Resistance and Transitional Justice

Briony Jones, Julie Bernath

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351855839
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Despite a more reflective concern over the past 20 years with marginalised voices, justice from below, power relations and the legitimacy of mechanisms and processes, scholarship on transitional justice has remained relatively silent on the question of 'resistance'. In response, this book asks what can be learnt by engaging with resistance to transitional justice not just as a problem of process, but as a necessary element of transitional justice. Drawing on literatures about resistance from geography and anthropology, it is the social act of labelling resistance, along with its subjective nature, that is addressed here as part of the political, economic, social and cultural contexts in which transitional justice processes unfold. Working through three cases – Côte d'Ivoire, Burundi and Cambodia – each chapter of the book addresses a different form or meaning of resistance, from the vantage point of multiple actors. As such, each chapter adds a different element to an overall argument that disrupts the norm/deviancy dichotomy that has so far characterised the limited work on resistance and transitional justice. Together, the chapters of the book develop cross-cutting themes that elaborate an overall argument for considering resistance to transitional justice as a subjective element of a political process, rather than as a problem of implementation.

Chapter 1

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Introduction: resistance and transitional justice

Briony Jones and Julie Bernath

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From a narrow focus on individual criminal accountability in the aftermath of the Second World War, the field of transitional justice has expanded to encompass increasingly diverse processes and mechanisms, aiming at achieving ambitious goals such as reconciliation, healing, justice, peace and democracy. Today, transitional justice has become established as a policy response designed to address human rights violations of the past in the aftermath of civil war, authoritarian regimes or occupation, whilst it is also mobilised in contexts that are not undergoing political transitions.

Along with the expansion and institutionalisation of the field of transitional justice, critical scholarship has increasingly highlighted the ways in which transitional justice processes are inherently political. Transitional justice can be analysed as a political process of negotiation between a set of diverse actors, including conflict parties, mediators, newly constituted governments, donor countries, intergovernmental organisations, civil society and victim groups. Transitional justice processes are the manifestation of the ability of these actors to determine the way in which dealing with a past of mass human rights violations becomes conceived, designed and enacted in a specific context. As such, transitional justice is never neutral or simply refers to a set of technical measures but, rather, necessarily prioritises certain practices, discourses and actors over others.

If we take this conceptual starting point that transitional justice is a political process, we can then expect resistance to be an inherent part of the empirical unfolding of transitional justice processes. And indeed, over the past two decades, critical scholarship on transitional justice has suggested the lines along which disagreements over the terms of transitional justice processes might emerge. In works on the everyday, for instance, scholars have highlighted the existing frictions between the local, national and global spheres that include ‘the possibility of embracing and reworking transitional justice processes but also of avoiding, protesting against or rejecting them’ (Riaño Alcalá and Baines 2012: 385; see also Kent 2011).

Disagreements might then surface as a result of the disconnectedness between internationally driven transitional justice processes and local realities (Shaw and Waldorf 2010; McEvoy and McGregor 2008; Pouligny 2005). It may also result from the embeddedness of transitional justice policies in the undemocratic status quo of world governance (Kagoro 2012; An-Na’im 2013) or in unequal power relations between different social and political groups at the national level (see e.g. Robins 2012). Finally, contestations may also stem from the ways in which transitional justice interventions lack transformative effects and do not address the root causes of conflicts (Mani 2008; Nagy 2013) or embody compromises and regulated politics in the context of failed revolutionary movements (Mullin and Patel 2016).

However, despite this more reflective scholarship in the last 20 years concerned with marginalised voices, justice from below, power relations and the legitimacy of mechanisms and processes, transitional justice scholarship has not often explicitly mobilised resistance as a concept. This is surprising since critical peace scholarship, which has been driven by a similar concern with the legitimacy of international peacebuilding interventions and their interactions with local contexts, actors and perceptions, has engaged with the idea of resistance (see e.g. Richmond 2010; Distler and Riese 2013). Resistance in particular features as an integral component of typologies of the hybrid peace (MacGinty 2011).

There are also only a few works specifically dedicated to analysing the empirical manifestations of resistance to transitional justice, i.e. analysing what resistance means for those who resist, why they might resist and what happens when they do. When resistance has actually been part of the academic discussions, it has come with a series of assumptions, which we will turn to in more detail in the next section. Whilst there are important exceptions (Thomson 2011; Brudholm and Rosoux 2009; Hamber and Wilson 2002) resistance often remains mainly associated with powerful spoilers who have something to lose in the transitional justice process. As such, resistance becomes cast as necessarily problematic and as something which has to be addressed in order for transitional justice processes to function smoothly and effectively. These assumptions, we argue, do not account for the political nature of transitional justice processes nor the empirical breadth of resistances to these processes.

This is a missed opportunity because researching resistance to transitional justice is key to understanding the legitimacy of these processes, the agency of the different actors involved and the diversity in systems of belief and imageries of peace, justice and political order. The study of resistance can enrich our understanding of the politics of transitional justice processes. This edited volume aims to address this limited conceptual and empirical understanding of resistance to transitional justice. It is based on the Swiss National Science Foundation funded research project ‘Resistance to Transitional Justice? Alternative Visions of Peace and Justice’ carried out at swisspeace, an associate institute of the University of Basel, from 2012 to 2015, with a focus on the three case studies of Côte d’Ivoire, Burundi and Cambodia.

Specifically, this book asks what we can learn if we engage with resistance to transitional justice not as a problem of process but as a necessary element in the empirical unfolding of transitional justice. This volume develops a unique approach to resistance to transitional justice. Resistance is defined by the subjective position of the actor who is resisting or labelling an act as resistance. Moreover, rather than departing from the norm of transitional justice in order to measure and explain resistance, the authors in this volume always take resistance as the conceptual and empirical starting point of their analysis. This allows us to engage with the multiple meanings with which transitional justice processes are endowed by diverse actors and to understand how these processes are embedded in longer-term political struggles and ongoing contestations over the nature and values of societies following periods of massive human rights violations.

In the next section of this introductory chapter, we review the existing literature on resistance to transitional justice. We then present in more detail our approach to resistance, before introducing the cases and methodology of this volume and providing an outline of the following chapters.

Resistance and transitional justice

Whilst the field of transitional justice has not yet comprehensively engaged with the subject of resistance, the limited scholarship that exists on resistance and transitional justice casts resistance in a particular light and assumes a certain set of motivations, objects and actors of resistance. This scholarship, we argue, tends to be concerned with the ‘spoilerism’ or ‘deviancy’ of those unwilling to accept transitional justice processes. This stems from the assumption that transitional justice is a moral ‘good’, i.e. that transitional justice is inherently positive and in the pursuit of unquestionable normative goals, such as justice, peace and democracy. It attributes a specific set of agency and normative values to the international and local actors involved in transitional justice processes, portraying on the one hand international actors as apolitical actors who are dedicated to ‘doing good’ and, on the other hand, local actors who might engage with transitional justice because of external pressures but will either try to subvert and block it or will remain unsatisfied by it. From this perspective, resistance then mainly becomes a question of implementation rather than politics.

Resistance is primarily associated with a first set of specific actors: those who have something to lose in the transition. This refers to the former political elite or the ‘old-regime loyalists’ (Subotić 2014: 135) who were involved in massive human rights violations, but also the direct perpetrators of violence, especially those who enjoy access to power and resources in the new government. The assumption is that these actors will oppose transitional justice processes out of fear of prosecution and in order to maintain their positions of power, legitimacy and access to resources. Resistance is then located beyond visible acts of blockages. It is assumed to take invisible forms and to be enacted behind closed doors through various stratagems during the negotiations not only for the establishment of transitional justice processes but also for their implementation. Thus, resistance becomes something static; it is assumed to be planned, strategic and seemingly enacted by a homogeneous group of actors.

Resistance is further associated with those social groups who benefited from a regime involved in serious human rights violations. Researching reconciliation in Australia, Jacobs (1997: 218, 208) has for instance shown how the projects of the Council for Aboriginal Reconciliation led parts of the ‘most powerful sections of societies’ to claim that they were the ones whose rights were being denied, since ‘Aborigines now have too much – too much of the nation’s history, too much land, too many special rights and services’. Some scholars also identify the traditional providers of justice, including state actors, as potentially resisting transitional justice processes. Since transitional justice corresponds to extensive interventions that deploy external actors in what is cast as an ‘extraordinary’ provision of justice in the aftermath of mass human rights violations, the usual justice providers may perceive transitional justice processes as ‘incursions upon their sources of legitimacy, income and power’ (Sriram 2012: 63).

The motivation ascribed to these actors for their resistance is thus again the fear that the transitional justice processes might rearrange power to their detriment and proceed to their delegitimisation in the new political order. The success of transitional justice processes and, in particular, international criminal justice, is thus perceived to be mainly dependent on the extent to which ‘spoiler’ resistance may be overcome. This is, for instance, what Hansen argues in the case of Kenya (2014: 119): ‘the success of international justice may ultimately depend on whether the [International Criminal] Court itself and members of the international community adopt strategies that can circumvent the resistance in the national political leadership’.

In addition to this first set of actors, there is a sense in transitional justice scholarship that resistance is also staged by those who are not ready to compromise in times of transition and to accept that the justice achieved in these contexts does not correspond to one’s ideal of justice but, rather symptomatically, reflects the context of transition in which it takes place. This type of resistance is most starkly associated with those victims who remain relentless in their demands for justice and unsatisfied by the transitional justice process. This can be seen in how transitional justice discourses ‘project a distinction between the “good” (undamaged) and “bad” (unreconciled or recalcitrant) members of the victimised groups’ (Meister 2002: 96). Reflecting on the case of South Africa, Madlingozi (2007: 112) tells us that such differentiations are pervasive in post-conflict societies and even more present in those contexts ‘where the oppressed did not win the struggle through military force, but where an elite compromise was reached which ensures that previous material and social privileges are maintained’.

This specific framing of resistance to transitional justice can be well illustrated with the widely researched case of the Argentinean Madres de la Plaza de Mayo. Indeed, according to Hamber and Wilson (2002: 45), ‘over the years, they have changed from being the “Mothers of the Nation” to Las Locas or the “Crazy Little Old Ladies” … The recalcitrant Madres were demonised as they no longer embodied the state’s vision of a reconciled nation.’ This group has continuously refused the closure expected from them, including diverse measures promoted as supporting this process of closure, such as exhumations and DNA investigations, indemnities, reparations or public tributes to their disappeared children (Lefranc 2002: 114). They thereby defy claims that such procedures, some of which have become defined internationally as constitutive of the ‘right to truth’, are fundamental to victims in their process of healing.

If we pay attention to their perspectives, we might learn that their resistance stems from the refusal of a symbolic closure of the past and the framing of the future as a continuation of revolutionary struggles (Lefranc 2002: 115). However, their resistance is most often boiled down to one of ‘resentment’. As ‘recalcitrant victims’, they are portrayed as ‘traumatised, self-preoccupied, resentful, and vindictive’, i.e. affected by emotions that are all dismissed for being negative (Brudholm 2008: 2), unsocial or unacceptable (Chakravarti 2011). Rather than being perceived as the affirmation of a constructive position and counter-values, these emotions are indeed seen to be in simple opposition to the demands for certainty, closure and unity of transitional justice processes.

Whilst there is little detailed engagement in the field of transitional justice with the subject of resistance, the existing understandings of resistance disqualify it as an illegitimate object of enquiry. Resistance is identified in behaviour deemed to be deviant vis-à-vis the predefined goals and activities of transitional justice processes. This is not to say that resistance might not indeed be staged by powerful actors who have been involved in gross human rights violations and are motivated by self-preservation in times of transition rather than ‘any desire to defend the rights and claims of the local population’ (Sriram 2012: 69).

However, we argue that resistance should not be dismissed as only or even primarily the act of spoilers as this does not fully reflect the empirical story of transitional justice processes. Since transitional justice is inherently political and contested, resistance is necessarily present in multiple forms in the empirical unfolding of transitional justice. Moreover, we argue that there is analytical value in understanding how and why resistance comes to be enacted and how it is framed and perceived by different actors, even if it is by powerful ‘spoilers’ or relentless victims, as it can help us to better understand the politics of the empirical unfolding of transitional justice.

Our approach

Given that the field of transitional justice has not yet, with some important exceptions, engaged in depth with the subject of resistance, it would have been possible to contribute to the literature in a number of different ways. The approach we decided upon for this volume has been directly informed by what we understand as the possibilities and limitations of the work on the subject thus far. A tendency to take transitional justice as the starting point means that resistance to it is framed and analysed as a counterpoint to the values and purposes that advocates ascribe to transitional justice processes.

Seen through this lens, resistance is cast primarily as a response to transitional justice and cannot be understood as informed, shaped or motivated by other processes or contexts relevant to actors of the transitional society. We argue that such a lens has the potential to limit our analyses of a potentially wide range of motivations that actors ascribe to acts labelled as resistance and to render resistance as static and one-dimensional. This is important, because we miss valuable opportunities to learn more about subjects which currently rightly occupy the work of many transitional justice scholars; subjects such as legitimacy, power and politics.

The conceptual foundations on which this volume are based are drawn from both within the transitional justice field and from disciplines that have a long history of engaging with resistance such as sociology, anthropology and geography. A multidisciplinary approach is required in order to engage with the subject in the most fruitful way possible, particularly in light of the points raised in the previous sections of this chapter. An immediate point of contrast between studies of resistance and of some of the transitional justice literature on resistance is that of the assumed motivations of actors. Studies of resistance have been accused of ‘romanticising’ resistance owing to a conceptual approach that entirely attributes acts of resistance to less powerful actors and projects of emancipatory change (Abu-Lughod 1990: 41–42).

Prior to the 1980s studies of resistance were focused on specific types of group action that were open and organised, selfless, principled, openly defying state policies and with revolutionary consequences (Scott 1985: 292; Fletcher 2001: 44). This approach was challenged by a new perspective developed in agrarian and subaltern studies, most notably by Scott and Guha. They focused on ‘everyday’ acts of resistance seen as the preserve of those actors ‘not afforded the luxury’ of resistance, having to ‘clothe their resistance in the public language of conformity’ (Scott 1985: 289–90). A concern with the subtle, everyday and hidden co...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• List of contributors
• 1 Introduction: resistance and transitional justice
• Section introduction: Côte d’Ivoire
• Section introduction: Burundi
• Section introduction: Cambodia
• Index