Embedded ambivalence: ungoverning global justice

ABSTRACT

This article argues that fundamental critiques of the transitional justice enterprise paradoxically ended up stabilising it through a mode, style, and experience of (un)governing that I call ‘embedded ambivalence’. Transitional justice has come to be characterised by certainty about its objectives (justice, peace, truth, reconciliation), but also by increasing uneasiness about the efficacy or benefits of its forms (transnational solutions, criminal law, state-based truth inquiries). The enterprise was built on the foundation of transnational and experiential comparison and commensurability, making it possible to incrementally expand the scope, institutions, and modes of regulation as a response to important critiques. Challenges remain, however. While self-critical expansion can improve the enterprise, it can also facilitate the evasion of foundational challenges. Repeated expansion raises questions about how and where to delimit the enterprise. Recent debates over the capacity of transitional justice to incorporate decolonial approaches or a praxis of solidarity highlight these tensions.

KEYWORDS:

• Transitional justice
• human rights
• transnational theory
• governance

Acknowledgements

Assistant Professor of International Law & Human Rights. Ph.D., The Fletcher School, Tufts University; J.D., Harvard Law School. My thanks to Deval Desai, Afroditi Giovanopoulou, Lisa Kelly, David Kennedy, Andrew Lang, Rebecca Tapscott, Emily Webster, the TLT editors and reviewers, and participants in the 2019 Global Un-Governance workshop at the University of Edinburgh.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 For an early examination of conflicts among objectives, see Bronwyn Leebaw, ‘The Irreconcilable Goals of Transitional Justice’ (2008) 30 Human Rights Quarterly 95.

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

3 To this we might add ‘both determinate and reflexive’, in Catharine Turner's words. Catharine Turner, Law, Violence, and the Impossibility of Transitional Justice (Routledge, 2018) chpt 2.4.

4 ‘A distinctive trait … is the recognition that the success of any inquiry depends on the awareness of the methodological challenges arising from the unruly nature of the object or objects under scrutiny. Transitional justice … is a case in point.’ Ruth Buchanan and Peer Zumbansen, ‘Introduction’ in Buchanan and Zumbansen (eds), Law in Transition: Human Rights, Development and Transitional Justice (Hart, 2014) 1–31. Clark and Palmer also call transitional justice ‘unruly’. Nicola Palmer, Phil Clark, and Danielle Granville (eds), Critical Perspectives in Transitional Justice (Intersentia, 2012) 1.

5 Deval Desai and Andrew Lang, ‘Introduction: Global Ungovernance’ (2020) 11(3) Transnational Legal Theory (this issue).

6 Hinton places transitional justice in a similar frame, suggesting that it is characterised by ‘teleological transformation … driven by an aspiration for human progress of a particular sort, a utopian dream of creating liberal, democratic, human rights-infused being – a goal it often shares … with related endeavors such as human rights activism, development agenda, humanitarianism, and peacebuilding’. Alexander Hinton, The Justice Façade: Trials of Transition in Cambodia (Oxford University Press, 2018) 11.

7 My thanks to Deval Desai for this phrasing.

8 Thomas Obel Hansen marked the tendency towards expansion at a relatively early point, focusing on ‘vertical expansion’ meaning the ‘increased importance and attention paid to different actors and levels where transitional justice can take place or be promoted from’ and ‘horizontal expansion’, meaning transitional justice tools applied ‘in highly diverse contexts, including undemocratic political transitions, transitions from violent conflict … and situations where apparently there is no ongoing transition’. Thomas Obel Hansen, ‘The Vertical and Horizontal Expansion of Transitional Justice: Explanations and Implications for a Contested Field’ in Susanne Buckley-Zistel (eds), Transitional Justice Theories (Routledge, 2014) 105–6.

9 Desai and Lang (n 5).

10 Antony Anghie, International Law: Imperialism, Colonialism, and International Law (Cambridge University Press, 2005); Thomas Skouteris, The Idea of Progress in International Law Discourse (Springer, 2009).

11 Dustin Sharp, Rethinking Transitional Justice for the Twenty-First Century: Beyond the End of History (Cambridge University Press, 2018) 88–89.

12 On the emphasis on legalism, see Alexander Hinton, The Justice Façade: Trials of Transition in Cambodia (Oxford University Press, 2018) 6; Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) Journal of Law and Society 411. On decolonial practices and transitional justice, see Pascha Bueno-Hansen, Feminist and Human Rights Struggles in Peru: Decolonizing Transitional Justice (University of Illinois, 2015).

13 On settler witnessing and indigenous testimony, see Rosemary Nagy, ‘Settler Witnessing at the Truth and Reconciliation Commission of Canada’ (2020) 21(1) Human Rights Review 219; on mediation, translation, and limits to Indigenous TRC testimony, see Bueno-Hansen (n 12).

14 Rosemary Nagy provided an excellent early critique of the rapid standardisation of transitional justice. Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections’ (2008) 29(2) Third World Quarterly 275. Zunino highlights the centrality of comparison to the field as well as the ‘cautions’ against ‘one-size-fits-all models’. Marcos Zunino, Justice Framed: A Genealogy of Transitional Justice (Cambridge University Press, 2019) 38–39.

15 Transitional justice, as a praxis field, is marked in part by experts, professionals, and scholars who rotate among those roles. See Palmer et al (n 4) 5. Thus, the critiques I discuss, while drawn primarily from scholarly sources, are often written by or in consultation with professionals in the field. Because the article attempts to capture a broad phenomenon in a limited length, it falls far short of capturing many of the crucial voices and efforts within the enterprise – including some that were and have continued to be critical from within.

16 Bueno-Hansen (n 12) 92.

17 Dustin Sharp has explored a compelling parallel approach in an important recent article, looking at the ways in which Cox's problem-solving theory could be applied to transitional justice, particularly in relation to critical theory. Dustin Sharp, ‘What Would Satisfy Us? Taking Stock of Critical Approaches to Transitional Justice’ (2010) 13(2) International Journal of Transitional Justice 570.

18 ‘Editorial Note’ (2007) 1(1) International Journal of Transitional Justice 1.

19 Ibid 2.

20 Anne Orford, International Law and Its Others (Cambridge University Press, 2006).

21 Zunino argues persuasively that the familiar historical narratives of transitional justice reflect the internal biases of the discourse itself, one which emphasises certain aspects while framing out others that do not conform to the established expectations. For that reason, he resurrects what he calls ‘missing histories, excluded mechanisms’ as a new pre-history. I am acutely conscious of the danger of contributing to the reification of the field's mythos, but for purposes not only of space but to study the notion of the expert field on its own terms, I focus on the more traditional story. See Zunino (n14).

22 Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism (Verso, 2019) 231.

23 Ruti Teitel, ‘Transitional Justice Globalized’ (2008) 2(1) International Journal of Transitional Justice 1.

24 Arthur (n 2).

25 Ibid 338–39; Nicholas Guilhot, ‘“The Transition to the Human World of Democracy”: Notes for a History of the Concept of Transition, from Early Marxism to 1989’ (2002) 5(2) European Journal of Social Theory 219.

26 Zunino draws attention to an earlier scholarly meeting that discussed many of the overlapping questions of emerging democracies, accountability, and past violence. Convened by John Herz, the 1979 meeting was convened in part with the idea of providing the type of transnational policy expertise that later became the foundation of transitional justice. At the time, however, the idea was not picked up and the expert community did not emerge until years later. Zunino (n 16) 59–60.

27 Neil J Kritz, Transitional Justice: How Emerging Democracies Reckon with Former Regimes (USIP, 1995).

28 Priscilla Hayner, ‘Fifteen Truth Commissions 1974–1994: A Comparative Study’ (1994) 16(4) Human Rights Quarterly 598.

29 Ibid 599–600.

30 Jamie Rowen, Searching for Truth in the Transitional Justice Movement (Cambridge University Press, 2017).

31 Rowen reports that Ford gave the ICTJ $4 million in 2001 with a pledge for an additional $11 million over the following three years. Ibid 37.

32 The South African Truth and Reconciliation Commission was probably most directly responsible for launching transitional justice as a dinner table, peace negotiation table or, indeed, election manifesto topic. Van der Merwe and Lykes (n12) 382.

33 Kieran McEvoy, ‘Travel, Dilemmas and Nonrecurrence: Observations on the “Respectabilisation” of Transitional Justice’ (2018) 12(1) International Journal of Transitional Justice 187.

34 Dustin Sharp, Rethinking Transitional Justice for the Twenty-First Century: Beyond the End of History (Cambridge University Press, 2018) 9.

35 Vasuki Nesiah, ‘Missionary Zeal for a Secular Mission: Bringing Gender to Transitional Justice and Redemption to Feminism’ in Sari Kuovo and Zoe Pearson (eds), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance (Hart, 2011) 155.

36 Ruti G Teitel, ‘Transitional Justice Genealogy’ (2003)16(1) Harvard Human Rights Journal 70.

37 Ibid 90 (‘The most recognised symbol of the normalization of transitional jurisprudence is the entrenchment of the Phase I response in the form of the International Criminal Court (ICC), the new international institution established at the end of the twentieth century’).

38 For important work on these narratives, see, e.g., Zunino (n 16); Sharp (n 29); Hinton (n 6).

39 As Stanley Cohen points out, this narrative was legible in large part because it operated within the existing human rights framework. Stanley Cohen, ‘Unspeakable Memories and Commensurable Laws’ in Susanne Karstedt et al (eds), Legal Institutions and Collective Memory (Bloomsbury, 2009) 27–39.

40 Hinton, The Justice Façade (n 6) 10–17.

41 Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Beacon Press, 1998).

42 Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics (Cambridge University Press, 2018) 100–2.

43 Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing the World (W W Norton, 2011).

44 Peter Dixon and Chris Tenove, ‘International Criminal Justice as a Transnational Field: Rules, Authority, and Victims’ (2013) 7(3) International Journal of Transitional Justice 393; Mariana Pena, Gaelle Carayon, ‘Is the ICC Making the Most of Victim Participation?’ (2013) 7(3) International Journal of Transitional Justice 518.

45 Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) Journal of Law and Society 411.

46 The effects of law were not only on the regulation of violence but on the assessment of that regulation. ‘If violence is something knowable and addressable, then the solution must be something applicable, replicable, generalizable and measurable. Transitional justice is not therefore something to be experienced, interpreted, or contested. Nouwen suggests that this may be partly to do with the object of much research on transitional justice: the law, an object that is (incorrectly) constructed as external to the lawyer … ’ Briony Jones, ‘Qualitative Data and the Challenges of Interpretation in Transitional Justice Research’ in Naomi Creutzfeld et al (eds), Routledge Handbook of Socio-Legal Theory and Methods (Routledge, 2019).

47 What positivist methods ‘all share is a belief in unit homogeneity – that unit groups can be formed out of social facts like truth commissions, center-right parties, military regimes or spoilers – and in the ability to study such units across contexts – with spoilers in Argentina seen as categorically similar to those in Uganda’. Geoff Dancy, ‘Impact Assessment, Not Evaluation: Defining a Limited Role for Positivism in the Study of Transitional Justice’ (2010) 4(3) International Journal of Transitional Justice 355, 363.

48 Cohen (n 33) 37.

49 On the universalising impulse of transitional justice and its tendency to flatten local difference, see Hinton (n 6) 20.

50 Julieta Lemaitre, ‘Legal Fetishism at Home and Abroad’ (2007) 3(6) Unbound: Harvard Journal of the Legal Left 15.

51 Ibid 14 (‘Law, reformed by social justice activists, claims that suffering and humiliation caused by others is an aberration. That law-less-ness is also ab-normal, the normal being what is established in the norm. And if horror is an exception, a deviation from the right and normal path, then the centre of moral life is again full of meaning’).

52 See also Kamari Clarke, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback (Duke University Press, 2020).

53 Cohen (n 33) 37.

54 Nagy (n 3) 278.

55 On transnational legal ordering, see Peer Zumbansen, ‘Transnational Law as Socio-Legal Theory and Critique: Prospects for Law and Society in a Divided World’ (2019) 67(4) Buffalo Law Review 909, 943.

56 ‘ … instead of ordinary people having to struggle with the unpleasant disjunctions between private self-consciousness and public history (Did my fellow citizens, even people whom I knew and thought incapable of this, really do those horrible things? Did I only pretend not to suspect what was happening?’ Cohen (n 33) 37.

57 This is in no way meant to capture the expansive range of critiques but rather to draw attention to a subgroup that affected the commensurability claims.

58 Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) Journal of Law Society 411.

59 Arthur specifically discusses the conceptual origins of the transitional justice ‘field’: ‘an international web of individuals and institutions whose internal coherence is held together by common concepts, practical aims and distinctive claims for legitimacy’. See Arthur (n 2) 324. Bell describes it as a ‘non-field’, a ‘label or cloak that aims to rationalize a set of diverse bargains in relation to the past as an integrated endeavour, so as to obscure the quite different normative, moral, and political implications of the bargains’, provocatively refuting the opening editorial of the International Journal of Transitional Justice. Christine Bell, ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-Field”’ (2009) 3(1) International Journal of Transitional Justice 5, 6. Rowen argues for the term ‘movement’ to emphasise ‘the distinct structural qualities of the collective action due to the scholarship, policy making and advocacy related to the idea’. Rowen (n 25) 6. Mutua, Nagy, Theidon, and Sharp all call it an enterprise or an industry with ‘dedicated NGOs and an army of consultants and experts deployed all over the world’. Sharp (n 29); Makau Mutua, ‘What Is the Future of Transitional Justice’ (2015) 9(1) International Journal of Transitional Justice 1; Rosemary Nagy, ‘Transitional Justice as a Global Project: Critical Reflections’ (2008) 29(2) Third World Quarterly 275.

60 Hannah Franzki and Maria Carolina Olarte, ‘Understanding the Political Economy of Transitional justice: A Critical Theory Perspective’ in Susanne Buckley-Zistel et al (eds), Transitional Justice Theories (Routledge, 2013).

61 Christine Bell and Catherine O’Rourke, ‘Does Feminism Need a Theory of Transitional Justice? An Introductory Essay’ (2007) 1(1) International Journal of Transitional Justice 23.

62 See Ismael Muvingi, ‘Sitting on Powder Kegs: Socioeconomic Rights in Transitional Societies’ (2009) 3(2) International Journal of Transitional Justice 163.

63 Mahmood Mamdani, ‘The Truth According to the TRC’ in Ifi Amadiume and Abdhullahi An-Na’im (eds), The Politics of Memory Truth, Healing, and Social Justice (Zed Books, 2002) 176–83.

64 Dustin N Sharp, ‘Addressing Economic Violence in Times of Transition: Towards a Positive-Peace Paradigm for Transitional Justice’ (2012) 35(3) Fordham International Law Journal 780; Dustin Sharp (ed), Justice and Economic Violence in Transition (Springer, 2014).

65 On conflating critiques, see Padraig McAuliffe, Transformative Transitional Justice and the Malleability of Post-Conflict States (Edward Elgar, 2017) viii; Evelyne Schmid and Aoife Nolan, ‘Do No Harm’? Exploring the Scope of Economic and Social Rights in Transitional Justice (2014) 8(3) International Journal of Transitional Justice 362. Thus, we might imagine a tripartite critique: the need to include economic and social rights (narrow reform); the repetitive exclusion of structural violence and root causes (moderate reform); and the endemically violent nature of liberal or neoliberal justice (radical critique).

66 Louise Arbour, Economic and Social Justice for Societies in Transition, (2007) 40(1) NYU International Journal of Law & Policy 1.

67 Lisa J Laplante, ‘Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework’ (2008) 2(3) International Journal of Transitional Justice 331.

68 Sharp (n 11) 21–23.

69 Josh Bowsher, ‘The South African TRC as Neoliberal Reconciliation: Victim Subjectivities and the Synchronization of Affects’ (2020) 29(1) Social and Legal Studies 41. See also Bowsher, ‘“Omnus et Singulatim”: Establishing the Relationship Between Transitional Justice and Neoliberalism’ (2018) 29(1) Law and Critique 83; Franzki and Olarte (n 56).

70 See Padraig McAuliffe, Transformative Transitional Justice and the Malleability of Post-Conflict States (Edward Elgar, 2017) 43.

71 Eric Posner and Adrian Vermeule, ‘Transitional Justice as Ordinary Justice’ (2004) 117(3) Harvard Law Review 761.

72 Hansen (n 7) 117; Kieran McEoy and Lorna McGregor, Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Hart, 2008).

73 Thomas Carothers, ‘The End of the Transition Paradigm’ (2002) 13(1) Journal of Democracy 5.

74 Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford University Press, 2003).

75 Posner and Vermeule (n 71).

76 In a fairly typical example, Bensouda explains in a speech in Niger: ‘By so doing, we hope … to provide some comfort to survivors, restore dignity to lives devastated by atrocity crimes, and honour the memory of those whose lives have been lost. We must never forget the victims. We must work to prevent future victimization’. Press Release, ‘The Proecutor of the ICC, Fatou Bensouda, visits Niger, addresses National Assembly: we must never forget the victims’ (28 April 2017), online: www.icc-cpi.int/Pages/item.aspx?name=PR1300

77 Mark Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford University Press, 2012) 12.

78 Tshepo Madlingozi, ‘On Transitional Justice Entrepreneurs and the Production of Victims’ (2010) 2(2) Journal of Human Rights Practice 208, 225.

79 Ibid 225; See also Kieran McEvoy and Kirsten McConnachie, ‘Victims and Transitional Justice: Voice, Agency, and Blame’ (2013) 22(4) Social and Legal Studies 489, 498.

80 Marcus Joyce, ‘Duress: From Nuremberg to the International Criminal Court, Finding the Balance Between Justification and Excuse’ (2015) 28(3) Leiden Journal of International Law 623.

81 Erin K Baines, ‘Complex Political Perpetrators: Reflections on Dominic Ongwen’ (2009) 47(2) Journal of Modern African Studies 163, 183.

82 Bronwyn Leebaw, Judging State-Sponsored Violence, Imagining Political Change (Cambridge University Press, 2011).

83 The Secretary General lamented in his 2004 report: ‘Too often the emphasis has been on foreign experts, foreign models and foreign-conceived solutions to the detriment of durable improvements and sustainable capacity’. United Nations Secretary General, Report on Transitional Justice and Rule of Law, 2005, [15]. He continues: the ‘international community has … imposed external transitional justice solutions’ [16]; ‘pre-packaged solutions are ill-advised’ [16]; ‘no … transitional justice initiative imposed from the outside can hope to be successful or sustainable’. [17]. It is worth noting that by 2011, the Secretary-General's report on the same topics evidenced little to no concern about the export of transitional justice or about the heavy hand of international influence.

84 Mutua (n 59) 6.

85 Peer Zumbansen, ‘Transitional Justice in a Transnational World: The Ambiguous World of Law’ (2008) Comparative Research in Law & Political Economy, Research Paper No 40/2008 See, e.g., Binaifer Nowrojee, ‘Making the Invisible War Crime Visible: Post-Conflict Justice for Sierra Leone's Rape Victims’ (2005) 18 (1) Harvard Human Rights Journal 85.

86 Rowen (n 25).

87 Lykes and van der Merwe (n 12) 381–83.

88 Diane F Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 (4) The Yale Law Journal 2537, 2540.

89 Diane F Orentlicher, ‘Settling Accounts’ Revisited: Reconciling Global Norms With Local Agency’ (2007) 1(1) The International Journal of Transitional Justice 10. This second article was in part a self-conscious response to the reactions to the 1991 article, which Orentlicher felt had been widely misread to represent a blanket duty to prosecute rather than an analysis of the scope of prosecution under international law.

90 Ibid 18.

91 Ibid 19.

92 Ibid 21.

93 Karen Engle, Zinaida Miller and DM Davis (eds) Anti-Impunity and the Human Rights Agenda (Cambridge University Press, 2016).

94 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into for 1 July 2002) 2187 UNTS 3; 37 ILM 999, Art 17.

95 Alexander KA Greenwalt, ‘Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court’ (2010) 50(1) Virginia Journal of International Law 107.

96 Hinton, The Justice Façade (n 6) 46.

97 ‘Addressing the Past, Building the Future: International Conference’, Tunis (14–15 April 2011).

98 In 2014, I participated in one of these conferences in Tunis. Hosted by the United Nations and several NGOs, the conference was focused on economic, social, and cultural rights and transitional justice.

99 Kora Andrieu, ‘Confronting the Dictatorial Past in Tunisia: Human Rights and the Politics of Victimhood in Transitional Justice Discourses since 2011’ (2016) 38(2) Human Rights Quarterly 261.

100 Karen Engle, ‘Anti Impunity and the Turn to Criminal Law in Human Rights’ (2014–2015) 100(5) Cornell Law Review 1070.

101 Ariel Meyerstein, ‘Between Law and Culture: Rwanda's Gacaca and Postcolonial Legality’ (2007) 32(2) Law & Social Inquiry 467.

102 Recommendations in these areas were largely left unimplemented and reparations left unpaid. Kirsten Ainley, ‘Evaluating the Success of Transitional Justice in Sierra Leone and Beyond’ in Kirsten Ainley et al (eds), Evaluating Transitional Justice: Accountability and Peacebuilding in Post-Conflict Sierra Leone (Palgrave, 2015) 256.

103 Ronald C Slye, ‘Putting the J into TRC: Kenya's Truth Commission’ in Mia Swart and Karin van Marle (eds), The Limits of Transition: The South African Truth and Reconciliation Commission 20 Years On (Brill, 2017); Truth, Justice, and Reconciliation Commission, ‘Final Report – TJRC Report Volume 1’ (2013).

104 Dustin Sharp, ‘Addressing Economic Violence in Times of Transition’ (2011) 35(3) Fordham International Law Journal 802–3.

105 Natalie Davidson, ‘Alien Tort Statute Litigation and Transitional Justice: Bringing the Marcos Case Back to the Philippines’ (2017) 11(2) International Journal of Transitional Justice 271–72.

106 The Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, 2015).

107 See, e.g., Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections’ (2008) 29(2) Third World Quarterly 275–89; Bowsher, ‘Omnus et Singulatim’ (n 63); Franzki and Olarte, ‘Understanding the Political Economy of Transitional Justice’ (n 54).

108 There have been many of these incisive fundamental critiques, including Vasuki Nesiah, ‘Theories of Transitional Justice: Cashing in the Blue Chips’ in Anne Orford and Florian Hoffman (eds), The Oxford Handbook of the Theory of International Law (Oxford University Press, 2016) 779–96; Sharp (n 14); Mutua (n 59).

109 See, e.g., Khaniyesela Moyo, ‘Mimicry, Transitional Justice and the Land Question in Racially Divided Former Settler Colonies’ (2015) 9(1) International Journal of Transitional Justice 70; Nikita Dhawan, ‘Transitions to Justice’ in Susanne Buckley-Zistel and Ruth Stanley (eds), Gender in Transitional Justice (Springer, 2012) 264–83.

110 This was the aim of an important conference ‘Prison Abolition: Human Rights, and Penal Reform: From the Local to the Global’ held at the Rapoport Center for Human Rights and Justice, University of Texas at Austin School of Law (26–28 September 2019).

111 Augustine SJ Park, ‘Settler Colonialism, Decolonization and Radicalizing Transitional Justice’ (2020) 14(2) International Journal of Transitional Justice 19. Park's use of indeterminacy draws from settler colonial studies rather than Critical Legal Studies but there is resonance between the two, chiefly in the notion that the legal process is indeterminate of the end result.

112 Kimberley Theidon, ‘Review of Pascha Bueno-Hansen, Feminist and Human Rights Struggles in Peru: Decolonizing Transitional Justice’ (2017) 39(3) Human Rights Quarterly 769, 772.

113 Bueno-Hansen (n 12) 81.

114 Theidon (n 107) 772.

115 There are important echoes here with Nesiah's argument that reforming transitional justice by ‘including’ women risk ‘reinforce[ing] old myths’ rather than fundamentally challenging either transitional justice or (mainstream or liberal) feminism. Nesiah, ‘Missionary Zeal’ (n 34) 154.

116 Sarah Maddison and Laura J Shepherd, ‘Peacebuilding and the Postcolonial Politics of Transitional Justice’ (2014) 2(3) Peacebuilding 253, 264, discussing in particular Courtney Jung's work on Canada's transitional justice processes.

117 Anna Cook, ‘Recognizing Settler Ignorance in the Canadian Truth and Reconciliation Commission’ (2018) 4(4) Feminist Philosophy Quarterly 1.

118 Nagy (n 11).

119 ‘Women victims’ understandings of their experiences have a chance to emerge from the erasure of conceptual myopia, the consent-and-coercion binary, and linear temporal logic … [By contrast], the PTRC efforts were compromised by discursive reassertions of Peruvian social hierarchies, combined with the limits of the legal frameworks to grasp the intricacies of the rural community context’. Bueno-Hansen (n 59) 128.

120 David Kennedy, ‘Spring Break’ (1985) 63(8) Texas Law Review 1377.

121 David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press, 2016).

122 I have addressed this elsewhere, particularly as applied to Palestinian human rights efforts. Zinaida Miller, ‘Book Review: World of Struggle’ (2017) 67(1) Journal of Legal Education 345.

123 Those who have argued for contraction sometimes suggest that the ever-expanding enterprise will do little more than entrench its own limitations in a broader set of sites or ‘depoliticise’ the possibilities of transitional justice. See for example Catherine O’Rourke, ‘Feminist Scholarship in Transitional Justice: A De-politicising Impulse?’ (2015) 51(1) Women's Studies International Forum 125.

124 See, e.g., Matthew Evans, ‘Structural Violence, Socioeconomic Rights, and Transformative Justice’ (2016)15(1) Journal of Human Rights 9 (‘conflict and authoritarian rule produce injustices. Transitional justice may address some – but not all – of these injustices. Transformative justice is a means of conceptualizing how some of these other injustices may be addressed in postconflict and postauthoritarian contexts’).

125 See, e.g., Turner: ‘The vast majority of these critiques [internal and external] are an appeal to rethink the way in which transitional justice is conceptualised to leave open the transformative potential of transition, so that it can achieve its potential’. Turner, (n 3) chpt 2.4.

126 Maja Davidovic, ‘Transform or Perish? The Crisis of Transitional Justice’ (2020) 20(2) Conflict, Security & Development 293.

127 The concept of transformative justice as a separate sphere altogether is extremely recent, so it is impossible to know at this point whether the sense of transformation will tend towards a more decolonial approach or not. Certainly part of the impetus has been to alter the fixed power relations of transitional justice. Moreover, multiple approaches exist even at this early stage. See, e.g., Paul Gready and Simon Robins (eds), From Transitional to Transformative Justice (Cambridge University Press, 2019); Wendy Lambourne, ‘Transitional Justice and Peacebuilding After Mass Violence’ (2009) 3(1) International Journal of Transitional Justice 28.

128 Michael Rothberg, ‘From Gaza to Warsaw: Mapping Multidirectional Memory’ (2011) 53(3) Criticism 523, 526.

129 Ibid 538.

130 Bowsher, Omnus (n 63) 85.

131 M Brinton Lykes and Huge van der Merwe, ‘Critical Reflexivity and Transitional Justice Praxis: Solidarity, Accompaniment and Intermediarity’ (2019) 13(3) International Journal of Transitional Justice 411. For a parallel argument on solidarity and human rights, see Paul O’Connell, ‘On the Human Rights Question’ (2018) 40(3) Human Rights Quarterly 962.