Decolonizing Transitional Justice: Soft, Radical or Beyond Reform

Practices of knowing and being are not isolable; they are mutually implicated. We don’t obtain knowledge by standing outside the world; we know because we are part of the world. We are part of the world in its differential becoming. The separation of epistemology from ontology is a reverberation of a metaphysics that assumes an inherent difference between human and nonhuman, subject and object, mind and body, matter and discourse.1 The violence and violations of 2023 defy description: environmental disasters (e.g., floods, hurricanes, earthquakes and out-of-control fires in multiple parts of the globe); threats of authoritarianism throughout Europe and the Americas; the ongoing conflict in Ukraine, and the unspeakable genocidal violence in the Middle East threatening Israelis and the eradication of Palestine; threats by gangs and other armed groups and horrific violence against women and racialized minoritized communities in many parts of the world, extractive industries leveraged from the Global North forcing thousands in the Americas to cross borders in search of basic resources for survival and destroying Abya Yala.2 According to the United Nations, wars displaced more than 84 million people by the end of 2021, and 87 percent of those killed in armed conflicts are civilians. By the end of 2023 those numbers will only be higher. Estimates from 2020 suggest that there are 281 million migrants – that is, those living beyond the borders of their countries of origin – a number which equated to 3.6 percent of the global population, and which is anticipated to rise. The UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Tendayi Achiume, reminds us that this is not the first mass migration between Europe and the Americas and other parts of the Global South. Rather, between the 19th century and the middle of the 20th century, over 60 million Europeans travelled across the world as the original ‘economic migrants.’ In her article ‘Migration as Decolonization,’3 among other publications, she argues that for these migrants the goal of extracting wealth from the countries to which they were moving and funnelling it back was part of colonization and enslavement, processes that included the displacement, slaughter and death through disease of most of the Indigenous populations on the lands that they occupied. In contrast, today international law permits countries to close their borders, and former colonial powers manage borders in highly racialized ways, denying entry to those whose riches and lands were taken by these original migrants.4 Also, transitional justice is, among other things, being sought increasingly by peoples of the Global South and those in the North who are racialized and displaced from their traditional lands but living in ‘established democracies,’ as resources for redress and reparation.5 Readers and published scholars and activists in the International Journal of Transitional Justice community explore the work within its pages to better understand some of the multiple ways of thinking about and taking action within or in the wake of many of these complex contexts of violence and violation. Ten years ago, Abdullahi Ahmed An-Na’im editorialized in this journal about the neocolonialism underlying or emerging through transitional justice across diverse sites.6 He challenged those of us educated and/or working in the Global North to move beyond an academic debate about decolonization and to heed voices from the Global South. Others have written in more detail about those voices and ways of being and knowing that urge a holistic approach to the wellbeing of all living systems, including ecosystems and animals; we live within a pluriverse, not a universe.7 Rosemary Nagy identified other limitations of transitional justice, arguing that the Canadian Truth and Reconciliation Commission on residential Canadian schools offered an opportunity to ‘rethink the scope and bounds of transitional justice.’ She cautioned, however, that the conservative political environment and the commission’s own focus on individual healing shifted the potential impact of the Commission, at least in part, because its focus individualized healing whereas ‘… Indigenous healing is intrinsically connected to structural transformation and reconciliation depends upon remedying colonial violence in the present.’8 Despite these limitations, it is widely recognized that transitional justice developed as one set of responses to the gross violations of human rights attendant to multiple contexts of mass violence in the Global South.9 The changes sought by survivors and those who accompanied them were envisioned as promising governance processes that enhanced participation of all and ensured redress from harms done while promising non-repetition. These sought-for aspirations for transitioning towards democracy reflect what Vanessa de Oliveira Andreotti et al., among others, describe as attaining the ‘shine’ of modernity; that is, the multiple outcomes or effects of linear democratic governance processes that guarantee political and economic wellbeing, including housing, food security, water, education and physical and psychosocial health. Yet many, if not most, who continue to live in marginalized, racialized and impoverished communities ‘post conflict’ remain in the ‘shadow,’ not the ‘shine,’ of modern nation-states. We argue here that despite its promise, transitional justice all too often fails to reach its potential as a response to the magnitude, horror and devastating effects of the violences of armed conflict or, more recently, as a resource to redress the effects of structural racism, impoverishment and white supremacy – intersecting legacies of settler colonialism. We briefly explore some of the soft and radical efforts to reform transitional justice – and ask if it is, in fact, beyond reform. An-Na’im and Nagy are two among a growing number of authors in IJTJ over the past decade who have argued for, documented and critiqued some of the limitations of transitional justice. Others among the critics have pressed for seeing victims and survivors as agents of change, urging for more locally driven initiatives ‘from the bottom up’ or ‘from the periphery.’10 Heeding those calls, some scholars and scholar-activists have argued for victim-centred, victim-participant and/or transformative justice.11 As one response, a field initially deeply rooted in legal discourse and practice has increasingly shifted towards inter- or multidisciplinarity, where philosophers, anthropologists and social scientists are regularly published in these pages. Increasing numbers of empirical studies in the field also reflect a growing diversity of research methodologies, and such studies often raise concerns about the impact of transitional justice interventions and their import for policy.12 These responses to violence, that is, to the shadow life of the modern nation-state, are examples of what Andreotti et al. refer to as ‘soft reforms,’ i.e., efforts to do things (e.g., transitional justice) differently, including the introduction of diverse disciplinary and methodological strategies, while asking similar questions within the same global imaginary. Transitional justice’s growing interdisciplinarity and recent emphases on more quantitative and mixed methods for evaluating outcomes or informing policy all too often sustain the power and decision-making of theoreticians or outside practitioners, failing to shift the grounding of our knowledge, which remains centred on transitions to a northern-based democratic governance. Soft reform is thus grounded in a single story of progress, development and evolution wherein we assume that we can make the system better through transforming policies and practices. These changes assume a continuity of theory and praxis whereby the questions and answers stay the same as they evolve. Andreotti and colleagues suggest that the ‘radical reformer’ also seeks to fix the same system but recognizes that more substantial changes are required to make it better – that is, radical reformers ask the same questions but seek different answers by turning to different voices and adopting new perspectives and frameworks. We suggest that in transitional justice these pressures to include more disparate voices involve particularly those from the ground up. That extends to greater participation and leadership of survivors and their NGOs, that is, a transitional justice that centres victim organizations engaged in collective actions towards a just peace, one that might be characterized as ‘radical reform.’ Other examples of these efforts are reflected in the theoretical challenges to the polarization of victims and perpetrators, that is, the recognition of the blurred borders among many survivors who are also perpetrators; as well as the growing attention to diversities among those experiencing sexual violence, the multiple violations of women beyond that of sexual violence and rape, as well as the existence of female ex-combatants as ‘complex political perpetrators.’13 However, despite these reforms, academics in and from the Global North and/or professionals with expertise in EuroUnitedStatesian human rights practices continue to hold power in these transformative processes. Thus, we suggest that these ‘radical reforms’ acknowledge different ways of knowing and diverse epistemological questions and sometimes expand global imaginaries but maintain the centrality of that which is and power from the centre. Recent and forthcoming special issues of the journal suggest that efforts to reform transitional justice fall short of the aspirations of local communities in the wake and persistence of violence and, more importantly, fail to recognize the diverse ecosystems in which local communities make meanings, that is, those beyond the human. They challenge transitional justice to draw on alternative ontologies or ways of being as well as alternative epistemologies or ways of knowing. Some have suggested that we must ‘decolonize transitional justice.’ For example, in his discussion of the work of post/decolonial scholars Nelson Maldonado-Torres and Walter D. Mignolo in the IJTJ, Mohamed Sesay drew attention to three colonial-like structures in which, he argues, Africa [today] remains entangled despite multiple transitional justice processes and efforts at reform. They include the: (1) coloniality of power which is about how the world is constructed, constituted, and configured into a racially hierarchized order; (2) coloniality of knowledge which is the epistemological concern about the politics of knowledge production, representation, and purpose; and (3) coloniality of being which undermines people’s belief in their own languages, heritage, capacities and ultimately in themselves.14 In their mapping of multiple ways ‘to analyse different meanings and practices’ for change, Andreotti and her colleagues suggest that decolonization may only emerge ‘beyond reform.’ We suggest here that if transitional justice can decolonize or contribute to changes in the colonialities identified by Sesay, it can only do so vis-à-vis a theory and praxis that is ‘beyond reform.’ Decolonization may challenge us to disinvest in current norms wherein the human rights holder is primarily or exclusively an autonomous individual or a group of multiple individuals. Such claims – and the theory and praxis they undergird and sustain through transitional justice – may have become, in the words of Andreotti et al., ‘unsustainable’ or ‘unfixable,’ at least in part because they fail to incorporate all living systems or because of their centrality to colonization processes with legacies enumerated above by Sesay.15 We explore possible meanings of transitional justice as ‘beyond reform’ to suggest how it might emerge from different global imaginaries or cosmologies, that is, no longer one world grounded exclusively in universals, but within a pluriverse – that is, challenges to a single modernist ontology in favour of a multiplicity of possible worldviews and practices in a collective search for an ecologically wise and socially just world, that is, a world where ‘many worlds fit.’16 This is not an easy journey, as the demise of the current ways of being and doing in this world wherein a dominant view of transitional justice and its reforms are ‘beyond repair’ may be accompanied by chaos or those of us engaging in it may be challenged to ‘unlearn’ many of its ways of being, doing and knowing that have sustained both its ‘shine’ – from which we have benefited – and its ‘shadow’ – which we have sought to redress. Among the ideas emergent from a pluriverse of multiple worlds and cosmologies that include other modes of existence are those articulated by feminist physicist Karen Barad, cited above, and other Indigenous leaders who are also scientists (e.g., Robin Wall Kimmerer) and from Indigenous communities or original peoples.17 We draw on some of Barad’s ideas and on Mayan scholars and activists who press for a recognition of multiple distinctive ways of knowing, being and doing within a pluriverse.18 We suggest that learning from Indigeneity offers an opportunity of being-doing-knowing that is rooted in an integral, collective relationship of land-body-territory. Multisystemic and relational approaches within and among those systems may disrupt dualisms of nature and culture, of human and nonhuman, of knowing and being, that themselves are frameworks that supported and sustained violence and violations dominant in modernity, capitalism, state domination, masculinist values, as well as the colonial dispossession of Indigenous lands. The latter remains a primary, foundational and ongoing injustice, and Indigenous communities in many parts of the globe including Guatemala are mobilizing today around territorial defence in the face of rampant, violent extractivism by transnational corporations that is all too often supported by the nation-state.19 For example, the Sepur Zarco transitional justice legal case in Guatemala that focused on sexual violence as a crime against humanity was a first-ever in-country prosecution and successful victory for gender justice. But the Q’eqchi’ women plaintiffs who testified noted that their husbands were disappeared or killed because they were organizing to legalize their titles to their lands. Moreover, the women noted that their experience of forced labour and sexual violence at the Sepur Zarco military outpost was not simply the rape of individual women. Rather, they experienced the bodily violation as their their and the Q’eqchi’ of which they are For the for justice or their their for the of their lands and the recognition of who they are as a Q’eqchi’ They thus a single story of or as a legal case – and a that supported this – to the perspectives of these women have against Sepur Zarco such as environmental and The was by and human rights activists as a victory for gender justice. But many who and those who on the in and international to recognize the focus on sexual violence was grounded in a transitional justice that but one which, we may have ‘beyond reform.’ multiple Indigenous feminist and noted This the transitional justice processes where there was a to towards the Mayan despite the that the of those redress were themselves Mayan – and both they and at the testified to those remains an to justice for Mayan As the argues, is not possible to understand the Mayan of the world from the because and knowledge and what we argue here to be a approach to transitional the Mayan a holistic of things, not but the among the the environmental and the towards an approach to people and scholars and activists have documented how Indigenous have the of violence, including rape, throughout of we are learning from Indigenous women is how they the of their and the They the of as the of their as a territorial Mayan and an and our on the of our first of the the as women we an and defence in two the defence of our bodily and the defence of our we recognize that the as well as the are of that must The Mayan what to as the of the and the in which the of all to culture, denying nature of or the of and the of how matter and not as an of or but as and work a dominant among social often as a that is, an on and a from towards one that has empirical research and feminist Indigenous and scholars Barad’s focus on as do Mayan to some of the challenges a transitional justice ‘beyond reform’ and on the work of other Indigenous activists in we argue that if matter to or in the violence of colonial dispossession and in responses to it and its we must recognize that the processes of colonization the into an The was that is, it was not and the a of that was and which was as for the of and As in the Special of this the of also as the of for Indigenous that and have or in as from other living and as from group or rights recognized in EuroUnitedStatesian human and in for example, are recognized as victims whose rights were the armed conflict and beyond they were or is recognized as living and the of and that it is or by the armed conflict’ also that healing is part of the of the this recognition as rights of the than rights over the Indigenous worldviews and in the pluriverse seek to recognize the ways in which is and They undergird a and that questions the approach underlying many of the claims in transitional justice and the recognition not only of collective rights but also of the rights of the This praxis that of Indigenous peoples throughout Abya and They their as one among many, that we are challenged to our and to the pluriverse in which we live and and multiple of which is grounded in an a of being, knowing and We suggest here that and policy seek to redress harms done through violences within and across through the multiple and resources that seek to a transitional justice. We have sought here not only to with some of the efforts at soft and radical reform but also to suggest that many within Indigenous communities urge us through their to in transitional justice within a Thus, we urge the of multiple ways of including dominant knowledge dualisms in and from the Global as well as those from Indigenous or original peoples in diverse parts of the world. The and in this suggest multiple ways in which scholars from the North and South as well as from diverse communities seek to redress multiple legacies of violence and ways of being, thinking and doing that contribute in some ways towards a pluriverse by moving us towards the world in which we seek to In of Truth and the of in the an of initiatives by and a of and processes through a approach to that has the potential to what she and that this approach to can as a for transitional justice that challenges within and beyond the in and the of a in the to a an through which will be to the remains of the and being to Indigenous colonial practice for more than remains were by settler for or academic of have the of such which are modes of to contemporary The is envisioned as a for about the existence of Indigenous communities the distinctive epistemologies and by and communities and the to Indigenous communities by the practices of on the and to challenge us to the ongoing political transitions in in his article the through and the in He argues that has the potential to disrupt in emerging from genocidal violence and armed conflict through both the and the at diverse in on the of and and the he the and of both the of and the the transformation of an and practice of into one of In the Transitional Justice in the of argues that the for has the to within its to how to transitional justice, local of such within to International modes of she claims that the to as to some of justice and a and to in of on Transitional The of Special for They argue that the ongoing violence within has for the of the Special for such violence undermines for participation by victims and in the and of victims from or from with their or and participation This in the and of the In and Transitional Justice in and to from the in which many transitional justice processes their discussion in a of efforts by the in they the shift from a focus on to They suggest multiple for this including in the that from and in from the from This of the IJTJ three from the two of which draw on voices from countries of the Global South and one from a by other in the In his from the by the argues that is a case in how not to in As a with of the he a to and not of the or of of justice and not simply remain but of and of In his in in challenges the dominant of authoritarianism in as to the of current political on the political and economic legacies of the of from to He that the have not to what he a that is, the of democracy and a to a In of to on to what she as an collective through which the to their communities as a within the of an armed group She argues that her for challenges emergent from that move ‘beyond reform’ in transitional justice. The by three that or in of transitional justice to wherein and was by violence and violations by and state against of horrific our attention to the focus on the that from but also on other across contexts in on and politics as well as on the of in justice.

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