Southern Voices in Transitional Justice: 
A Critical Reflection on Human Rights and Transition

Abstract

William Twining famously reminded us that ‘[t]he dominant Western scholarly and activist discourses about human rights have developed largely without reference to other standpoints and traditions.’ He cautioned that claims to the universality of human rights should pay heed to other traditions, listening closely to the local and the specific, and seek out the voices of those who could meaningfully interpret and create distinct ‘Southern’ perspectives. His clarion call seems fortuitously placed as contemporary emphasis on transitional justice and rule of law discourses have taken on much of the same kind of presumed universality, and are produced at a substantial distance from those places and people that are most likely to be the subjects of transition and role of law proselytizing. In parallel, as Mark Fathi Massoud has noted, just as ‘human rights law [seems] to be promoted as a kind of carpet under which the dust and trauma of the war would be swept and left behind,’ so too has transitional justice become the fixer for war and authoritarian ills in the post-Cold War era.

This essay explores the ways in which Southern voices, central to William Twining’s vision of an integrated cosmopolitan legal order, are heard (or not) in the cacophony of sound that comprises transitional justice theory and practice. In one sense, what follows is a study of marginality and exclusion, and carries some sense of déjà vu as transitional justice repeats old and known patterns of legal hegemony in new, generally Southern, places and spaces. These places and spaces include sites emerging from violent conflict, fragile states, and states in the tenuous process of building new legal and political orders following the adoption of comprehensive peace agreements. orders following the adoption of comprehensive peace agreements.

Just as international law has been described as favouring ‘a falsely rigid, ahistorical, selectively chosen set of self-justificatory texts and practices whose patent partiality raises the question of exactly whose interests are being served and who come out on top’, critical approaches to transitional justice emphasize its elite grounding, its fundamental consistency in supporting status quo rules of international law, and the centrality of the public/private divide to addressing systemic human rights violations. Drawing on Massoud’s theory that legal systems in their intact liberal conception do not exist in failed states but rather that law plays a multiplicity of roles in maintaining and legitimizing repressive regimes, I assess the ways in which transitional justice may both combine a new cosmopolitanism in times of the transition yet repeat old habits, albeit in highly revised garb. In this context, I probe the extent to which repressive and old conflict regimes move strategically to manipulate law and legal resources to maintain elite interests, even in the face of what appear to be substantive reviews of and revisions to the legal order in transitional settings. They are often aided and abetted by institutions and states from the global North, whose multiplicity of interests in these sites span the economic, the strategic, the political and the symbolic. In this telling, transitional justice theory and practice is an integral part of the legitimization that accompanies change, and its limited dialogue with local legal orders reflects Upendra Baxi’s long-standing critique of human rights discourses as being commodified, professionalized by humanitarian technocrats, and – most worryingly – hijacked by powerful groups and states.

Keywords: Transitional justice, colonialism, rule of law, conflict, universality, cultural relativism, imperialism