The Perils of Transitional Justice:
The Case of Postcolonialism in Contemporary South Africa and East Timor
AbstractThe operation of transitional justice occurred in context where the rule of law insucceed. Carrying certain aims such as peacebuilding, providing political redress in dealing with injustice happened in the past, and acknowledging the factor of violence in conflicts. While the aim is straighten out, there is tendency in transitional justice literature to separate colonialism as one historical injustice that are contributing to the constraint of ideal remedy of its framework. This omission caused some troubling silence, and the instrumentalization of liberal peacebuilding do not answer the interests and values of the locals. This paper suggest that the process of transition may in fact be a far more complex and challenging than the literature generally portray. More significantly, this process of redeveloping the rules for the people to govern themselves is sustained through colonial legacies with the accomplice of political elites. By looking at postcolonial theories to trace the history, the conceptualisation of transitional and justice can be further examined. This paper sets out to support the reformation of the juridical practices grounded in local traditions considering the culture, context and consent with the case study of South Africa and East Timor.
Table of Contents 1. Introduction 1.1 Research Question……………………………………….. 1.2 Methodological and analytical framework………………..
1. 3 Sources and Literature…………………………
1. 4 Structure of thesis………………………………….
2. Background 2.1 Transitional Justice under postcolonialism context
2.2 History of Independence
3. The Dilemmas of Transitional Justice
3.1. Conceptual and Historical Ambiguity 3.2 Privileging and Marginalizing Tendencies
4. Argument I: Transitional Justice Operates under the Internal Logic of Western Liberal Humanism 5. Argument II: New Strand of Hegemony6. Case Studies (Empirical) 6.2 Component of “Little Injustices” in South Africa and Indonesia 7. Conclusion
The operation of transitional justice occurred in context where the rule of law insucceed. Carrying certain aims such as peacebuilding, providing political redress in dealing with injustice occured in the past, and acknowledging the factor of violence in conflicts. Transitional justice can be defined as an approach to systematic or massive violations of human rights that both provides redress to victims and creates or enhances opportunities for the transformation of the political systems, conflicts, and other conditions that may have been at the root of the abuses.
While the aim is straighten out, there is tendency in transitional justice literature to separate colonialism as one historical injustice that are contributing to the constraint of ideal remedy of its framework. The conventional focus in both the scholarship and practice of transitional justice has been on societies making a transition from war to peace, or from authoritarianism to democracy, with a more recent focus on contexts where the transition is from weak to strong observation of human rights. During the period of colonial rule, governance, law and justice were articulated and implemented in the nonsettler colony without the consent of the colonized and for the benefit of the colonizer. This omission caused some troubling silence, and the instrumentalization of liberal peacebuilding do not answer the interests and values of the locals.
Process of transitional justice happened in a post-conflict society oppressed under military or totalitarian governance, unresolved injustices and recognizing human rights abuse. Looking at the system of universal human rights definition as power to erect justice. Declaration of Human Rights stated:
“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” (United Nations Universal Declaration of Human Rights, 1948)
Another paradox is that concept of Universal Human Rights itself faces cultural relativism which affected the implementation of transitional justice in the first place, together with the concept of justice itself faces normativity on the implementation. This has mainly consisted of an ‘objectifying’ tendency on normative thinking resulting, among other things, in a separation of the principles of justice from the same conditions under which justice aims to achieve its purposes.
Not only embedded in cultural relativism, the concept of power functioned in colonized country serve as purpose of universalizing Western law since the beginning. Referring Giorgio Agamben concept of State of Exception, we find that Europeans implying Western law for the People on settled land by practicing an exception that the law permits eliminating indigenous people to define power of the settlers.
This research suggest that the process of transition may in fact be a far more complex and challenging than the literature generally portray. More significantly, this process of redeveloping the rules for the people to govern themselves is sustained through colonial legacies with the accomplice of political elites. By looking at the evaluative standard of Western norms in looking at power and truth to trace the history and the effects, the conceptualisation of transition and justice can be further examined. This research sets out to support the reformation of the juridical practices grounded in local traditions considering the culture, context and consent.
Most often transitional justice research focusing on aftermath of a conflict and the process followed. Conflicts break in different parts of the world, transitional justice mechanism and goals come as a way or alternative to rescue. However, it is hardly focus on historical injustices and how it affected the contemporary society’s thinking and those who imply certain mechanism. As Hugo van der Merwe acknowledged that the field of transitional justice is ‘narrow’ and ‘conservative’ in its scope, meaning that it can be criticised as ‘superficial’ for focusing only on ‘the excessive use of oppressive power or the ravages of collective violence rather than the basic nature of an exploitative system.
Moreover, the ideology of peace versus justice debate in transitional justice takes the form of a trial versus truth commission debate. The term of ‘Justice’ equated with criminal prosecution through set of trials – for the purpose of this thesis, this will be the definition of justice unless otherwise stated. Other important aspect of transitional justice is the establishment of Truth commission embodying elements of promoting peace and often conceptualised as ‘reconciliation’. ‘Reconciliation’ meaning coming together, establishing friendship, return to the state of normality and restoration of harmony. This includes forgiveness, gaining mutual trust, and establishment of a “common narrative of the past and a shared vision of the future”. Reconciliation can be both a process and an outcome, states can move on a continuum towards more and more reconciliation in order to achieve just society after the conflict.
From these structures, what follows in this research question is to address and trace the colonial power manifest in the political institutions, specifically in the implementation of concept of transitional justice. This research question appeared in response to several phenomenon in the system of promoting transitional justice embedding universalized concept of human right, power and truth telling. The complexity caused by historical injustice is the idea of research questions as followed: (1) Which factors could explain why the process of transitional justice for past human rights violations has similarities with postcolonial theory?
(2) Why should the present generation of the colonizing countries compensate for what their forefathers did?
(3) What sort of dilemmas occured in the practice of transitional justice in South Africa and Indonesia?
The first research question aims at understanding why the process has turned more to implying universalized concept than historically focused. Can the system really be criticised or have there been a significant valid reasons for its focus on addressing human rights abuses? The second research question relates to the consequences of the lack of acknowledging the past as part of the unjust, and the reconciliatory policies. This thesis is not concerned with all the consequences per se, but aims to figure out whether the lack of acknowledging the historical factor has had as negative effects as critics claim. Can it be argued that the lack of acknowledgement not has been as detrimental after all? How sustainable this concept is today? The aim of this thesis is to question the possibility and utility ofpast atrocities and in this regard, case study in South Africa and East Timor would be the example. It is also to ask whether some of the criticism towards lack of accountability in transitional justice process should be reconsidered.
1.2 Methodological and analytical framework This is a qualitative analysis with focus on colonialism theory and the empirical case of South Africa and East Timor. It is written within the genre of contemporary history, but the subject matter of transitional justice is also an interdisciplinary course walks into other social sciences, most notably political science and law. Moreover, Foucauldian discourse analysis serve the tool to do the analytical parts. Stephen Ball contends that “the point about theory is not that it is simply critical” and that theory in educational research should be “to engage in struggle, to reveal and undermine what is most invisible and insidious in prevailing practices”. Discourse analysis that draws on the work of Foucault is well placed to do this. Formation of discourse in the sense of Foucault has four essential characteristics; these are statements that referring to the same object, are articulated in the same way, share a common system of conceptualisations and have similar subjects or theories. Rather than focusly giving a specific meaning to these units, this function relates them to field of objects, instead of providing them with a certain subject, it opens for number of possible positions; instead of fixing limits, meanings, identity, it places them in a space which they are used and repeated.
“This is similar to the use of language, which also presupposes general knowledge of the language – even when historically this language (as shared grammar, rules, etc.) has developed from actual instances of talk and text. In the same way, unique contexts may interactionally instantiate general, shared social identities (e.g., of class, gender, ethnicity, sexual orientation, profession, nationality) or roles (wife, sister, friend, boss, immigrant, etc.), in unique ways, but such unique identities can only be understood and have in?uence in talk when participants know their general, shared meanings” (Michel Foucault, The Archeology of Knowledge, p.110, 2012)
While discourse analytical research is always three-dimensional, in this research text and context should and will be included, the data used in this research primarily is secondary literature/source of data finding. Emphasizing that choices made on the literature comes from topic of colonialism, post-colonialism and transitional justice focusing on the implementation and not mainly on the law sides nor policies. “No researcher can study everything”, this is caused by the fact that empirical research bounds to the limitation of manpower, time, and money, which makes facing all aspects of discourse theory in the same depth impossible.
In this case, issue area of transitional justice is part of a constantly growing literature on different part of states emerging from conflict and/or authoritarian rule seeking transformation to just, peaceful and democratic societies. The subject of this thesis should therefore seen the theoretical backdrop of universalized idea of background components serving the aims of transitional justice e.g. truth-telling, peace and just society and measuring human rights abuses.
1. 3 Sources and Literature
The literature relevant for this thesis can mainly be divided into two groups: texts concerning transitional justice and texts concerning postcolonialism theories. The research field of transitional justice originated in the study of war tribunals and transitions in affected states post World War II. This is the birth of first milestone of Shklar’s 1964 book entitled Legalism. Gained attention in the 1970’s and 198’s with focus on trials and criminal justices as means to address and promote human rights. At approximately the same time, settler colonialism left their colonies due to troubling facts that there was war in their homelands and keeping up with policy was too hard to maintain. Decolonization process also happened after the World War II which gave colonized countries their independence to become a sovereign state. To explain about the colonialism part this research will use Giorgio Agamben’s theory of State of Exception and Homo Sacre and some from prominent postcolonial theorists such as Edward Said and Homi. K Bhabha.
In this case, Agamben focuses more on the concept of biopower which influenced by Foucault and not concerned with colonialism per se – with the historical phenomenon of colonialism – instead, his paradigm provide understanding life and articulate a set of more extensive problems.
The process of transitional justice in general received considerable attention, taken into account the process happened almost in every states where conflicts occured. There is substantial information and literature on the subject, though it is not overabundant but sufficient for the purpose of this research. Which quite the same case with literature on postcolonialism. Much of this literature however, focuses on a specific measure. On one hand transitional justice literature focuses on the steps taken in the post-conlift states. On the other hand, postcolonialism gave attention to question of identity, cultural relativism, and effects of colonialism in contemporary society. There are minor articles that look on these various aspects together as potential causality from the structure to the implementation. Most of these articles do see some positive and negative sides with the concept transitional justice, but they still tend to follow the legalist paradigm, and do not look critically at the consequences of lack of historical injustice which affected system of governance which gave birth to the concept of political elites.
Some researchers had addressed these two concept together has existed for the past five years. However, most of them mainly focuses on West Africa and Australia.
None look broadly or critically at how justice by trials is essentially a western concept, vastly different to traditional South African and East Timorese methods of conflict resolution and justice. In other words there are few who have discussed the subjects this thesis address in a comprehensive manner. The utility of the process will be more critically examined, as will be aimed to be achieved here.
The sources utilised in this paper are by no means an exhaustive list, but they were still able to provide a solid grounding for answering the research questions. Different philosophers and theorists used in this thesis were balanced against each other to ensure objectivity and accuracy, and empirical facts have only established when they were based on legitimate and supportive sources. Due to the wide scope of the thesis, a considerable amount of secondary literature has been selected. Scholarly books and articles have been used to establish empirical facts and give an overview.
1. 4 Structure of thesis Chapter two will first give a short introductory background to look at transitional justice under postcolonialism context. The starting point of analysis will be teoritize how it robs people in post-conflict states from knowledge of their past and distorts their view of themselves and each other. It will further outline the history of independence and how the assimilation process happened from predominant
To the dominant culture, also the casting society based on hierarchy and seeing other cultures as inferior.
Chapter three will discuss the first research question – which factors could explain why the process of transitional justice for past human rights violations has similarities with postcolonial theory. The chapter is divided into three main focus areas first the conceptual and historical ambiguity, privileging and marginalizing tendencies of which creates different struggle for identity, and blurring the lines between what is just and unjust.
After having established why the transitional justice process related to the side-effect of the postcolonialism, chapters four and five will turn attention to the second research question: to which extent the present generation should compensate from more of the previous generation had from settler colonization not only in the sense of mechanism but also understanding Western ideology in another concept. In order to do this in a systematic way these two chapters will be focused on the measures and institutions established to address past atrocities, and their outcomes will be evaluated by looking at the current situation and generation who have to undergo this whole process. At the same time the measures applied will be seen in the light of the concept of power, truth telling, cultural relativism, and the human rights approaches. The operation of transitional justice operates under the internal logic of western liberal humanism measures will be discussed in chapter four (peace and human rights), while the new strand of hegemony will be discussed in chapter five (power and truth-telling).
Chapter six draws together the main findings of this thesis by showing the empirical studies in South Africa and Indonesia. Both empirical outcomes and the implications this has for the theoretical approaches mentioned in previous chapters will be discussed. It should be noted that the main focus of case study in this thesis is on South Africa and East Timor, but it will to some extent also involve Indonesia where this is natural. The space limitations of this thesis necessitate this selectivity.
2.1 Transitional justice under postcolonialism context
States which were once colonized experienced injustice which limits the scope of transitional justice. Looking at broader trend of conceptualizing the West as the representative of justice and human rights, that needs to act to the conflict and abuses happened in non-western states. Liberal democracy has been the desired goal of reconciliation under the implementation of International law and in this case addressing human rights abuse in different part of the world. International law, a complex process of authoritative and controlling decision operating across different nationalities exists to maintain world order.
As a result, western countries continue to be the agent that support the implementation of transitional justice processes in post-conflict countries such as Rwanda, Libya and East Timor, rather than recognizing with their own action and problematic past. Take example from settler colonialism countries such as Australia, Canada, and New Zealand and the US where liberal democracy took place, however, not enough recognition to address colonialism harm which affected the indigenous people. Considering conceptual constraints within the transitional justice framework by addressing structural and past injustices in particular colonialism, by looking at the historical and theoretical analysis to define the nature of injustice and continuing marginalization.
The concept of transitional justice has had limited impact in securing justice and addressing human rights abuses for the victims after conflicts in postcolonial states due to the adoption and ongoing colonial-style governance. The period of colonialism, governance, law and justice were implemented in the nonsettler colony without the consent of the colonized and mainly to serve the benefits of the colonizer. Once the colonized country gained their independence the system of governance was swift to the period where they adopted the same style by the local political and military elites which known as ‘the local elites’, who have taken over the ruling system and political power to control the system in particular socio-economy.
As one example to elaborate its complexity, the case of Indonesia could explain the formation of justice and power process to explain the complication of implementing one western focus law in post colonized country. The tension after colonization and the process of emerging all the components between local and western colonizer (The Netherlands) tradition before attempt to decolonize was not per-se vivid. In practice, the process of state formation is never linear, since the country consists of several different sources and layers of power which often clash and compete with each other. Moreover, the formation of colonial state followed a different path compared to European states, it’s a particular diffusing process of different sources and layers of colonial power. This leads to framework on how colonial state formation leads to questions about indirect and direct rule, brokerage, and colonial knowledge.
In this case, the application of transitional justice is becoming more complicated when it comes to a post-conflict state where the territory consists varieties of ethnicities, cultures, religions and languages. It is inevitable to face possibility of different types of conflicts sourcing from different aspects and the need to handle it differently. This is due partly to the fact that transitional justice has developed as part of the humanitarian law under international law, human rights and liberal democratization agenda instituted in the international system which is conducted by the West who practiced colonization in the first place.
Moreover, in spite of the growing implementation of transitional justice, the focus was strongly influenced by and mainly focused on the international political condition post Cold War. The argument here is that it mainly focuses on internal issues rather than serving international interest when it comes to resolving Other territorial or international conflict. David Halberstam contends that the wider implementation of transitional justice that occurs in this phase (Cold War) is due to the nature of conflicts taken place after the war, where most of them were conflicts that occurred internally and took place because of internal political fluxes rather than an international influence.
Another important factor marking this growth of transitional justice is the growing establishment of International Humanitarian Law, including the justification of an initiation of an armed conflict and the legitimacy of invasion and intervention of humanitarian mission. The persistent pressure on the UN general assembly to address human rights by the Amnesty International to adopt different types of committee, convention, leads to the conclusion that this law has been greatly advanced by global support and movement since the contemporary birth of it.
This expansion has somewhat enabled the international community to have a more active and proactive role in putting an end to the culture of impunity, dealing with human rights abuses and upholding the rule of law in post-conflict situations.
Based on some postcolonial theorists arguments, the standard form of colonization usually redirect attention from ‘one form of domination to other forms, exploitation and oppression that happened subtly, not vividly noticeable, even elusive and pernicious.’ In particular, while analyzing the complexity of the international system in facilitating injustices in different conflicted territories, Catherine Lu argues that for colonial injustices to rely ‘on social structural processes that allow or encourage individual or state wrongdoing, produce and reproduce unjust outcomes.’ This is the paradox that will further be examined on this research by looking at different arguments in the postocolonial states with particular implementation for international transformative projects such as transitional justice.