Transitional Justice as Structural Justice

Chapter 5
Transitional Justice as Structural Justice

Krista K. Thomason

Philosophical scholarship on transitional justice has largely focused on adjudicating between retributive or restorative justice in post-conflict societies (Mani 2002: 5–6; Arbour 2007: 5–6; Nagy 2008: 276–8). The primary question is usually as follows: do we properly achieve justice by arresting and prosecuting the perpetrators of genocide and mass atrocity, or do we properly achieve justice by reconciliation between victims and perpetrators in favor of establishing peace? The debate over retributive and restorative justice has been the focus of recent criticism. Some scholars have begun to urge theorists of transitional justice to take into account the economic, cultural, and social realities of post-conflict nations (Arbour 2007; Nagy 2008; Dicklitch and Malik 2010; Millar 2011). This objection raises an important question for scholarship on transitional justice: exactly how do we take into account the particularities of post-conflict nations while still exploring transitional justice at the level of theory? In what follows, I propose an answer to this question. Using Young’s concept of structural injustice, I construct a theoretical framework of transitional justice as what I call structural justice (Young 2011). Transitional justice as structural justice focuses primarily on the political, social, and economic institutions that give rise to violence. It aims to (a) revise or abolish the original institutions that contributed to the violence and (b) implement new institutions that prevent economic, social, or political disenfranchisement. I argue that structural justice is a theoretical framework of transitional justice that can accommodate economic and social issues of particular post-conflict nations.

The Importance of Theories of Transitional Justice

Literature in transitional justice spans both theoretical and empirical realms. A great deal of work has been done on the empirical issues of transitional justice by anthropologists, sociologists, historians, and journalists (Crocker 1999: 45–6). Political theory, legal theory, and philosophy have contributed to the theoretical side. One might wonder, however, why transitional justice needs much theorizing. Each transitional society is different and as such one could argue that the empirical study of particular nations is much more crucial to the process of transition than abstract theory. Even among theorists, there seems to be little consensus about the components of any particular theory of transitional justice and where consensus exists, it is thin (de Greiff 2012: 32). If theories of transitional justice are disparate, it is unclear how work in the theoretical realm aids in actual processes of transitional justice. One might reasonably wonder if there is anything to be gained from such theorizing.

Philosophers who work in transitional justice have responded to challenges like these in several ways. First, as de Greiff argues, theory can help guide action. It can help us to “understand what we are committing ourselves to” (de Greiff 2012: 33). If, for instance, one thinks that the primary aim of transitional justice is to achieve lasting peace, then theorizing can clarify just what lasting peace is and how it is achieved. Additionally, theorizing helps to provide societies with a broader perspective on the transitional process. Theorizing about transitional justice apart from any particular cases of it can draw attention to common problems. Paying too strict attention to the particularities of individual cases of transitional justice is likely to miss deeper issues. Transitional justice that focuses too closely on the immediate situation is likely to be “ad hoc, ineffective, inconsistent, and unstable” (Crocker 1999: 63). Finally, theories of transitional justice deal explicitly with the normative aims of transitional justice (de Greiff 2012; Crocker 1999). While empirical study focuses on the details of what has happened or is happening in transitional societies, theory investigates what ought to have happened or what ought to happen in the future. Explicit attention to the normative aspect of transitional justice is one of the primary purposes of theory. Articulating what transitional justice ought to be or ought to achieve is an indispensable guide to transitional policies, laws, and procedures (de Greiff 2012: 33).

A Challenge for Theories of Transitional Justice

Despite the importance of transitional justice theory, it faces a substantive challenge. More recently, scholarship in transitional justice raises the worry that too often Western conceptions of justice dominate the process of post-conflict reconciliation (Mani 2002; Arbour 2007; Nagy 2008; Corntassel and Holder 2008; Dicklitch and Malik 2010; Millar 2011). This concern arises both at the level of practice and at the level of theory. With regard to practice, tribunals and truth commissions are often organized and funded by international institutions and Western nations (Nagy 2008: 278; Dicklitch and Malik 2010: 520–21; Hoogenboom and Vieille 2010: 189–90). Thus the paradigm for transitional justice tends to resemble a Western legalistic model. Even though truth commissions are thought to be more conducive to reconciliation than tribunals, they still share many of the same legalistic elements: witness testimony, gathering evidence, and cross-examination by members of the truth commission (Nagy 2008: 278–9). The parties involved in implementing transitional justice believe that reconciliation ought to reflect the values, beliefs, and commitments particular to the nation in transition. Desmond Tutu argues, for example, that the Truth and Reconciliation Commission of South Africa was rooted in the African concept of Ubuntu, which captured the commitments and attitudes of South Africa better than a tribunal (Tutu 1999: 31).

Those who raise the worry about Western influence suggest that it is important that transitional justice incorporate and address the particular concerns of the members of the transitional society because they should experience the process as just. Millar points out, for instance, that local people in Makeni expected that the transitional justice process in Sierra Leone would help amputees with access to health care, but it did not (Millar 2010: 525). As such, they perceive the TRC as failing to provide justice because victims of the war are unable to meet their basic needs. If the members of a transitional society do not experience truth commissions or tribunals as accomplishing justice, transitional justice is ultimately “alien and distant to those who actually have to live together after atrocity” (Nagy 2008: 275). This raises two serious worries. First, if transitional justice is experienced as alien, the peace supposedly brokered by truth commissions and tribunals may not be sustainable. The local people may not feel any ownership or connection to the peace and thus be unmotivated to maintain it. Second, the failures of the truth commissions and tribunals may be harming the societies they are supposed to help. The victims of the conflict might feel wronged by the perpetrators of violence and then feel wronged a second time when their concerns are ignored by the truth commissions and tribunals. This second worry is often compounded by the political involvement that Western nations may have had in the original conflict. The fact that the UN, for instance, gave a seat in the General Assembly to the “Coalition Government of Democratic Kampuchea,” which gave international recognition to the rule of the Khmer Rouge, gives the people of Cambodia little faith in the good intentions of the UN-backed tribunal (Dicklitch and Malik 2010: 518). To address these worries, scholars urge that special attention be paid to the particular features of each transitional society in the implementation of transitional justice.

The problem of a dominant paradigm arises at the level of scholarship as well. Millar notes that most scholarship on transitional justice is written by Western scholars, and scholars question whether the absence of non-Western voices shapes the debate:

Because the currently dominant paradigms of transitional justice place the emphasis on either individuated retribution (in the form of criminal tribunals) or collective truth telling (in the form of Truth Commissions), and the application of transitional justice is dominated by Western and relatively privileged intellectuals, these more basic needs for economic and social justice are commonly overlooked or disparaged in the ongoing discourse. (Millar 2011: 531)

A large portion of the literature on transitional justice focuses on the debate between types of justice, mainly retribution and reconciliation (Little 1999: 66–7; Dicklitch and Malik 2010: 518). This debate resembles the more classical debates in political philosophy about justifications of punishment (Arbour 2007: 4–6; Nagy 2003: 278–9). As such, there is a tendency to fit the problems of transitional justice into an existing model that is based on issues in the Western legal tradition. Scholars suggest that in spite of its growth over the last two decade, the literature on transitional justice has been myopically concentrated on a small handful of theoretical issues that largely ignore problems facing particular transitioning societies.

Theorists might reasonably respond that many of the current theories of transitional justice can be amended to include some of the issues that critics raise. Current work in transitional justice has begun to include issues like fair distribution of goods (de Greiff 2012; Fuller 2012), gender-based violence (Oosterveld 2009; Buckley-Zistel and Stanley 2012), and reparations or memorialization (Walker 2010; Blustein 2012) as essential components to transition. Although widening the scope of transitional justice to include things like economic concerns and gender-based violence is surely a step forward, merely casting a wider net does not solve a deeper theoretical tension uncovered by the challenge above. Retributive and restorative models have in common a narrow focus on the particular violent event or particular violent regime: retributive justice claims such events must be punished and restorative justice claims that the society must heal from these events. In both cases, transitional justice is that which “bridges a violent or repressive past and a peaceful, democratic future” (Nagy 2008: 289). Even if we think of transitional justice as including more, it is still conceived as that which mends a rift or heals a wound. Including memorialization or reparations as essential to transition merely reinforces the paradigm of transitional justice as a response to massive violence or some particular regime. But thinking in this way ultimately undermines the project of trying to accommodate the specifics of post-conflict societies.

The particular conflicts that are a focus of trials and truth commissions are often closely tied to a longer history of conflict in the society. But the violence and conflicts are seen as deviations from the norm: they are “dark times” in an otherwise peaceful nation. This conception does not allow for the examination of previous policies and historical legacies that may have led to or fueled the violence. The challenge from scholars like Nagy, Millar, and Arbour precisely is to argue that scholarship in transitional justice ought not to see a genocide, mass atrocity, or violent regime as a deviation from a society’s otherwise peaceful and unproblematic history. There were many incidents of violence during South African apartheid committed by both the police force and the resistance movements, but apartheid itself was the result of several laws and policies. Apartheid was implemented over several years, which means that its policies were at some point the norm and not the deviation. Additionally, the 1994 violence of the Rwandan genocide was extreme and immediate, but given the long-standing historical tensions between the Hutus and the Tutsis as well as the rampant and well-known violence of Dutch colonial rule, it is not as though the genocide was an ex nihilo disruption in an otherwise harmonious state of affairs (Hochschild 1999; Mamdani 2001). Similarly, the violence against the Maya in Guatemala is part of a long history of tensions between the Maya and Ladino people over the economic future and national identity of Guatemala (Handy 2003). Even though the massacre in Panzos was appalling, it was “not surprising” given the reinvigorated guerilla movements in the 1960s (Handy 2003: 285–6). The point here is not to downplay the outbreaks of violence or mass atrocity in these cases, but rather to show that—horrifying though they are—seeing them as deviations from the norm misses the extent to which background conditions of the societies in which they take place contributed to them. The scholars who challenge the legalistic model of transitional justice are suggesting that sustainable peace and reconciliation are only possible if these background conditions are addressed in the process of transition.