International Criminal Court’s Intervention as Neo-colonial: Lessons from Kenya, International Journal of Transitional Justice, Volume 11, Issue 1, pp. 9–29, [Accessed: 05th January 2018] Available from: https://0-doi-org.wam.leeds.ac.uk/10.1093/ijtj/ijw026

Lynch, G. 2014. Electing the ‘Alliance of the Accused: The Success of the Jubilee Alliance in Kenya’s Rift Valley”. Journal of East African Studies [ONLINE] Vol. 8, No. 1, pp. 93 – 114. [Accessed: 02nd January 2018] Available from: http://dx.doi.org/10.1080/17531055.2013.844438

Mallinder, L. 2007. Can Amnesties and International Justice be Reconciled? The International Journal of Transitional Justice [ONLINE] Vol. 1, Issue 2, pp. 208 – 230 [Accessed: 29th November 2017] Available from: https://doi.org/10.1093/ijtj/ijm020

Mamdani, M. 2001. When Victims Become Killers: Colonialism, Nativism & the Genocide in Rwanda. Oxford: James Currey.

McAuliffe, P. 2017. Transformative Transitional Justice and the Malleability of Post-Conflict States. [ONLINE] [Accessed: 15th January 2018] Available from: http://dx.doi.org/10.4337/9781783470044

Miller, Z. 2008. Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice, International Journal of Transitional Justice [ONLINE] Volume 2, Issue 3, pp. 266–291, [Accessed: 12th January 2018] Available from: https://0-doi-org.wam.leeds.ac.uk/.1093/ijtj/ijn022

Miller, Z. 2013. Re-distributing Transition. International Journal of Transitional Justice. [ONLINE] Vol. 7, No. 2, pp. 370 – 380, [Accessed: 13th January 2018] Available from: https://0-doi-org.wam.leeds.ac.uk/10.1093/ijtj/ijt009

Mohammed, H. 2017. “Uhuru Kenyatta wins controversial Kenyan Polls.” Al Jazeera News [ONLINE] [Accessed: 09th January 2018] Available from: http://www.aljazeera.com/news/2017/10/uhuru-kenyatta-wins-controversial-kenyan-poll-rerun-171030132600418.html

Mwangi, W. 2010. The International Criminal Tribunal in Rwanda: Reconciling the Acquitted. In C. L, Sriram and S. Pillay (eds) Peace versus justice? : the dilemma of transitional justice in Africa. [ONLINE] Woodbridge: Boydell and Brewer Ltd.

Nouwen, S.M.H and Werner, W.G. 2015. Monopolising Global Justice: International Criminal Law as a Challenge to Human Diversity. Journal of International Criminal Justice. [ONLINE] Vol. 13, pp. 157-176[Accessed: 29th November 2017] Available from: https://doi.org/10.1093/jicj/mqu078

Orwell, G. 2004. Nineteen Eighty-Four. New York: Penguin Classics.

Pottier, J. 2002. Reimagining Rwanda: Conflict, Survival and Disinformation in the Late Twentieth Century. Cambridge: Cambridge University Press.

Reyntjens, F. 2006. Post-1994 Politics in Rwanda: Problematising ‘Liberation’ and ‘Democratisation’. Third World Quarterly [ONLINE] Vol. 27, No. 6, pp. 1103-1117. Available from: http://www.jstor.org/stable/4017742

Reyntjens, F. 2011. Constructing the Truth, Dealing with Dissent, Domesticating the World: Governance in Post-Genocide Rwanda. African Affairs [ONLINE] Vol. 110, No. 438, pp. 1-34, [Accessed: 15th January 2018] Available from: https://minerva.leeds.ac.uk/bbcswebdav/pid-4773844-dt-content-rid-5792299_2/courses/201516_30863_PIED3261/Reyntjens%20\%282010\%29%20Rwana%20Kagame.pdf

Scanlon, H. & N. Motlafi. 2010. Indigenous Justice or Political Instrument? The Modern Gacaca Courts of Rwanda. In C. L, Sriram and S. Pillay (eds) Peace versus justice? : the dilemma of transitional justice in Africa. Woodbridge: Boydell and Brewer Ltd.

Schuberth, M. 2013. The Politics of Knowledge Production in Post-Genocide Rwanda. The Strategic Review for Southern Africa [ONLINE], Vol. 35, No. 1, [Accessed: 09th January 2018] Available from: https://www.researchgate.net/publication/280238234_The_Politics_of_Knowledge_Production_in_Post-Genocide_Rwanda

Thompson, S. 2011. The Darker Side of Transitional Justice: The Power Dynamics between Rwanda’s Gacaca Courts. Africa [ONLINE] Vol. 81, No. 3, pp. 373 – 390, [Accessed: 04th January 2018], Available from: https://doi.org/10.1017/S0001972011000222

Vicencio, C. V. 2009. Walk with Us and Listen: Political Reconciliation in Africa. Washington: Georgetown University Press.

Wesangula, D. 2017. We Desperately needed change in Kenyan Politics. And we didn’t get it. The Guardian [ONLINE] August 10th. [Accessed: 08th November 2017] Available from: https://www.theguardian.com/commentisfree/2017/aug/10/political-change-election-kenyatta-odinga-kenya-tribe-patronage

A Critical Discussion of the Success of Past Transitional Justice Approaches in Kenya for Securing Peace and Reconciliation

By Anna Skinner

Anna Skinner is a graduate of the University of Leeds where she completed a BA International Development. Her research, professional and personal interests include migration trends, as well as issues pertaining to gender.

Abstract

Kenya’s 2007 election results sparked two months of grave violence. This article analyses Kenya’s response to the violence, and specifically the success of transitional justice approaches for achieving peace and reconciliation post 2007-2008. The article explores the important role that Kenya’s socio-political context played in the post-election violence, such as Kenya’s history of societal restructuring, favouring certain ethnic groups, which created the interrelation of ethnicity and politics and fostered ethnic tensions. Transitional justice approaches – including the Truth, Justice and Reconciliation Commission, a Special Tribunal, and eventually, the International Criminal Court’s intervention – lacked the support of Kenya’s leaders. This paper argues that, fundamentally, transitional justice efforts were impeded in achieving positive peace by failing to address socio-political symptoms. The article concludes that the inherent and enduring structural violence within institutions, policies and society hinders the ability to achieve lasting peace and reconciliation.

The discussion of this paper focuses on the response to the violence that occurred in Kenya after the 2007 elections. After the announcement of the election results, Kenya experienced two months of violence, which resulted in over 1000 deaths, hundreds of thousands of displaced people, buildings destroyed, and numerous acts of physical and sexual violence (Gibson and Long 2009, p.1, 5).

After outlining various terms useful for analysis, this article will look at the socio-political context in the preceding years of the 2007 elections, which laid foundations for the violence. This included the ethnically-based restructuring of society and land reforms. As a result, ethnicity and politics became closely intertwined, which contributed to creating a breeding ground for ethnic tensions. Next, the article will discuss some strategies used to gain political support in 2007 and the ensuing election violence. Then, the article will critically discuss the success of transitional justice approaches across post-conflict years – such as truth commissions and tribunals – to achieve peace and reconciliation in Kenya. It will analyse how and why socio-political factors impacted on the failure of long-term peace and reconciliation efforts.

The argument that this paper puts forward is that that Kenya’s transitional justice efforts failed largely due to the lack of commitment to address socio-political factors such as the ethnically based structural violence that still permeates society, which has impeded the ability for peace and reconciliation. The article also argues that the lack of support from Kenyan leaders has been a barrier to the success of peace and reconciliation efforts, and will continue to limit transitional justice attempts.

Definition of key terms

To clearly evaluate the success of past approaches to transitional justice for achieving peace and reconciliation, it is important to clearly understand the terms referred to.

Transitional justice is a society’s approach to justice in a transition period after conflict and human rights abuses have occurred, to achieve societal transformation in the form of democracy, peace and reconciliation (ICTJ, 2009). Reconciliation (as a process and end goal) can be defined as the movement of a society “from a divided past to a shared future” (Bloomfield 2003, p.12).

It is helpful to think about peace by thinking about violence, both of which can be thought about in two dimensions: positive and negative peace, and personal/direct violence and structural violence. In the past, peace has been considered “the absence of violence”, referring mainly to visible and direct forms of violence (Galtung 1969, p.168). Going a step further, negative peace is considered the “absence of organised personal/direct violence” (Galtung 1967, p.12; 1969, p.183), while positive peace is understood as the “absence of structural violence” or of social injustices and inequalities (Galtung 1969, p.183). Therefore violence cannot be simply seen as visible violent manifestations with a physical perpetrator – known as direct/personal violence (whilst not wishing to belittle these) (Galtung 1969, p.170). Structural violence relates to structures such as institutions and policies in society that favour certain social groups (based on class, ethnicity, gender) and oppress others, fostering and reproducing inequalities (Galtung 1969, p.170; Gready et al 2010, p.1; Cockburn 2004, p.43).

Cockburn further expands on theories of violence, arguing (specifically in relation to gender relations) that instead of viewing violence as a “single event”, it is better to look at it as a “continuum of violence” which occurs in social, economic and political areas of society (2004, p.43). By this she means that structural violence, specifically, is a constant present feature of societies that does not just occur and then not occur as physical violence does (2004, p.43).

Peace presents an interesting debate – particularly in contexts seeking justice – regarding whether peace is necessary for justice to be achieved or whether justice is required first to enable peace to prevail (Oette 2010; Ellis 2006, p.113). This is much debated within transitional justice institutions such as the International Criminal Court (ICC) (Kerston 2014).

Kenya’s Pre-2007 Context

Part of understanding the violence that took place in 2007-2008 requires understanding the socio-political context in the years, and even decades, preceding this particular period of violence. Kenya’s violence (historically, and in 2007) was rooted in ethnic tensions, which were intertwined with tensions and injustices around politics and resources, specifically land (Ndungú 2014). This is largely owing to Kenya’s colonial inheritance, the structures and mentalities established by previous colonial administrations, which still prevail (Nyawalo et al, 2011, p.36).

Like many former colonies, Kenya experienced significant ethnically based restructuring, which divided the country into ‘tribes’ primarily for ruling purposes (Nyawalo et al, 2011, p.36; De Smedt, 2009, p.583). The colonial and post-colonial government also reformed land distribution through processes like settlement schemes based on ethnicity (Kanyinga, 2009, p.326) and via networks of patronage, whichin post-colonial years were also closely based on ethnicity, in return for support (De Smedt, 2009, p.583). Therefore “ethnic groups became political tribes” (De Smedt, 2009, p.583). This meant that land and politics were “ethnicised” from early on and, so, inequalities surrounding land distribution also had ethnic lines (Kanyinga, 2009, p.326).

Given that ethnicity permeated other areas of Kenyan society, it inevitably became a big feature of political divides at local and government level. As Kanyinga argues, this “laid a firm foundation for political conflict”, which Kenya experienced on several occasions even before 2007 (Kanyinga, 2009, p.326). Inequalities in Kenya have subsequently also historically been heavily based on ethnic groups, with several previous administrations (including Mwai Kibaki’s governments in power at 2002 and 2007 elections) favouring the Kikuyu people (Nyawalo, 2011, p.34). This has been particularly prevalent in issues over land, with land disputes and other tensions between Kalenjin and Kikuyu communities spanning for years (Roberts, 2009, p.14). For example, when the colonial administration handed power over to President Jomo Kenyatta, land previously seized by the government (in areas such as the White Highlands) was left in the hands of Kenyatta’s government leaders and was distributed among their ethnic patronage networks, which mainly favoured Kikuyu (Rawlence and Albin-Lackey, 2008).

Therefore those of the Kalenjin tribe and other smaller tribes have experienced structural violence through unequal land access, rights, and regarding distribution of and access to other resources. As a result, ethnic groups have been deliberately and strategically encouraged to compete against each other. Berman describes this as “political tribalism” (1998, p.305; De Smedt, 2009, p.584). This competition creates greater identification with one’s ethnic group, by emphasising the distinction between ‘us’ and ‘them’; the fortunate and the less fortunate who miss out on access to these resources (Berman, 1998, p.327).

With the knowledge of the prominent ethnic divisions and structural violence experienced, one can better understand the way political leaders have tactfully harnessed support during election times.

Post-election Violence

The violence that followed the 2007 election results was partly a response to the election result, and partly promoted by strategies used to acquire political support, which emphasised grievances and ethnic injustices amongst Kenyans.

Commonly used strategies have been based on ethnicity and patronage networks to distribute resources that those in power have access to, to cronies within these networks (which in Kenya tend to be ethnically based). During elections, populist strategies have commonly been implemented, using injustices such as deprivations or negative public feeling to gain the united support of a group of people against ‘others’, united by deprivations (Albertazzi and McDonnell, 2008, p.3; Cheeseman and Larmer, 2013, p.1). In Kenya’s 2007 elections (and at other critical times), ‘ethno-populism’ was used, uniting certain ethnic groups based on their ethnic exclusion and grievances, against other ethnic groups such as the Kikuyu supposedly responsible for the grievances and structural violence experienced (Cheeseman and Larmer, 2013, p.1).

After Kenyans had gone to the polls, the Electoral Commission of Kenya (ECK) was notably late in announcing who had won, but eventually they announced the Party of National Unity (PNU) and Mwai Kibaki’s victory, despite “rumours of rigging and malpractice” (Gibson and Long, 2009, p.1; Roberts, 2009, p.3; Jenkins, 2012, p.576). There were considerable doubts regarding the legitimacy of the outcome and the fairness of the process including the vote-counting, which, combined with frustrations with political leaders’ false promises, sparked violence (Jenkins, 2012, p.576; Mueller, 2008, p.194; Roberts, 2009, p.4).

The two months of violence that took place involved and affected all kinds of people at different levels of the society (Gibson and Long, 2009, p.5). However, it was largely divided along ethno-political lines, with supporters of the opposition, the Orange Democratic Movement (ODM) targeting Kibaki’s supporters, and vice-versa retaliation (Jenkins, 2012, p.576). This period saw over 1200 deaths and at least 350,000 displaced (Gibson and Long, 2009, p.1; Roberts, 2009, p.2; Jenkins, 2012, p.576). Other violence included lootings, destroying properties, driving people out of their communities, physically and sexually attacking people, and police shootings to deter or stop demonstrations (De Smedt, 2009, p.590; Rawlence and Albin-Lackey, 2008).

Transitional Justice Approaches in Kenya

In response to this violence, Kenya established a Commission of Inquiry into the Post-Election Violence (CIPEV) – also known as the Waki Commission – with the purpose of investigating the post-election violence’s causes and consequences (Thomson and Kihiker, 2017, p.5; Mueller, 2014, p.30). The Waki Commission recommended establishing a Truth, Justice, and Reconciliation Commission (TJRC), and a Special Tribunal, to allow deeper investigation and prosecution of individual cases as well as police reforms (Thomson and Kihiker, 2017, p.5).

The recommended TJRC, although swiftly established in 2008, had limited success given the lack of a lack of wide awareness of its report (Ndungú 2014, p.2; TJRC, 2013, p.1). One success was that the TJRC did conduct public hearings, which allowed victims, witnesses and perpetrators to present their stories (TJRC, 2013, p.1). However, the report – outlining findings including perpetrators, and recommendations including reparations – experienced significant delays in being published, which also delayed implementing its recommendations (Thomson and Kihiker, 2017, p.6, 9; Asaala and Dicker, 2013, p.341). Part of these delays came from people in positions of power who were named in the report as perpetrators, who managed to stall the approval of the report and mobilise support against it (Thomson and Kihiker, 2017, p.9).

The Special Tribunal, intended to be composed of Kenyan and international judges, was never established (Asaala and Dicker, 2013, p.345). Likely reasons are that it was never pushed by Kenyan politicians due to fears of political corruption or of being personally prosecuted (Thomson and Kihiker, 2017, p.5; Mueller, 2014, p.30; Brown and Sriram, 2012, p.252). After endless delaying-tactics and lack of commitment by Kenyan political leaders, the failure to implement this recommendation mandated the ICC to intervene and begin its investigation (Mueller 2014, p.30; Thomson and Kihiker, 2017, p.5)

The ICC’s investigations began in 2010 and involved six of Kenya’s political leaders believed to have played some role in the 2007 post-election violence (Endoh and Mbao, 2016, p.276). In 2012, then Deputy Prime Minister Uhuru Kenyatta and MP William Ruto were among four of the six charged with crimes against humanity, while simultaneously campaigning for presidential election the following year (Endoh and Mbao, 2016, p.277). Along with other political leaders, Kenyatta and Ruto were actively and outspokenly against the ICC’s involvement, not co-operating nor providing evidence (Mueller, 2014, p.25, 31). They framed the ICC as a neo-colonial, western imperialist power (Lynch, 2015, p.188; Mueller, 2014, p.31). These political leaders were also found to have bribed and intimidated witnesses testifying against them, in attempt to weaken the case against them (Mueller, 2014, p.33-34).

This was considered by the ICC investigators their most challenging case yet, largely due to various methods of resistance by Kenya’s government and leaders (Mueller, 2014, p.26; Hansen 2016). Although Kenya permitted these investigations taking place, political leaders strategically strived to limit the ICC’s ability to successfully and thoroughly investigate the cases (Mueller, 2014, p.26;). Eventually, Kenyatta’s case (and others’) collapsed (Hansen, 2016).

Criticisms and Limitations of the Transitional Justice Approaches in Kenya

The ICC’s involvement as a transitional justice method has had questionable success in terms of achieving justice, and even more questionable success in achieving peace and reconciliation. Ellis (2006, p.113) argues that justice is needed for lasting peace to be reached. However, many consider the ICC to have prioritised justice at the expense of peace and reconciliation, and failed even at achieving justice through retribution efforts that attempted to punish high-level orchestrators of violence (Lynch, 2014, p.107; Lynch, 2015, p.186; Tambe Endoh and Mbao, 2016, p.279-280).

After giving Kenya’s leaders several chances to follow through with promises of domestic-level investigations, the ICC Prosecutor opened a proprio-motu investigation, at his own discretion (Mueller, 2014; Hansen, 2016). The ICC reserved the right to intervene due to Kenya’s theoretical commitment to the Rome Statute, the Court’s founding treaty. However, the ICC intervention never received genuine support from the Kenyan government, despite Kenya being a signatory to the Rome Statute.

There are claims that the ICC did not carry out investigations thoroughly, relying too much on the Waki Commission’s and other investigations’ findings (Lynch, 2015, p.186). Others claim that the ICC was biased towards certain political leaders. For example, Raila Odinga (leader of the ODM party) was not included in the six named to be investigated, despite rumours that he was involved in inciting the 2007-08 violence (Lynch, 2015, p.186; Jenkins, 2012, p.576). On similar lines, some have suggested that Odinga and other politicians who approved of the ICC’s investigation, may have done so primarily for political motives, since they were not tainted as the ‘baddies’, and, with the 2013 elections approaching, Odinga particularly may have seen it as a way to acquire political backing, rather than for the purpose of achieving peace, justice and reconciliation (Lynch, 2015, p.186).

Interestingly, while leaders such as Kenyatta and Ruto did not support the ICC’s involvement in Kenya, during their campaigns for the 2013 elections the anti-ICC rhetoric provided a tool for acquiring support for a new Jubilee Alliance (which comprised Kenyatta and Ruto, the representatives of the two previously opposing ethnic groups Kikuyu and Kalenjin) (Mueller, 2014, p.25-26; Lynch, 2015, p.188). This alliance justified claiming they were the ones truly committed to bringing peace and reconciliation to Kenya, while the ICC’s approach was biased, based solely on punishment and justice, and therefore Odinga supporting the ICC’s ‘side’ tarnished him with the same brush (Lynch, 2014, p.107; 2015, p.188).

Thus, while perhaps not how expected, the ICC’s involvement in Kenya provoked a situation of reconciliation to some extent, uniting once warring groups in the new alliance. The anti-ICC and pro-Jubilee rhetoric also promoted a peaceful, anti-violence period around the 2013 elections, which possessed a much stronger emphasis on peace, with urges for peaceful elections coming from not only political leaders, but other positions of influence (Lynch, 2015, p.184). However, this does not necessarily reflect that lasting and sustainable peace and reconciliation had been established (Gready et al., 2010, p.2). It could have been politically motivated, with the hope that the Jubilee Alliance setting a good example of peace and reconciliation around this political event would secure them greater voting support.

A major issue with the transitional justice approaches undertaken in Kenya is that they placed greater emphasis, time and resources into efforts that would treat the symptoms of the violence, rather than addressing its roots, the socio-political factors that caused the violence (Gready et al., 2010, p.1). Therefore it seems that only negative peace was achieved in the years of transitional justice and peace building efforts following the 2007 post-election violence, owing to the absence of direct violence. Despite this, positive peace was not achieved since structural violence is still a prominent and pervasive feature of society.

Structural violence within Kenya in the form of ethnic exclusions in land and opportunities felt by ethnic groups such as the Kalenjin and minority groups was significant in conceiving the anger and injustice people felt which fuelled the outbreak of physical violence. Several scholars argue that while structural violence and these exclusions remain unaddressed and still “persist in Kenyan society and consciousness, the potential for violent confrontation between groups remains high” (Jenkins, 2012, p.596; Lynch, 2014, p.98). Thus, the ability for positive peace and reconciliation to prevail was and is limited, as long as these ethnic exclusions create high potential for violence.

To this end, transitional justice approaches should have addressed the exclusionary narratives felt by civil society, as well as narratives of ethnicity and exclusion inherited from past regimes that were played upon by political leaders (Cheeseman and Larmer, 2013, p.1). Several scholars and observers have argued that a transformative justice approach would have been more successful than transitional justice approaches (Gready et al., 2010, p.1; Gready and Robins, 2014). Transformative justice seeks to address and see transformation in the unequal structures of society, which (in Kenya and other countries) have facilitated and catalysed physical violence (Gready et al., 2010, p.1; Gready and Robins, 2014).

Moreover, it has become widely known that political leaders at the highest level and at local levels were involved in orchestrating and encouraging the violence, as will be discussed. ODM and PNU supporters alike arranged meetings and raised funds to facilitate the violent reaction (PNU supporters mobilised Kikuyu militia in retaliation to ODM supporters who attacked), particularly in Nairobi’s slum areas and the Rift Valley where many of the land disputes exist (Rawlence and Albin-Lackey, 2008). The ODM, particularly, mobilised groups of young people who were already angry at politicians’ false promises about their future prospects’ (Roberts, 2009, p.11). The police also committed hundreds of atrocities, by opening fire on unarmed civilians and children and shooting to stop demonstrations or even prevent and deter them from happening (Rawlence and Albin-Lackey, 2008). Reforms within the armed forces were needed in order for the potential for future violence to be minimised (particularly around the 2013 elections) and for peace and reconciliation to truly be a possibility (Lynch, 2014, p.98; Ndungú, 2014, p.5).

Additionally, by 2007, a present feature of society was gang violence, and political leaders in the past and at this time, had hired gangs to ‘deal with’ opposition supporters and carry out violent attacks or retaliations (Mueller, 2008, p.194; Ndungú, 2014, p.6). This presented difficulties regarding investigating situations involving people in positions of power, since they are the ones holding or with access to the required information (Ndungú, 2014, p.6; Brown and Sriram, 2012, p.258). Leaders’ reluctance to cooperate in investigations that put their power at stake reflects a lack of commitment at the higher level within Kenyan society in bringing justice and peace in Kenyan society post-conflict (Ndungú, 2014, p.6,10).

Thus, what has developed is a lack of trust among society, significantly in officials and institutions, including the judiciary, due to past experiences of institutional failures, ethnic oppression, and politicians’ false promises, corruption and biases within the police (Thomson and Kihiker, 2017, p.20). This raises issues about how effectively peace can be achieved, if corruption and inequalities exist within institutions and politics. Returning to the peace versus justice debate, Ellis’ argument that “there can be no lasting peace without justice, and justice cannot exist without accountability“ (2006, p.113), suggests that the impunity, lack of accountability or transparency within Kenya’s leaders, heavily impedes on the ability to achieve sustainable peace and reconciliation.

Conclusion

While the post-2007 years saw a period of negative peace without similar violence recurring, the transitional justice efforts were not successful in terms of achieving positive peace, addressing deep-rooted inequalities and injustices in the Kenyan society. The structural violence deeply ingrained in the Kenyan society needed addressing in order to deal with the root causes of the violent outbreak. With Cockburn’s “continuum of violence” in mind (2004, p.43), one can better understand how addressing structural violence in Kenya requires targeting all areas of society. In Kenya, it is vital to consider how and where (for example in politics, economic opportunities, land rights) structural violence has historically affected and presently continues to affect society and social groups, such as the Kalenjin.

Moreover, the transitional justice methods, such as the ICC’s intervention and the TJRC, needed the support of all actors within society, particularly those in positions of influence. These peace, justice and reconciliation efforts that should have addressed the structural violence, needed endorsement from above, by political leaders, in order to see a ripple effect in wider areas of society to potentially change exclusions and divisions. Without addressing structural violence and without influential people advocating for this change for the sake of peace and reconciliation, the potential for violence in Kenya remained and will remain high, while the potential for positive peace remains low.

Thus, transitional justice should be part of a broader effort that strives to build peace in Africa – and in this case in Kenya. Justice is required to some extent in order to provide accountability for crimes committed, however, other efforts that address reconciliation and peace should not be discounted at the expense of solely achieving retributive justice. In cases such of that of Kenya, achieving post-conflict peace and reconciliation involves identifying, challenging and reforming areas of society where structural violence prevails. By doing this, the potential for conflict to be triggered is limited as injustices and anger are minimised, allowing peace to be more profoundly and genuinely achieved.

Bibliography

Albertazzi, D. and McDonnell, D. 2008. Twenty-First Century Populism: The Spectre of Western European Democracy. Hampshire: Palgrave Macmillan.

Berman, B.J. 1998. ‘Ethnicity, Patronage and the African State: The Politics of Uncivil Nationalism.’ African Affairs, 97(389), pp. 305-341.

Bloomfield, D. et al. 2003. Reconciliation After Violent Conflict – A Handbook. International Institute for Democracy and Electoral Assistance. Sweden: Bulls Tryckeri AB Halmstad.

Brown, S. and Sriram, C.L. 2012. ‘The Big Fish Won’t Fry Themselves: Criminal Accountability For Post-Election Violence in Kenya.’ African Affairs, 111(443), pp. 244-260.

Cheeseman, N. and Larmer, M. 2013. ‘Ethnopopulism in Africa: opposition mobilization in diverse and unequal societies.’ Democratization. pp. 1-24.

Cockburn, C. 2004. The Continuum of Violence: a Gender Perspective on War and Peace. In Giles, W. and Hyndman, J. eds. 2004, Sites of Violence – Gender and Conflict Zones. California: University of California Press pp. 24-45.

De Smedt, J. 2009. ‘ ‘No Raila, No Peace!’ Big Man Politics and Election Violence at the Kibera Grassroots.’ African Affairs, 108(433), pp. 583-590.

Ellis, M. 2006. ‘Combating Impunity and Enforcing Accountability as a Way To Promote Peace and Stability. The Role of International War Crimes Tribunals.’ Journal of National Security Law and Policy, 2(111), pp. 111-164.

Endoh, F.T. and Melvin Mbao, ML. 2016. ‘Political dynamics in Kenya’s post-electoral violence: Justice without peace or political compromise?’ African Security Review, 25(3), pp. 275-287.

Galtung, J. 1967. Theories of Peace: A Synthetic Approach to Peace Thinking. Oslo: International Peace Research Institute.

Galtung, J. 1969. Violence, Peace and Peace Research. Oslo: International Peace Research Institute.

Gibson, C.C. and Long, J.D. 2009. ‘The Presidential and Parliamentary Elections in Kenya, December 2007.’ Electoral Studies, pp. 1-10.

Gready, P., Boeston, J., Crawford, G. and Wilding, P. 2010. Transformative Justice – A Concept Note, [Online]. pp. 1-4. [16/1/18] Available from: https://wun.ac.uk/files/transformative_justice_-_concept_note_web_version.pdf

Gready, P. and Robins, S. 2014. ‘From Transitional to Transformative Justice: A New Agenda for Practice.’ The International Journal of Transitional Justice. 8(3), pp. 339-361.

Hansen, O.T. 2016. ‘Referring Kenya to the ICC Assembly of States Parties, Part 1: A battle for the narrative. 3/10/16.’ Justice In Conflict, [Online]. [12/1/18] Available from: https://justiceinconflict.org/2016/10/03/referring-kenya-to-the-icc-assembly-of-states-parties-part-1-a-battle-for-the-narrative/

ICTJ 2009. What is transitional justice? Focus: Transitional Justice. International Center for Transitional Justice, [Online]. [14/1/18] Available from: http://ictj.org/sites/default/files/ICTJ-Global-Transitional-Justice-2009-English.pdf

Jenkins S. 2012. ‘Ethnicity, Violence and the Immigrant-Guest Metaphor in Kenya.’ African Affairs, 111(445), pp. 576-596.

Kanyinga, K. 2009. ‘The legacy of the white highlands: Land rights, ethnicity and the post-2007 election violence in Kenya.’ Journal of Contemporary African Studies, 27(3), pp. 325-328.

Kerston, M. 2014. ‘Bringing Conflict into the Peace Versus Justice Debate. [9/10/14].’ Justice In Conflict, [Online]. [12/1/18] Available from: https://justiceinconflict.org/2014/12/09/bringing-conflict-into-the-peace-versus-justice-debate/

Lynch, G. 2014. ‘Electing the ‘alliance of the accused’: the success of the Jubilee Alliance in Kenya’s Rift Valley.’ Journal of Eastern African Studies, 8(1), pp. 98-107.

Lynch, G. 2015. ‘The International Criminal Court and the Making of a Kenyan President.’ Current History, 114(772), pp. 184-188.

Mueller, S. 2008.‘The Political Economy of Kenya’s Crisis.’ Journal of Eastern African Studies, 2(2), pp. 186-200.

Mueller, S. 2014. ‘Kenya and the International Criminal Court (ICC): politics, the election and the law.’ Journal of East African Studies, 8(1), pp. 25-37.

Ndungú, C.G. 2014. ICTJ Briefing – Lessons to Be Learned: An Analysis of the Final Report of Kenya’s Truth, Justice and Reconciliation Commission. Nairobi: ICTJ Nairobi, [Online]. [16/1/18]. Available from: https://www.ictj.org/sites/default/files/ICTJ-Briefing-Kenya-TJRC-2014.pdf

Nyawalo, P.A. et al 2011. The Invisible Violence in Kenya. A Case Study of Rift Valley and Western Regions. [Online]. Nairobi: Konrad Adenauer-Stiftung, pp. 34-38. [15/1/18] Available from: https://www.researchgate.net/profile/Manasseh_Wepundi/publication/289252329_The_Invisible_Violence_An_opportunity_of_Peace_Building_A_Case_Study_of_Nyanza_Rift_Valley_and_Western_Province/links/58da2dcf45851578dfb147ca/The-Invisible-Violence-An-opportunity-of-Peace-Building-A-Case-Study-of-Nyanza-Rift-Valley-and-Western-Province.pdf

Oette, L. 2010. ‘Peace and Justice, or Neither? The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond. Crimes in Darfur Before the ICC: Five Years On.’ Journal of International Criminal Justice, 8, pp. 345-364.

Rawlence, B. and Albin-Lackey, C. 2008. Ballots to Bullets: Organised Political Violence and Kenya’s Crisis of Governance. Human Rights Watch.[Online]. [12/1/18]. Available from: https://www.hrw.org/report/2008/03/16/ballots-bullets/organized-political-violence-and-kenyas-crisis-governance

Roberts, M.J. 2009. Conflict Analysis of the 2007 Post-Election Violence in Kenya. [Online]. pp. 2-15. [15/12/18]. Available from: http://ndpmetrics.com/papers/Kenya_Conflict_2007.pdf

Thomson, A. and Kihika, K.S. 2017. ‘Victims Fighting Impunity: Transitional Justice in the African Great Lakes Region.’ International Center for Transitional Justice. [Online]. [10/1/18]. Available from: https://www.ictj.org/sites/default/files/Great_Lakes_Report_March.pdf

TJRC 2013. ‘Summary: Truth, Justice and Reconciliation Commission Report.’ Kenya Transitional Justice Network. [Online]. [17/1/18]. Available from: http://www.acordinternational.org/silo/files/kenya-tjrc-summary-report-aug-2013.pdf

Not All Pandora’s Boxes Are the Same: If Transitional Justice Is to Be Effective a One-size-fits-all Approach Is Not the Right Choice

By Domenico Carofiglio

Domenico Carofiglio graduated from the War Studies Department of King’s College London in 2016. He is now pursuing a double degree in Public Policy and Development at Sciences Po Paris and Bocconi University.

Abstract

This article analyses the role of transitional justice as a tool able to establish a link between the local and global, the national and international, the particular and the universal. By drawing on examples from Nigeria and East-Timor, this article explores the tension between the global and the local, and the resulting outcomes when one excessively overcomes the other. In doing so, the article looks at the effectiveness and relevance of transitional justice by focusing on its relation with the discourses of global politics, arguing that for transitional justice to be effective a one-size-fits-all dimension is to be discarded in favour of an application of transitional justice as a legal tool that helps communities to find their own way to come to terms with a tormented past. The imposition of de jure universally-applicable rules does not necessarily bring about de facto effectiveness of such rules; the local realities where these rules apply cannot be ignored. This paper begins by defining transitional justice, globalisation and globalised politics, and it will shed light on what is meant by local needs. Building on the definitions provided, the second section will outline a theoretical framework for the arguments at issue, by focusing the attention on the link between transitional justice and global politics; as will be seen, such a connection is theoretically informed by concepts of globalisation, glocalisation and liberalism. Finally, beyond the traditional examples used in the transitional justice literature, such as those of Rwanda and Uganda, the essay focuses on the cases of Nigeria and East-Timor.

An Introduction to Transitional Justice

‘Transitional justice as a concept emerged from a global wave of political transitions’ (Apland, 2012). Indeed, those countries that recently transitioned to democracy could not do so without coming to terms with their tormented past. Abuses and wrongdoings had to be addressed and overcome in order to pave the way for intergroup and national reconciliation. This is how transitional justice came about. In his seminal article “Democracy’s Third Wave”, Samuel Hungtinton stated that since the beginning of the 1970s up until the end of the century, ‘at least 30 countries made transitions to democracy’ (1991, p.12). The concept of transitional justice is strongly interwoven with the broader phenomena of democratisation, and ultimately, with globalisation. More precisely, the discourse of transitional justice today has a global normative reach whose ramifications extensively affect international affairs (Teitel, 2014).

This article shall analyse the role of transitional justice as a tool able to establish a link between the local and global, the national and international, the particular and the universal. By drawing on examples from Nigeria and East-Timor, this article will hence explore the tension between the global and the local, and the resulting outcomes when one excessively overcomes the other. In doing so, it will look at the effectiveness and relevance of transitional justice by focusing on its relation with the discourses of global politics, arguing that for transitional justice to be effective a one-size-fits-all dimension is to be discarded in favour of an application of transitional justice as a legal tool that helps communities to find their own way to come to terms with a tormented past. The imposition of de jure universally-applicable rules does not necessarily bring about de facto effectiveness of such rules; the local realities where these rules apply cannot be ignored. This paper begins by defining transitional justice , globalisation and globalised politics, and it will shed light on what is meant by local needs. Building on the definitions provided, the second section will outline a theoretical framework for the arguments at issue, by focusing the attention on the link between transitional justice and global politics; as will be seen, such a connection is theoretically informed by concepts of globalisation, glocalisation and liberalism. Finally, beyond the traditional examples used in the transitional justice literature, such as those of Rwanda and Uganda, the essay focuses on the original cases of Nigeria and East-Timor.

A matter of definitions

The concept of transitional justice points out at a legal scholarship. However, it would be quite simplistic to look at it as a mere subject of judicial academic inquiry. Indeed, the theorisation and mise en œuvre of transitional justice is an enterprise that involves not only academicians but also, for its very nature, a plethora of other actors ranging from human rights activists and lawyers to sociologists, anthropologists and policy-makers (Hinton, 2010; Rush and Simic, 2014). To be clear, by drawing on the definitions offered by a series of authoritative sources, transitional justice can essentially be seen as a set of judicial and non-judicial mechanisms to achieve peace and reconciliation and to restore justice in societies affected by mass atrocities and wrongdoings committed by authoritarian and repressive regimes (Roth-Arriaza and Marriezcurrena, p.1; Teitel, 2003, p.893; Mani, 2002, p.17; UN Secretary General, 2004, p.5). When defining transitional justice, Hinton adds that ‘it is critical to explore how a sense of justice after genocide and mass violence is always negotiated within particular localities enmeshed with global and transnational flows of ideas and ideologies’ (2010, p.1). Hinton’s consideration touches upon the link between transitional justice and globalisation on a conceptual level; this link will be further analysed in the theoretical section.

Joseph Stiglitz generally provides a standard definition of globalisation as ‘the closer integration of the countries and peoples of the world […] and the breaking down of artificial barriers to the flows of goods, services, capital, knowledge, and people across borders’ (2002, p.3). The Global Politics scholarship investigates the processes resulting from political globalisation in relation to questions of social power. At the heart of the field is the emergence and growing influence of international organisations, non-state actors, multinational corporations and social movements, all at the expense of the state and its Westphalian significance (Nye, 1990). Equally important, global politics concerns matters of global governance and decision-making which fluctuate between, and are in tension with, the national and supranational.

Whereas the previous definitions are straightforward, it is rather difficult to define what local needs are really about. In its ‘one-size-fits-all solutions’ conceptualisation (Nagy, 2008, p.287), transitional justice serves the purpose of shedding light on abuses and atrocities and its perpetrators in order to create a democratic society. Reconciliation of those who have survived is thus fundamental to fulfil the ultimate objectives of establishing a human rights regime, rule of law and democracy. However, these liberal globalised principles are not always an adequate response to what the local needs truly are (see theoretical section). In the context of North-African countries that are de jure transitioning to democracy after the Arab Spring, the ‘Islamists largely reject the universal claims of human rights, stressing rather the specificity of local needs and contexts and a different set of norms’ (Robins, 2015, p.187). While it is debatable the extent to which these countries are de facto transitioning to democracy, agreement can be reached on the argument that local needs should be always defined depending on the reality in question and on ad-hoc basis. While each and every reality should not remain insulated from the global, it is not necessarily the case that all realities are apt for the appliance of universal ‘liberal democratic politics and neoliberal economics’ (Robins, 2015, p.190) that are part of the liberal globalisation “package” brought about by transitional justice (see case-study section). Local needs are undoubtedly subject to specific circumstances that change from case to case.

To conclude on these points, globalisation results in specific processes which raise issues at the heart of the academic inquiry of global politics. In light of the connection between transitional justice, globalisation and global politics, Ruti G. Teitel notes that ‘important normative questions arise in the interaction of transitional justice and globalisation’ (Teitel, 2002, p.899). Framed in global politics terms, Teitel (2002, p.899) asks: ‘at what level should the relevant decision-making regarding transitional justice occur?’. Teitel’s considerations bring us to the following section that provides a theoretical rationale for better understanding the relation between global politics and transitional justice.

A theoretical framework: transitional justice, globalisation, glocalisation, and liberalism

Globalisation

By looking at the relation between globalisation and transitional justice, it is shown that globalisation has the effect of making transitional justice a technocratic legal tool that ignores lived realities. That is, globalisation makes transitional justice more detached from the local realities it deals with and it shifts transitional justice’s very objectives from the establishing of democracy and the rule of law in a country transitioning to democracy, to the mere ‘adherence [of that country] to a modicum order’ (Teitel, 2002, p.898). The glocalisation discourse provides an understanding of globalisation whereby the global and the local are seen in complementarity rather than in contradiction with each other (Robertson, 1994). Indeed, as long as there is excessive emphasis on one way or the other, transitional justice will not be able to grasp the demands of lived realities and correctly address them in relation to globalised politics. The fact that transitional justice primarily looks at high politics rather than starting from ‘the deep politics of a society and asking what this implies for the high politics of the state’ (Andrieu, 2010, p.545) demonstrates how transitional justice is fundamentally entrenched with a liberal ideology; whereby political rights are privileged over social, economic and cultural ones. This further limits the capacity of transitional justice to understand local realities and to correctly frame the latter in the now globalised texture of world politics.

Against the background of the complex relationship between globalisation and transitional justice, Teitel discusses ‘the increasing detachment of transitional justice from local politics and its corresponding transformation into a form of global law and politics’ as well as its ‘increasing globalisation’ (2014, p.1). Hence, the issue of the impact of globalisation on transitional justice’s appliance seems to be one of agreement (Teitel, 2014). Nonetheless, it is not clear whether globalisation directs transitional justice towards a decentralisation of justice by accommodating global forces to local realities or rather to judicial decision-making occurring at the global level (Teitel, 2002). In this regard, Teitel states that despite being born as a tool for spreading a universal rights paradigm, after the Cold War transitional justice came to be too entrenched in local ideas of legitimacy and the rule of law, with the risk of ignoring the actual power politics framework induced by ‘post-Cold War globalising transformations’ (Teitel, 2002, p.893).

Transitional justice’s vacillation between the local and the supranational is symptomatic of the tension at the heart of ‘contemporary global politics’ (Teitel, 2002, p.893). Despite Teitel’s sound arguments in “Transitional Justice in a New Era” (2002) whereby she argues that globalised transitional justice is in fact too local in its legal approach, it appears instead that globalisation is forcing transitional justice towards the application of liberal globalised principles, such as the rule of law, democracy and human rights while ignoring tout court local specificities and their interaction with global political mechanisms. In fact, Nagy affirms that the actual impact of globalisation on transitional justice is that its response to local realities is made in globalised legalistic terms which are too abstract if the aim is to positively engage with local ‘lived realities’ (Nagy cited in Teitel, 2002 p.276). Similarly, Hinton suggests that by considering justice as something transcendent and universally applicable, the local perceptions of justice are ignored and this dooms transitional justice to certain failure (Hinton, 2010). By analysing the case studies of Nigeria and East-Timor, this essay will show that Teitel’s arguments on the globalised nature of transitional justice, as well as its ‘independent potential’ (Nagy, 2008, p.277) in shaping political and social transitions, are not universally applicable. The independent power of justice is not effective ‘in societies such as those of the Arab world […] where the secular assumptions of a globalised liberalism are rejected by significant segments of the population, as well as important political actors’ (Robins, 2015, p.287). Consent and legitimacy are clearly a conditio sine qua non if transitional justice is to be efficient in allowing war-torn societies to come to terms with past violence and repression. In line with Nagy’s argument, the case studies will prove that globalised transitional justice is often blind to the very local needs it tries to engage with.

Globalisation not only influences transitional justice in the application of an international legalist paradigm far from local realities, but more importantly it also alters the objectives of transitional justice. Globalisation often results in the devolution of the nation-state paradigm whereby the traditional state power is heavily constrained, hence transitional justice has a shift in its goals: whilst originally aiming at bringing about democracy and the rule of law, globalisation forces transitional justice to pursue more modest goals of peace and stability, and more generally human security (Teitel, 1999; 2002; 2014). The question is whether this kind of response brought about by globalisation is more appropriate and universally applicable than the original aims of the rule of law and democracy. As touched upon in the definition of globalisation and global politics, there are today new actors besides the traditional and supreme agency of states in the international arena; this development must necessarily mean that there are more interests at stake which are not only linked to states but also to transnational NGOs and more generally to the global civil society (Nye, 1990). From a normative perspective, it is plausible to think that by promoting peace, the rule of law and democracy will necessarily come along. However, as Teitel (2002) argues, it is unclear how short-term peace-making operations will eventually bring about the advancement of the rule of law. Given these considerations, the question regarding the appropriateness of today’s transitional justice objectives as imposed by globalisation can hardly be answered, especially in normative terms. Nonetheless, it can be argued that the recent focus of transitional justice on general human security is more applicable to highly diverse local realities than the liberal principles of rule of law and democracy (Teitel, 2014).

Glocalisation

The progression of transitional justice with globalising politics implies a bi-dimensional interaction of the supranational/global and the national/local. To analyse this interaction, Roland Robertson (1994) uses the term glocalisation, which he intends as a deconstruction of globalisation. The term synthetises the broader concepts of globalisation and localisation not as an antinomy but rather as being in a continuous interaction whereby ‘the global is not in and of itself counter posed to the local’ (Robertson, 1994, p.35). The concept of glocalisation does not modify the considerations made with regards to globalisation’s impact on transitional justice; nonetheless, it helps to understand the complex dimension where transitional justice operates and how it could be improved. Robertson (1994) argues that it is incorrect to see the local assertions of norms, rules and identities as against, and at the same time, challenged by globalising trends. Transitional justice should ultimately work for the connection of these dimensions – supranational and national, universal and particular. That is, by looking at transitional justice through glocal lenses, the former could be envisaged as a tool where the global and the local are harmonised and in mutual complementarity, rather than an international legalist paradigm which works at the expense of local assertions of justice.

Therefore, it can be argued that the glocalisation discourse could help transitional justice overcome the traditional polarity between the global and local found in both Teitel and Rosemary Nagy’s works on the globalisation of transitional justice. In this sense, Robertson (1994) refers to the idea of a global culture as ultimately informed and shaped by local cultures. This interconnectedness, in Robertson’s thinking, does not envisage global culture as a mere ‘homogenisation of all cultures’ (1994, p.31). On the contrary, when one refers to the idea of global justice, it can be argued that rather than trying to engage with and be receptive to local conceptions of justice, transitional justice might eventually end up becoming a homogenising tool for global justice. When the global Westernised justice paradigm completely ignores local needs, local specificities and societal demands are likely to put into question the legitimacy of one-size-fits-all international legal institutions as the International Criminal Court. This was exactly the case in the context of Rwanda and Uganda’s transition to democracy whereby Rwandan neo-traditional gacaca courts – community-level courts based on Rwandan traditional law – and Uganda’s mato oput – ceremony set up for reconciling former enemies – and other traditional cleansing ceremonies were preferred and called upon by the local populations vis-à-vis the International Criminal Court-led procedures (Nagy, 2008; Andrieu, 2010). Both cases eventually demonstrated how justice at the local level can be, in specific circumstances, much more effective and appropriate in order to pave the way for de facto reconciliation in conflict-ridden communities. Unfortunately, the conceptual underpinnings of the transitional justice discourse are still too reliant on global vs. local antagonistic perspectives. A glocal approach, instead, would be most appropriate in picking up what is useful from global liberal practices of justice, without dismissing the importance of allowing local communities to find their own way to deal with past sufferings (Robins, 2014; Schabas, 2005).

Liberalism

Robins (2014) draws a line between liberalism, globalisation, and transitional justice. ‘Liberal hegemony has permitted globalisation, not just of rights but also of neoliberal economics, and it is no coincidence that the goals of transitional justice align perfectly with the integration of transitional states into global markets’ (Robins, 2014, p.187). A globalised liberalism manifestly informs transitional justice. The relationship is clear: regardless of the realities transitional justice encounters, the traditional response is built on the imposition of a series of liberal normative goods ranging from the rule of law to human rights, from combating impunity to ultimate justice (Robins, 2014). Spence (2010) notices how the US’s response to 9/11 led the Bush administration to implement transitional theory and practice which ‘hijacked the tenets of liberalism, emphasising the universal appeal and relevance of democratic government and the free market for countries labouring under oppressive rule in the Third World in particular’ (Spence, 2010, p.4). However, unconditional appliance of the liberal paradigm to transitional justice is far from being unchallenged.

In theoretical terms, Kora Andrieu (2010) notes that the liberal character of transitional justice stems from its top-down approach to state-building which means that the primary focus of transitional justice is on high politics, namely building democratic institutions. Andrieu goes on to argue that looking at the deep politics of society, which is what the people mean to be legitimate in terms of governance, would be more effective in nurturing democracy in the state. Andrieu (2010) observes that liberal transitional justice is effectively committed to the building of democratic institutions – often unsuccessfully. According to Andrieu (2010), transitional justice’s primary objective should instead be about promoting a culture of democracy through a more spontaneous bottom-up approach. The global liberal paradigm that transitional justice brings about translates not only to an unbalanced focus on high-politics over civil society’s interests, but also in the excessive privileging of political rights over economic and cultural ones (Andrieu, 2010). Little attention is paid to the relationship between transitional justice and development because the actual model of liberal transition ‘focuses only on liberalising growth and marketisation without taking into account wider demands for social justice’ (Andrieu, 2010, p.544). This is also argued by Renaut (2005) who claims that transitional justice should be more detached from the liberal-legalist paradigm which favours political rights of freedom and liberty and which overlooks cultural, social and economic rights. A top-down state building approach to transitional justice and the fact that it glosses over social, cultural and economic rights in favour of political ones, ‘show the limits of the state-based, legalist and neoliberal approach to transitional justice’ (Andrieu, 2010, p.554). The following section will back up the arguments hitherto made by demonstrating how transitional justice unsuccessfully connects local needs and globalised politics when it is either too global or too local.

Transitional justice in operation: relevant case studies of local dynamics affecting and affected by global politics

Going beyond the traditional examples used by transitional justice academic enquiry, such as those of Rwanda and Uganda, the rest of the article focuses on two overlooked cases: Nigeria and East-Timor. The former shows how global liberal values can be manipulated by local extremists when the appliance of transitional justice highlights the hypocrisy of the liberal paradigm felt by the local population. The case of East-Timor illustrates how excessive reliance on local forms of justice – which are nevertheless instructed with liberal dictates in their quest for accountability – risks losing sight of transitional justice’s very objectives, that is, the fundamental pursuit of justice and the search for truth.

Transitional justice in Nigeria: when violence is conducted in the name of liberal principles

Growing violence in Nigeria is an issue that has recently received international attention due to the mass killings by the terrorist group Boko Haram in 2009 (The Guardian, 2009). Prior to this tragedy, Nigeria had been experiencing protracted violence as a means of enforcement of the Sharia law. Effectively, in the early 2000s, Nigeria transitioned to a civilian democratic government after the country’s military coup d’état in 1966. The democratisation process of Nigeria is still on-going and since its beginning in 1999, it has been characterised by violent conflicts ‘over the legal bounds of identity and citizenship, civility and criminality, with armed youths the new agents of policing’ (Casey, 2006, p. 119). Such violence, as Hinton argues, results from the ‘vernacularisation of liberal ideals associated with transitional justice in northern Nigeria’ (2010, p.12). The example of Nigeria and its transition from military to democratic rule is emblematic of a particular dynamic of interaction between globalised politics and local needs as mediated by transitional justice. In this specific case study, it is shown how local religious, social norms and beliefs can interact with liberalism, global justice and globalised practice in a way that the global is adapted by the local and made fit for it, whereas often the reverse occurs. Hinton synthetises this argument by affirming that Nigerian ‘youth, enmeshed in the intersection of liberal universalism […] and their on-the-ground observations of the world, actively construct their identity, moral and social status […] through a violence they assert as just’ (Hinton, 2010, p.13).

Beyond the transition process, what is relevant is the reaction of Muslim youths, particularly in Kano State, towards their forced induction to liberal universalism and the imposition of global ideas operated by Western European government personnel and the Nigerian leadership (Casey, 2006). The violent enforcement of Sharia law stems from the felt hypocrisy of Kano youths which resulted from the clash of espoused and imposed liberal ideals with the recollection of a hurtful colonial past and with the ‘mediated images of Abu Graib […] and the war in Iraq’ (Casey, 2006, p.120; Nye, 2008). Muslim Hausa are the majority of the population and their adoption of Sharia is claimed to be democratic on the grounds that, simply put, they are the largest ethnic group. They consider Sharia as a democratic alternative to the new allegedly-democratic government which they instead perceive as a “recolonisation” and the expression of the global war against Muslims combined together (Casey, 2006). The mechanism whereby the global is adapted by local actors and is made fit for their needs and social demands is clear in the Nigerian case. As argued by Casey (2006), the Muslim Hausa manipulated the language of human rights and what they see as the democratic principle of majority rules to give legitimacy and implement Sharia. The felt hypocrisy of espoused liberal universalism motivates Kano youth to use violence as a legitimate means of ensuring justice. The latter is ‘based on the idea of democratic majority Muslim Hausa rule’ and as Casey concludes is at ‘the cross roads of liberal universalism […] and religious orthodoxies where yan daba [Nigerian urban ward gang members] and Hisba [the enforcing wing of the Sharia Implementation Committee] enter the realms of blood sacrifice’ (Casey, 2006 p.133). In other words, this case study epitomises a core issue of transitional justice which is the friction/reaction between globalised politics and local needs; an ultimate tension of the global politics discourse between the supranational and national.

The peculiarity of this case however stands in an unusual process, whereby the local appropriates global discourses through transitional justice in such a manner that the manipulation of global liberal principles is used to empower local religious extremism. The balance of transitional justice between the local and global is in favour of the local in a very distorted way, which eventually results in regionally concentrated violence being conducted in the name of liberal universal principles.

Transitional justice in East-Timor: international justice cannot be a chimera

Protracted violence that occurred in East Timor from 1974 to 1999 was the direct consequence of Indonesian President Soeharto’ invasion and subsequent annexation of East Timor. When the country was freed from Indonesian chains in the late 1990s, the UN Transitional Administration in East Timor (UNTAET) set up the Special Panels of the Dili District Court to investigate the crimes committed during the Indonesian occupation. Through the case study of East-Timor, Elizabeth F. Drexler (2010) further supports the thesis that success for transitional justice does not stand either in the blind appliance of international legalist principles or overly-local forms of justice. It is rather in the concurrence of the two dimensions that transitional justice can effectively meet local needs while remaining in harmony with globalising politics. Drexler argues that an excessive localisation of accountability for the crimes committed during the conflict made it impossible to identify the very perpetrators of several human rights violations during the Indonesian occupation; violations which were in fact committed by international actors, of which many were indeed Indonesians but also included a significant number of Western countries who indirectly upheld the Indonesian military occupation, such as the US (Drexler, 2010; Nagy, 2008).

On the one hand, the case of East-Timor shows how the international legalist paradigm too often sees justice in terms of accountability rather than advancing the very objectives of transitional justice, that is, intergroup and national reconciliation (Drexler, 2010). However, if it is true that accountability and consequent prosecutions are somehow essential to move on after prolonged periods of human rights violations, it is also true that when the burden of justice is completely left into local hands in the hope that global legalist norms will be upheld, the consequences are unforeseeable. The hybrid courts set up for East-Timor proved to be ineffective in bringing justice. The UN, in fact, created a Special Panel for holding perpetrators accountable. However, its jurisdictional prerogatives were highly criticised for being too local in their reach. With very little cooperation from the Indonesian authorities, the East Timor Tribunal trials ended up leaving many Indonesian alleged perpetrators of human rights violations and other foreign actors almost unpunished (Drexler, 2010).

When affirming that transitional justice needs to take what is useful from the global liberal practice, one is referring to such tools as an international legal framework covering human rights violations with both de jure and de facto jurisdiction and enforcement power. In the case of East-Timor that would have been crucial to address ‘the international components of injustice and their implications in the conditions of possibility for specific acts of violence’ (Drexler, 2010, p.51). International tribunals charged with the upholding of the international legal framework for human rights violations would certainly help bringing powerful non-Timorese actors to justice (Drexler, 2010). East-Timor demonstrates that there are instances where the international legalist paradigm can fail, such as in the unconditional demand for accountability rather the reconciliation. Nonetheless, it also shows that the global liberal practice has much to offer in the pursuit of justice and truth. For example, the absence of an international tribunal prosecuting human rights violators translated into the impossibility of bringing foreign actors involved in the violence before a court.

Both case studies lead to the conclusion that the appliance of transitional justice needs to be balanced between global and local dimensions and that the liberal practice is not a one-size-fits-all solution. In Nigeria, the hypocrisy of espoused liberalism led to violence. In East-Timor, the almost absence of international legal practice left non-Timorese human rights violators unpunished. As these cases show, even if in quite diverse circumstances, transitional justice is not currently effective in connecting globalised politics and local needs.

Transitional justice at crossroads

The analysis in this article sheds light on how the process of globalisation – entailing what is defined as a global human rights regime – together with ‘liberal democratic politics and neoliberal economics’ (Robins, 2015, p.190), does affect the role of transitional justice in mediating globalised politics and local needs. In light of that, this article argues that if transitional justice is to be effective in the connection between globalised politics and local needs, it will have to take from the ‘global liberal practice what is useful’ (Robins, 2015, p.190) whilst always supporting locally-contextualised communities to find their own way to come to terms with a tormented past (Robins, 2015). In short, transitional justice needs to be more glocal in its approach. To be sure, whether transitional justice’s revised approach will bear fruit is not certain but it is quite clear that, at least for the time being, transitional justice is unable to bridge the gap between globalised politics and local needs. Transitional justice now faces a choice between persisting in trying to instill liberal practices with little success, or attempting to glocally collide ‘strategies, institutions and norms of a global practice with everyday lives of local actors impacted by violations’ (Robins, 2015, p.188).

Bibliography

Andrieu, K. 2010. Civilizing Peacebuilding: Transitional Justice, Civil Society and the Liberal Paradigm. Security Dialogue, 41(5), pp.537-558.

Apland, K. 2012). The Power and Politics of Transitional Justice. [Online] available from: http://justiceinconflict.org/2012/01/16/the-power-and-politics-of-transitional-justice/ [accessed: 1th March 2015].

Arbour, L. 2006. “Economic and Social Justice for Societies in Transition”, Second Annual Transitional Justice Lecture hosted by the Center for Human Rights and Global Justice at New York University School of Law and by the International Center for Transitional Justice, 25 October, New York University School of Law; available at http://www.chrgj.org/docs/Arbour\_25\_October\_2006\\.pdf (accessed 13 July 2010) in Andrieu, Civilising Peacebuilding: Transitional Justice, Civil Society and the Liberal Paradigm, Security Dialogue 2010, p. 554.

Arriaza, L. and Roht-Arriaza, N. (2008). “Social Reconstruction as a Local Process”. International Journal of Transitional Justice, 2(2), pp.152-172.

Casey, C. 2006. Remembering Genocide: Hypocrisy and the Violence of Local/Global Justice in Northern Nigeria’, in Hinton eds. Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence. New Brunswick, N.J.: Rutgers University Press.

Drexler, E.F., The failure of International Justice in East Timor and Indonesia, in Hinton eds . (2010). Transitional justice : global mechanisms and local realities after genocide and mass violence. New Brunswick, N.J.: Rutgers University Press.

Hinton, A. 2010. Transitional justice : Global Mechanisms and Local Realities after Genocide and Mass Violence. New Brunswick, N.J.: Rutgers University Press.

Huntington, S. 1991. “Democracy’s Third Wave”. Journal of Democracy, 2(2), pp.12-34.

Huntington, S. 1991. The third wave. Norman: University of Oklahoma Press.

Kersten, M., 2012. The Power and Politics of Transitional Justice. [online] Justice in Conflict. Available at: http://justiceinconflict.org/2012/01/16/the-power-and-politics-of-transitional-justice/ [Accessed 3 March. 2015].

Minow, M. 1998. Between Vengeance and Forgiveness. Boston: Beacon Press.
Nagy, R. 2008. “Transitional Justice as Global Project: critical reflections”. Third World Quarterly, 29(2), pp.275-289.

Nye, J.N. 1990. “Soft Power”. Foreign Policy, No. 80, Twentieth Anniversary, pp. 153-171.

Nye, J.N. 2008. “Public Diplomacy and Soft Power”. The Annals of the American Academy, 616, pp. 94-109.

Renaut, A. 2005. Egalité et Discrimination [Equality and Discrimination]. Paris: Seuil. Sarkin, Jeremy, 1996.

Robertson, R. 1994. “Globalisation or Glocalisation?” Journal of International Communication, 1(1), pp.33-52.

Robins, S. 2015. “Mapping a Future for Transitional Justice by Learning from Its Past”. International Journal of Transitional Justice, 9(1), pp.181-190.

Roht-Arriaza, N. and Mariezcurrena, J. (2006). Transitional Justice in the Twenty-first Century. Cambridge, UK: Cambridge University Press.

Schabas, W. 2005. ‘Genocide Trials and the Gacaca Courts’, Journal of International Criminal Justice 3(4): 879–895.

Spence, J.E. 2010. ‘Realism and Idealism in South Africa’s Foreign Policy’, in Welsh D. & Spence J.E, (ed), Ending Apartheid. London: Pearson.

Stiglitz, J. 2002. Globalisation and its Discontents. New York: W. W. Norton.

Teitel, R. 2001. Transitional Justice. New York: Oxford University Press.

Teitel, R. 2002. Transitional Justice in a New Era. Fordham International Law Journal, 26(4), pp. 893-906.

Teitel, R. 2014. Globalising Transitional Justice. University Press Scholarship Online, Oxford Scholarship Online.

The Guardian, 2009. Nigeria accused of ignoring Sect warnings before Wave of Killings. [online] Retrievable at: http://www.theguardian.com/world/2009/aug/02/nigeria-boko-haram-islamist-sect [Accessed 1 March 2015].

UN. 2004. United Nations and the Rule of Law. [online] Available at: http://www.un.org/en/ruleoflaw/index.shtml [Accessed 1 March 2015].

20 Years Later: The Role and Value of Traditional Justice Mechanisms for the International Criminal Court and for the Future of Transitional Justice

By Dr. Ingrid Roestenburg-Morgan

Dr. Ingrid Roestenburg Morgan is a Senior Research Fellow with the Institute for Justice and Reconciliation.

What is Justice? This is a question that I would like to open up for thought in this special edition of the R2P Student Journal that addresses the topic of traditional justice, mainly in light of the transformative context of transitional justice but equally as important in light of the 20th anniversary of the International Criminal Court’s Rome Statute, both of which have dealt with the concept of justice in varying ways. The International Criminal Court (ICC), for instance, determines that justice means “the ending and preventing of impunity of serious crimes” through prosecution (Article 4, Rome Statute, 1998). This is in line with the Preamble of the Rome Statute and in line with article 53 of the Rome Statute (OTP Policy Paper, 2007, pp. 8-9). In other words, the ICC makes it clear that justice should not be relegated to moral or practical disagreements of the term, but rather to the law which is the Rome Statute. Transitional justice proponents on the other hand see justice as “the full set of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale abuse in order to secure justice, achieve accountability and achieve reconciliation” (Annan, 2004, p. 4). In other words, transitional justice proponents rely on both judicial and non-judicial processes to successfully realise justice needs for post-conflict societies and their citizens (Villaba, 2011).

These differing views on justice effectively open the meaning of the term to scrutiny and debate. From current postmodern viewpoints many theories substantiate these variations and often hold that the concept of justice is open to some degree of personal interpretation (Young, 1997). Justice is thus open to change, critique and the diverse accommodation of social forms, meaning that the term cannot mean the same thing to different people, races, cultures, groups or societies (Young, 1997). For instance, justice could mean something very different to a person who has faced an ordinary crime in a context of normality, in comparison to a person who has faced massive and atrocious crimes in exceptional contexts of transition (Uprimny and Saffon, 2006). Justice also holds differing and varied connotations for societies on the brink of transition in comparison to societies which have remained in peace for years or decades (Mbeki and Mamdani, 2014).

Currently however, it is generally understood that the term justice represents morality, ethics, rationality, law, religion, equity and fairness, and that the two most important variations or discourses that pervade contemporary criminal justice processes are the retributive and restorative justice models (Rawls, 1981). The right to justice, as we currently understand it, basically means that individuals must have the ability to have effective access to justice, which forms a fundamental part of the rule of law (American Bar Association, 2018). Where access to justice is not readily available, victims in particular are at a disadvantage, because they cannot exercise their rights nor challenge any type of discrimination effectively enough (American Bar Association, 2018).

Currently, there is a presumption that justice can be best secured primarily through a retributive system advocating for prosecution and punishment (Moscati, 2015, p. 9). However, considering the complexity of post-conflict societies, where often the role of victim and perpetrator are switched during conflict and where roles have become blurred during ongoing hostilities, ensuring adequate access to justice for both victim and perpetrator is no easy task, and a purely prosecutorial or retributive approach to justice may not in each and every instance be suitable (Morgan, forthcoming, p. 141). This would be the case especially if prosecutions threaten to undermine or destabilise a country or if they threaten to marginalise or disempower the main stakeholders in the justice process, such as victims (Morgan, p. 141). As a result, more holistic approaches to justice have been advocated for, where in some instances both retributive and restorative elements of justice feature (Villaba, 2011). The interaction and interdependence of both theories of justice has accordingly paved the way towards the discipline of transitional justice as we know it today where, because they face complex internal disputes, states are burdened with the responsibility of moving their societies from chaos to stability. As a result, states are expected to find the right reconstructive measures to secure peace, reconciliation and justice for successful transition to take place (Morgan, p. 141).

In the context of Africa, transitional justice has essentially found its roots in the use of traditional justice. Since the 1990s there have been a plethora of judicial and non-judicial mechanisms employed by African states, which very often featured restorative tenets of justice such as forgiveness, friendship and compassion between victim and perpetrator, thus mimicking transitional justice as we know it today (International Peace Institute, 2013, p. 27). These justice mechanisms have been referred to by a variety of names including traditional justice mechanisms, alternative justice mechanisms and local justice mechanisms. The goal of traditional justice mechanisms as understood from an African perspective must be seen to secure reconciliation and national unity by drawing on cultural or religious linkages (Morgan, p. 141). Examples of the latter mechanisms include several truth commissions that have been employed in various African countries such as in Uganda, Zimbabwe, Nigeria, Ghana Sierra Leone and South Africa over the years. Other examples include Gacaca courts in Rwanda, Magamba spirits in Mozambique, Mato oput in Northern Uganda, Kpaa in Sierra Leone and Bashingantahe in Burundi (Huyse, 2008).

The purpose of using such mechanisms has essentially been to address large-scale justice needs, keep the cost-effectiveness of the justice system in check, and most importantly ensure that political reconciliation is achieved as a final goal (Huyse, 2008). But these objectives alone do not necessarily suggest that traditional justice mechanisms provide an adequate measure of justice to victims and survivors of mass atrocities undergoing transition, especially when the context of violence far exceeds crimes that would ordinarily occur on a regular basis (Morgan, p. 141).

Proponents of traditional justice mechanisms nonetheless have stressed the inclusiveness of such systems, which incorporates both victims and perpetrators within the justice process so that these main stakeholders can meaningfully engage and further empower survivors of mass violence. This in turn is beneficial in that it enhances the legitimacy of the justice system in place (Morgan, p. 141). Many of these mechanisms have also been praised for their participatory nature, their flexibility to include both restorative and retributive strands of justice, their high level of truth telling, their ability to secure ‘negotiated settlements’ essential for maintaining peace, the practical implementation of the judgments handed down, and also the very important space that rituals create for discussion on accountability, guilt and restoration (Villa-Vicencio, 2002).

However, based on my recent research into the role and value of such systems it has become clear that these justice mechanisms may function more effectively if they contain elements of both restorative and retributive strands of justice rather than only restorative elements alone (Morgan, p. 141). My findings reveal that purely restorative models of justice will not be able to meet victims and survivors’ justice needs in contexts of mass violence simply because perpetrators wield a diminished sense of personal, moral and legal responsibility characterised by the type of crimes they have committed, where in comparison to ordinary crime, the scale, nature, gravity, and the manner in which the crime has been committed is exceptional (Morgan, p. 141). Furthermore, not all victims find themselves in a position to pardon or forgive their offender, a requirement that is often implicit in a restorative system of justice that functions without any retributive strands (Morgan, p. 141). Additionally, states have a further obligation under international law to prosecute perpetrators of mass atrocities in order to prevent similar crimes from occurring on their territories in the future. In this way, they cannot violate their legal and human rights obligations and thus prosecution is difficult to forego in light of these international obligations (Orentlicher, 1991).

Thus, in order for traditional justice mechanisms to be of value within the transitional justice landscape they would need to undergo “revision” with some form of prosecutorial option at hand to meet the tensions between tradition and modernity. Indeed, complications arise when these justice mechanisms become subject to scrutiny at the international level when for instance they are accompanied with blanket amnesties for perpetrators or when they cannot supposedly meet due process standards of the law (Morgan, p. 141).[2]

At the level of the ICC, this would further suggest that states who proffer the use of traditional justice mechanisms in a challenge of admissibility would need to overcome certain limitations; namely that the justice system in question must meet the requirement of genuineness as elaborated under the ICC’s principle of complementarity as per article 17 of the Rome Statute, and that furthermore such a mechanism should ensure a level of due process of the law (Morgan, p. 141). In terms of the genuineness requirement, this would mean that a mechanism set up hastily and entirely for political reasons without a genuine bona fide intention on the part of the state in question will not qualify. So, for instance, a mechanism set up to shield an accused under the guise of justice to ensure political reconciliation will not qualify under ICC standards if the intention of the state in question to set up such a justice system is only for political purposes and/or to shield the perpetrator from justice and/or to fail to secure justice as an end goal (Morgan, p. 141).

In terms of due process standards, many scholars have been concerned with whether such mechanisms actually need to guarantee a defendant international due process standards. According to my findings, nothing under article 17 requires a state to guarantee international due process of the law, especially because most states parties in a challenge of admissibility would not in reality be able to satisfy such standards. In fact, a proper interpretation of article 17 renders that most states should have a minimum guarantee of due process in place at the national level, which should be afforded to a defendant in order to qualify such a mechanism at the level of the ICC (Morgan, p. 141). Thus, in this regard, the ICC may offer some measure of leeway. Essentially, the quality of justice will be assessed by the ICC as a whole, considering the broader political implications that these justice systems hold individually for victims and survivors and separately for the country on the whole (Morgan, p. 141).

So, in closing, the benefit of traditional justice for transitional contexts may be meaningful if such mechanisms can address both societal reconciliation, which is arguably one component for justice for survivors, and then individually target the justice needs of survivors, contingent of course upon a prosecutorial option being included within the framework of such a mechanism (Morgan, p. 141). When both these tiers of justice can be adequately satisfied then such a justice mechanism may be considered valuable by the ICC. Equally of importance will be the value of these mechanisms to victims and survivors of mass violence, and thus to transitional justice on the whole (Morgan, p. 141). In other words, the use of traditional justice mechanisms in light of the aforementioned assessments should not necessarily be dismissed prematurely based on their often romanticised cultural and religious linkages, but rather they should be thoroughly assessed on their merits and ability to genuinely support both societal reconciliation and individual justice needs, thereby qualifying a deeper definition of justice that post-conflict societies must ensure in general.

[2] Due process includes amongst others the right to counsel, the presumption of innocence, independence and impartiality of judges, right to an adequate defence, the right to testify in one’s defence, the right against self-incrimination, the right to be present at one’s trial, the right not be arbitrarily detained and protection from double jeopardy.

Bibliography

American Bar Association, Human Rights and Access to Justice. (Online). (Accessed: 28 May 2018). Available from: https://www.americanbar.org/advocacy/rule_of_law/what-we-do/human-rights-access-to-justice.html

Annan, K. 2004. The Rule of Law in Conflict and Post-Conflict Societies, New York, United Nations.

Article 4 of the Preamble of the Rome Statute of the International Criminal Court.

Article 53 of the RS and Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the Prosecutor. September 2007.

Huyse, L. February 2008. Traditional Justice and Reconciliation after Violent Conflict: Learning from Experiences, Institute of Democracy and Electoral Assistance (IDEA).

Mbeki, T, and Mamdani, M. February 5th 2014. Courts Can’t End Civil Wars, The New York Times, Op-Ed.

Morgan, I. Forthcoming. The Road to Reconciliation? Optimizing the Legitimacy and Efficacy of the ICC Within the African Union and Africa.

Moscati, M. May 2015. The Role of Transitional Justice and Access to Justice in Conflict Resolution and Democratic Advancement, Democratic Progress Institute.

Orentlicher, D. 1981. Settling Accounts: The Duty to Prosecute Human Rights.

Rawls J, A Theory of Justice, Howard Press, Cambridge.

Report of the AU Panel of the Wise, Peace, Justice and Reconciliation in Africa. February 2013. Opportunities and Challenges in the Fight Against Impunity, International Peace Institute.

Uprimny, R, and Saffon, M. 2006. Transitional Justice, Restorative Justice and Reconciliation: Some Insights on the Colombian Case, Coming to Terms with Reconciliation, Working Paper, National University of Colombia.

Villaba, CS. 2011. Transitional Justice: Key Concepts, Processes and Challenges, Briefing Paper, Institute for Democracy and Conflict Resolution, University of Essex, Knowledge Gateway.

Villa-Vicencio, C. 2002. Walk with Us and Listen: Political Reconciliation in Africa, Georgetown University Press.

Violations of a Prior Regime. June 1991., The Yale Law Journal, Vol.100, No. 8, Symposium International Law, pp. 2537-2615.

Young, T.R.A. June 1997. A Constitutive Theory of Justice, Architecture and Content, Red Feather Institute.

Cuddled, Loved and Mutilated: Transitional Justice as Transitional Object

By Dr Lars Waldorf

Lars Waldorf is a Reader at Dundee Law School.

“The object is affectionately cuddled as well as excitedly loved and mutilated.”
– D.W. Winnicott (1953, p. 90)

I was once at a “transitional justice” workshop where a scholar took credit for coining the term.  The rest of us were happy to let someone else own the conceptual confusion it had caused. That me-not-me moment generated a transitional space in which we debated the meaning of transitional justice: Is it (special) justice for transition or (normal) justice during transition or justice in transition (see Bell 2016)? In the intervening years, transitional justice has been both elusive and illusive.

* * * 

I was supposed to be writing this Introduction but kept finding excuses to put it off. I had re-read Christine Bell’s “The Fabric of Transitional Justice” (2016) and didn’t think it had left me anything new to say. So instead of typing, I was listening to Laurie Anderson’s “O Superman” (1982).

‘Cause when love is gone, there’s always justice.
And when justice is gone, there’s always force.
And when force is gone, there’s always Mom.

The song shifts registers from love (“O Mom and Dad”) to justice (“O Judge”) to force (“O Superman”) to punch-line (“Hi Mom!”). As the stanza above makes clear, justice is inherently transitional and relational – suspended between force and love, rupture and suture, absence and omnipresence, Superman and Mom. That got me thinking that perhaps transitional justice is a transitional object for an anxious age of disenchantment.

* * * 

I am well acquainted with transitional objects. My Mom gave me a teddy bear when I graduated from law school. The British psychotherapist D.W. Winnicott explained the phenomenon in his classic essay “Transitional Objects and Transitional Phenomena”:

It is not the object, of course, that is transitional. The object represents the infant’s transition from a state of being merged with the mother to a state of being in relation to the mother as something outside and separate. (1953, p. 90)

The transitional object is “the original not-me possession” (p. 90) that enables an infant to navigate from inner world to external reality and from narcissism to inter-personal relations. Importantly, it also “gives room for the process of becoming able to accept difference and similarity” (p. 91).

That last line (and many eminently quotable others) explains Winnicott’s appeal to some contemporary liberal theorists. For example, Martha Nussbaum (2012) sees affinities between Winnicott’s “facilitating environment” and her own capabilities approach in developing “an enriched conception of the meaning of liberal ‘individualism’: not selfishness, but the ability to grow and to express oneself; not solitary self-sufficiency, but ‘subtle interplay’; not the transcendence of human passions, but the secure ‘holding’ of human need and imperfection.”

Another example comes from Bonnie Honig (2013), who applies Winnicott to “the politics of public things”:

In object relations theory, certain kinds of objects and certain kinds of orientations to them and certain kinds of contexts in which to relate to them, all serve as epistemological props to enable people to transition from continuity to contiguity, from self to neighbor, from solipsism to knowledge. (p. 71)

She then asks, “Might there also be, analogously, some objects, relations, and contexts that serve as episte-political props to enable democratic citizens to make analogous political (and not just psychic) transitions?” (p. 71

* * * 

Given Honig’s query, it is surprising how few scholars have made the connection between transitional justice and transitional objects. I found just three. The psychoanalyst Gillian Stryker speaks about the victims’ narratives from South Africa’s Truth and Reconciliation Commission in terms of transitional objects:

Thus, this particular narrative by the act of being articulated comes to belong both to inner and outer reality in a different way than before, although it retains its intensity of experiencing, an intensity which is characteristic of transitional phenomena. In its being placed outside of the self in this context, given the profundity of its effect on the other it also may become a transitional object for the other, the audience. The stories of the victims, which form part of South Africa’s history, belong in some crucial way both to the self and to the other for all South African citizens. These stories are indeed in the realm of me-not-me objects, and their role is to help us integrate reality. (Stryker, 1999, p. 263)

Similarly, Brandon Hamber, the South African psychologist turned transitional justice scholar-practitioner, likens symbolic reparations to a transitional object: both “need to exist in both the internal and the external world for the survivor, and they must have something sacred or even magical about them to have an internal (individual) and social (collective) meaning simultaneously” (2009, p. 111).

Kirsten Campbell sees how transitional justice discourse talks about legal archives (and the legal memories contained therein) as if they are transitional objects:

By creating new relationships between self and others, the object can reorient memory to a peaceful future. Legal memories thereby appear to connect individual and collective worlds, and support the transition from war to peace. (2012, p. 10

But she challenges this transitional justice perspective, arguing that the legal memories in the archives of the International Criminal Tribunal for Former Yugoslavia are traumatic rather than transitional objects – and so cannot create newly peaceful relations (p. 14).

* * * 

Transitional justice resembles a transitional object:

  1. It is also a security blanket, providing a creative “defence against anxiety” (Winnicott, 1953, p. 90). As Manderson (2015) notes, “The security blanket offers the child the talisman of an authority figure, allowing him or her to adapt to their absence, a new context, or even a new regime.”
  2. It is also reliably imperfect and so too needs only “a good enough ‘mother’” (Winnicott, 1953, p. 93). Winnicott writes that “the object that behaves perfectly becomes no better than an hallucination” (p. 93).
  3. It also teaches a liberal toleration – not only of difference and imperfection, but also, in Winnicott’s winning phrase, “the results of frustration” (p. 93).

* * * 

Transitional justice has also undergone its own transition. Geographically, it has spread North to South, South to South, and South to North. Temporally, it has shifted from past imperfect to past historic, present continuous, and future perfect. Structurally, it has buttressed democratic transitions then conflict transitions and then non-transitions, stalled transitions, and post-transitions. These geographic, temporal, and structural transitions have prompted further “results of frustration,” which have led, not to toleration, but to calls to replace it with new objects.

Indeed, transitional justice may be on its way out. As a term, transitional justice is falling into disfavor, though not yet disuse. The UN created a Special Rapporteur on the Promotion of Truth, Justice, Reparations and Guarantees of Non-Recurrence rather than one for transitional justice. As a concept, transitional justice is being traded in. Bell (2016, p. 19) proposes “reliev[ing] transitional justice of its normative ‘justice’ burden” by relabeling it ‘contending with the past.’ By contrast, two new books propose replacing transitional justice with something much more normatively ambitious: transformative justice (Evans, 2019; Gready and Robins, 2019). Occupying a middle ground of sorts, several scholar-practitioners argue for focusing on guarantees of non-recurrence (Mayer-Rieckh, 2017; Roht-Arriaza, 2016; Sandoval, 2017). As a norm, transitional justice – rather like Responsibility to Protect – seems to be experiencing increased contestation, if not outright degeneration. That is most apparent in the increased hostility towards the International Criminal Court from African state-parties and renewed hostility from the US. As a practice, transitional justice has a weak track record in demonstrating impact and value-for-money, which makes for a harder sell to donors.

Like any transitional object, transitional justice “becomes not so much forgotten as relegated to limbo” (Winnicott, 1953, p. 90). As Winnicott explains, the object

loses meaning, and this is because the transitional phenomena have become diffused, have become spread out over the whole intermediate territory between ‘inner psychic reality’ and ‘the external world as perceived by two persons in common,’, that is to say, over the whole cultural field. (p. 90)

Maybe that explains why I’m now working on dance in post-war Sri Lanka.

Bibliography

Anderson, L. 1982. “O Superman” from the album Big Science. Warner Bros.

Bell, C. 2016. ‘The Fabric of Transitional Justice: Binding Local and Global Political Settlements’. University of Edinburgh School of Law, Research Paper Series No. 2016/22.

Campbell, K. 2012. ‘The Laws of Memory: The ICTY, the Archive, and Transitional Justice’. Social & Legal Studies. pp. 1–23.

Evans, M., ed. 2019. Transitional and Transformative Justice: Critical and International Perspectives. Abingdon: Routledge.

Gready, P. and Robins, S., eds. 2019. From Transitional to Transformative Justice. Cambridge: Cambridge University Press.

Hamber, B. 2009. Transforming Societies after Political Violence: Truth, Reconciliation, and Mental Health. Berlin: Springer.

Honig, B. 2013. ‘The Politics of Public Things: Neoliberalism and the Routine of Privatization’. No Foundations: An Interdisciplinary Journal of Law and Justice. 10, pp. 59-76.

Manderson, D. 2015. ‘The Metastases of Myth: Legal Objects as Transitional Phenomena’. Law & Critique. 26(3), pp. 207-223.

Mayer-Rieckh, A. 2017. ‘Guarantees of Non-Recurrence: An Approximation’. Human Rights Quarterly. 39(2), pp. 416-448.

Nussbaum, M. 2012. Philosophical Interventions: Reviews 1986 – 2011. Oxford: Oxford University Press.

Roht-Arriaza, N. 2016. ‘Measures of Non-Repetition in Transitional Justice: The Missing Link?’ UC Hastings Research Paper No. 171. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2746055

Sandoval, C. 2017. ‘Reflections on the Transformative Potential of Transitional Justice and the Nature of Social Change in Times of Transition’. In Duthie, R. and Seils, P., eds. Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies. New York: International Center for Transitional Justice.

Van Zyl, S. 1999. Interview [with Gillian Stryker]. Psychoanalytic Dialogues, 9(2), pp. 249-274.

Winnicott, D.W. 1953. ‘Transitional Objects and Transitional Phenomena’. International Journal of Psycho-Analysis. 34, pp. 89-97.