Transitional justice as a learning process: A contribution from the domesticating human rights model

I Introduction

Although apparently recent, the field of transitional justice (TJ henceforth) has expanded in the last two decades, so much that today some scholars claim that it has become an international norm. ¹ Indeed, the international community, through United Nations (UN) institutions, has embraced TJ as a mechanism to achieve its goal of peace and stability, by helping rebuilding countries that have suffered egregious human rights violations. Thus, what started as a thought experiment ² has become a quasi-normative process for every country that has experienced conflicts.

I use the expression thought experiment because, although Jon Elster ³ traces back to the Greek era the practices of TJ, and Ruti Teitel ⁴ originates its beginning after 1945, for many scholars, TJ as both a practice and an intellectual movement started with the effort to help countries emerging from dictatorship in Latin America and communism regimes in East Europe. ⁵ During this period, the most important element was to try those responsible of human rights violations before courts. Hence, retributive justice was the dominant paradigm, with the hope that acting that way, a society would cut loose from impunity.

Other experiences, however, came to add a new dimension to the practice of TJ, especially with the irruption of truth and reconciliation commissions (TRCs hereafter), the South African being the emblematic one. Indeed, the introduction of TRCs brought a new dimension to TJ that was lacking to the retributive justice focus. Instead of emphasizing the punishment of the individual, truth commissions were concerned with restoring social fabric and the healing of the individual person to bring him/her back into the community. While the retributive paradigm seems to originate from the Western liberal understanding of individual culpability and accountability, the restorative justice dimension of TJ is said to be locally inspired by traditional non-Western systems of justice, which were focused on saving the integrity of the community and the rehabilitation of the guilty person into the community.

Still a third dimension has been introduced, as a result of a critical reflection on the practice of TJ, which seemed to be only concerned with political and civic rights, while there could also be social and economic and cultural rights that have been violated. ⁶ That is why a new field has been opened concerned with reparation when possible. ⁷ This third dimension is understood as reparative justice. Thus, today one can say that TJ is built on these three pillars: retributive justice which is mostly concerned with criminal justice, adjudicated through courts (international, regional, and national); restorative justice which is acted through TRCs (there had been more than 40 of such institutions up to now); and reparative justice which can take different forms: material reparation, symbolic, and memorials. ⁸ Hence, the United Nations Security Council (UNSC hereafter) defines TJ as ‘the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’. The UNSC adds, ‘these may include both judicial and nonjudicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissal, or a combination thereof’. ⁹

Following this short historical introduction and quick look at the practice of TJ, one is tempted to agree with those who claim that TJ has become a consensual global norm for international community to deal with post-conflict societies. However, there have been many dissenting voices about TJ, challenging its normativity and even its ambition of coming to terms with impunity through retributive justice, and achieving a peaceful society through different mechanisms. The first critique challenges the understanding of the title itself, because TJ presupposes a movement toward a certain end, a certain goal. As Dražan Dukić notes,

in essence, the concept of transitional justice coalesces the notions of ‘transition’ and ‘justice’. The former aspect is commonly seen as the transition societies make towards a more legitimate form of governance and/or peace in the wake of repressive rule and/or mayhem. ¹⁰

In face of these critiques, this article explores whether the domestication of human rights theory can contribute to answering them. Briefly put, by the domestication of human rights, I mean the process through which human rights are incorporated into local contexts to deal with human rights violations. ¹⁴ Thus, the article will be articulated around three main points. First, I elaborate the different critiques quickly sketched in this introduction. Secondly, I present the domestication of human rights theory so that, in third place, I examine whether the latter adds anything new to the TJ practice that can help address these criticisms.

II TJ and its critiques

As mentioned in the Introduction, one of the critiques raised against TJ is about content of the project itself. Indeed, transition entails a movement toward something permanent; it is a teleological movement. And since the title is transitional justice, it seems to mean a process toward a permanent justice. So far, there is no problem since, after all, TJ is concerned with post-conflict period of a given society. In other words, TJ is about the interval between the period of conflict and the time of political stability. However, there is a problem here: by reducing the whole problem of conflict to a problematic of justice only, TJ seems to take a simplistic view on conflictual situations which are usually very complex. Unless one takes justice in its comprehensive – platonic – sense, it is obvious that the transition from a conflictual society toward a stable and peaceful one requires more than just justice. That is the rationale of the critique against the legalistic dimension of TJ, as shown below. In addition to that reductive possible understanding of TJ, critics of the concept of TJ see in it a liberal ideological agenda, through which its proponents envision liberal democracy as the goal of the political transition. ¹⁵ Building on the understanding of the adjective transition attached to justice, Hoogenboom states that ‘theory in the field [of TJ] has been bounded by a fundamental consensus – that the right kind of justice should help transition to a final end-point: a liberal democracy’. ¹⁶ That liberalizing goal of TJ is acknowledged even by scholars proponent of TJ, such as Teitel who writes that TJ had a ‘stated liberalizing aim’, ¹⁷ while Andrieu observes that

the assumption [of TJ] is, naturally, that the goal is liberalization and democracy: an open society where no one is excluded because of their ethnicity or beliefs, where citizens can pursue their own happiness and abide the pursuits of their peers, where there is both liberty and opportunity. ¹⁸

That is being the case, it is legitimate to ask why would every society embrace liberalism as its way out of conflict? Moreover, even if it were to be adopted, it should be by free choice not as an imposition from outside; otherwise there would be suspicion of liberal imperialism using TJ to gain new grounds. Why should liberal democracy be the only option for political stability and peaceful cohabitation for all societies?

Those questions lay the ground for the critique of legalism that dominates the practice and scholarship of TJ. Already in her genealogy of TJ, Teitel observes that TJ starts with the creation of Nuremberg and Tokyo courts. As she puts it, ‘phase I of the genealogy, the postwar phase, began in 1945. Through its most recognized symbol, the Allied-run Nuremberg Trials, this phase reflects the triumph of transitional justice within the scheme of international law’. ²⁰ This is the inauguration of the retributive justice when it comes to dealing with post-conflict period. Such model will gain importance with the creation of International Criminal Tribunal for ex-Yugoslavia in 1993 and the creation of International Criminal Tribunal for Rwanda in 1994. Most importantly, it was enshrined in the creation of International Criminal Court (ICC) by Rome statutes in 1998. That is why Kieran McEvoy criticizes the trend of TJ as mostly guided by and oriented toward legalism. According to her, the appeal to law for post-conflict societies is seductive because ‘claims that “the rule of law” speaks to values and working practices such as justice, objectivity, certainty, uniformity, universality, rationality and so on are particularly prized in times of profound social and political transition’. For indeed, in such context, ‘law becomes an important practical and symbolic break with the past, an effort to publicly demonstrate a new-found legitimacy and accountability’. ²¹

What is the problem with the exaltation of the rule of law? After all, many post-conflict societies are in bad need of a legal system and most of the human rights violations happened because of impunity. From that perspective, one would rather praise the dominance of legalism, as it not only rebuilds the legal institutional capacity but also initiates a process of breaking away from impunity. McEvoy does not dispute that. However, she argues that the legalism dominance is internationalized with imperialistic tendencies, and it institutes a distant justice which is not locally embedded. ²² In the same vein, other scholars contend that legalism so deeply entrenched in the TJ practice limits its finality of achieving social peace and reconciliation. For instance, Rosemary Nagy argues that ‘the problem is not with law and human rights per se but the depoliticised way in which “justice” can operate. A technocratic focus on “the law” abstracts from lived realities’. ²³ Andrieu goes in the same line when she observes that ‘a legalist paradigm is ill-suited to address the social forces and psychological dimensions that characterize mass violence’. Furthermore, the retributive justice follows the consequentialist model which leads to ‘political intrumentalization of law’. ²⁴ As for Hoogenboom, retributive justice accentuates the individual guilt, failing to ‘capture the wider social context in which conflict occurred’. ²⁵

Drawing from these views, it is obvious that there is a tension here brought by the TJ focus on the retributive dimension, and it leads to the next critique, that is, the imposition of TJ processes from outside. According to the critics, most of the TJ initiatives take place in non-Western worlds and even its beginning was initiated from the West to help non-Western countries – first those coming out from dictatorship and communism regimes, second, to those coming out from civil war conflicts. ²⁶ Hence, TJ is imposed on these countries as a solution to their conflictual situations. In Nagy’s words, ‘there…appear tendencies of the international community to impose “one-size-fits-all”, technocratic and decontextualised solutions’. ²⁷ And while it focuses on non-Western countries, it ignores not only the role played by the same democracies in fueling those same conflicts but also the conflicts internal to Western democracies themselves. Nagy observes that ‘little attention, if any, is paid to the role that established democracies have in violence’ and gives examples of Australia, Canada, and the United States where TJ initiatives are not taken despite the conflicts and violence found there. ²⁸ As to Franzki and Olarte, they underline the part of neocolonialism in the emergence and the sustaining of authoritarianism in Latin America. ²⁹

This second critique reinforces the ideological dimension of TJ aiming at liberal democracy rather than dealing with conflict and violence as such, because otherwise it would also apply to those democracies too. In other words, through international community that elaborates and imposes TJ process, TJ is accused of perpetuating paternalism and asymmetry in dealing with conflict resolution. Taking the example of Iraq, Nagy shows how the trials were set less for Saddam Hussein and his collaborators, than for ‘the political and educational benefit of the Iraqi people’. For her,

here the responsibility for chronic violence and instability of the Iraqi people was shifted away from the actions of the intervening powers and placed with the psychological immaturity of the Iraqi people. Prosecution and other transitional mechanisms are put in place to teach Iraqis, and not the USA and its allies, about the rule of law and human rights. ³⁰

Another critique is about the tension between peace and justice due to so much attention dedicated to the trials and the legalistic dimension of TJ. Although the UNSC insists that peace and justice need not to be opposed in the TJ process, ³⁴ often the legalistic dominance of TJ enters into an open conflict with peace and reconciliation. Indeed, most of conflicts are put to an end through negotiations and agreements, which grant either amnesty or immunity to the former belligerents. As Edward Newman remarks

a negotiated transition will invariably involve compromise on past human rights abuses, and in many cases outright amnesties or immunities. The corollary is that a rigorous treatment of past human rights abuse may prolong war or provoke instability, a coup, or authoritarian regression. ³⁵

On the other side, some scholars doubt the legal foundation of amnesty in public international law and argue that peace as fundamental right should not be jeopardized by norms which are not normatively grounded. That is the position, for instance, of William Schabas who contends that ‘invoking international law in order to constrain techniques such as amnesty that have proven so effective in the past in resolving conflicts is not desirable’. He continues, ‘peacemakers should not find themselves constrained by the mechanistic application of concepts whose claim to normative status has in any case been somewhat exaggerated’. ³⁹

The few examples above show that reasonable people disagree about achieving peace and justice simultaneously. For some, justice through courts has to prevail in order to move from conflict to peace and stability. This trend emphasizes the retributive justice paradigm. Others, however, claim that, not only such insistence advances liberal understanding of justice, ⁴⁰ but there is no certainty that it yields the expected results. ⁴¹ That is why there is a tension between the two, as peace might be advocated at the cost of justice like in the Mozambican case. ⁴²

The fifth and last critique to mention is the fact that, as TJ emphasizes the legal dimension and is oriented toward implementing liberal democracy, it does not take into account the social and political background that feeds the conflict. It follows a top-down model, which does not consider the context particular to each and every conflict. What McEvoy has called ‘the seduction of legalism’ applies here, because TJ wants to apply universal principles, which are certain, objective, uniform, and rational. And indeed, that was the belief of the pioneers of TJ project. Reckoning how it started, Tim Phillips asserts that

while it is true that every country has its own unique national experience and history, how people respond to the terrifying, humiliating and dehumanizing experience of life under dictatorship or during civil war is fundamentally the same around the world. ⁴³

In addition, critics raise the concern that TJ is marked by the opposition of victim against perpetrator ⁴⁵ which, according to Hourmat, ⁴⁶ is counterproductive. Using the case of Rwanda, she argues that by enforcing the dichotomy between victim and perpetrator, ‘dominant victimhood narratives…engage in additional instances of victimization by, on the one hand, rendering invisible certain victimization experiences and denying the diversity of victimhood and, on the other hand, limiting the political agency of both “victims” and “perpetrator”’. Consequently, she contends, TJ essentializes ‘the sociopolitical categories of “victim” and “perpetrator”, which ends up limiting individuals’ political agency and social reintegration, therefore hindering the reconciliation process in divided societies’. ⁴⁷ Hourmat’s point goes in the line of many scholars’ observation that TJ mechanisms conceal other forms of violence, such as violence against women, children, and elderly. ⁴⁸ Under the same angle, TJ is criticized for working on the assumption that one can clearly identify both the victim and the perpetrator, and TJ process needs such a clear-cut distinction for its own legitimation. A blameless and innocent image of the victim is needed as a foundation of TJ practice. However, that can only be the case if one ignores the political and social contexts that nurtured the conflict. Otherwise, some contexts are so blurred that it is not easy to designate a blameless victim and completely guilty perpetrator, as many scholars have shown. ⁴⁹

These dissenting voices seem very strong and are well-founded. The question is whether the domestication of human rights can help in answering them, if not totally, at least partially. Before looking at that possibility, I use the next section to present briefly the domesticating human rights theory.

III Domestication of human rights through translation

I develop the theory of domestication of human rights trough translation as a way of reexamining the cultural and political critiques raised against human rights movement seen, on the one hand, as an imperialist ideology whose goal is to advance liberal culture, and, on the other hand, as a neocolonialism in its implementation through humanitarian intervention. From this point of view, it might sound a discrepancy between this theory of human rights and the TJ processes. However, as many critics of TJ highlight, TJ is also seen as an imperialistic model from the West, imposed on the non-Western world. For instance, many critics underscore that TJ is used as a tool to propagate liberal democracy. Furthermore, there is the image of savage-savior used to described the TJ practice, ⁵⁰ which is also the main metaphor employed to describe how human rights movement is an imperialistic ideology. ⁵¹ There is even an accusation of labeling involved the TJ practice, ⁵² which is also one of the critiques against human rights implementation through humanitarian intervention. ⁵³

These few similarities justify this attempt to see what can be the contribution of the domestication of human rights to dealing with the above criticisms. Now, the domestication of human rights is built on the assumption that the effectiveness of human rights practice depends on the coordinated action of local non-state actors integrated in a web of actors – six in total: beneficiaries, local non-state actors, state and mixed institutions, international non-states actors, regional bodies, and international community. The main actors in this practice are beneficiaries of human rights practice and the local non-state actors. Moreover, it is based on the belief that the effectiveness of human rights practice is to be evaluated on the local level because that is where the need of human rights arises in the first place. Therefore, the domestication of human rights is based on local practices of human rights, and it builds human rights understanding on how human rights are locally used to challenge certain practices that violate them.

By beneficiaries, I understand the individual or group of individuals who invoke human rights to resist human rights violations inflicted on them. They represent the reason why human rights discourse is appealed to. Beneficiaries are not first engaged in discursive justification of human rights; rather, they choose the right or category of rights that are relevant to their context, without rejecting the rest. From this point of view, beneficiaries are active actors who use human rights discourse to call into question structures that violate their rights and resist any threat to their dignity. In An-Na’im’s words, ‘the beneficiaries of human rights standards themselves assume the primary responsibility for protecting their own rights, whether against the state, or by inducing it to support them against some external actors or conditions causing the human rights violations’. ⁵⁴ In this sense, human rights play a role of empowering them; they avail new means that might not have been there to be used by those who are in situation of oppression and injustice.

Another category in this web of actors is that of local non-states actors. These can be individual activists or local nongovernmental organizations (NGOs). Although they are diverse both in nature and in background, and are interested in various areas of human rights, they share the intermediary position between the beneficiaries and the state’s officials, and they play the mediating role between the beneficiaries and other actors of the network. Being well familiar with human rights instruments, these local non-state actors are really the engine of the whole practice, because they are the translator of international human rights norms into local language and symbols, so that local beneficiaries can understand them. In the reverse movement, they bring the local concerns to the international scene. As Sally Merry notes, they ‘are intermediaries who translate global ideas into local situations and retranslate local ideas into global frameworks’. ⁵⁵ This translation is both literal and metaphorical. On the one hand, it is literal because most of human rights instruments are written in foreign languages that need to be translated into local ones. On the other hand, though, it is a metaphorical translation because they have to find symbols and ways to bring these instruments to the local people so that they see their relevance to their particular cases. As again Merry observes, ‘those occupying the middle are no longer the village headmen of colonial indirect rule but activists providing service and advocacy to local communities’. ⁵⁶

Most importantly, their work is not a disinterested one, because usually, they themselves share with the beneficiaries the same concern about human rights protection either directly – as a member of the beneficiaries – or indirectly – as one who has gone through similar experience or is committed the cause of the beneficiaries. In any case, they are part of the sociopolitical context in which human rights are being violated. That is why they are the designated target of state’s harassment which can even cost them their life, for they challenge the official narrative on human rights and they claim a share in the public sphere that the state would want to monopolize. Through their worldwide network, they can mount pressure from outside against an actual threat against human rights, in addition to the work of mobilization at home. That is why for Keck and Sikkink, ‘because domestic human rights NGOs are a crucial link in the network, where these groups are absent…international human rights work is severely hampered’. ⁵⁷ It is not only the international work that is affected; it is the whole human rights enterprise that suffers from the lack of local non-state actors. That is why they are the cornerstone of human rights practice.

The category of states and some mixed institutions is about the role played by the state and the institutions such as the Independent National Commissions of Human Rights (INCHR). Concerning the role of the state in the human rights practice, it can hardly be overstated. States are the key players in international politics, and they are the ones legally capable of creating international human rights law. That is why, from the international law vantage, states are the primary responsible for human rights protection, since they are the ones who sign and ratify treaties. Moreover, some rights can only be discharged by states as sole legitimate organ to dispose and use military power. As to the so-called Independent National Human Rights Commissions, they are mixed institutions because they are usually created by and depend on state for their financing, and yet they are called to play a neutral role between state and civil society. That situation complicates their work and their result is not always easy to appreciate, but they are part of the human rights practice. ⁵⁸

Then come the regional organizations which have become a major actor in the protection of human rights. ⁵⁹ These are the organizations made of states, with different sizes and for different goals. I distinguish them from international community as I show bellow. Although most of the time human rights are included in regional documents for instrumental reasons, human rights practice benefits from these organizations as the respect of human rights becomes a means to achieve the organizations’ end.

The fifth category is that of international non-states actors, constituted by international activists and international NGOs. Like the local non-state actors, these have different interests and approach human rights from different perspectives, but they all share the concern for human rights effectiveness.

Finally, there is the international community. As said earlier, by international community I understand the institutions created by states with international goal, for instance, UN institutions or International Financial institutions. Since we are concerned with human rights, international community here would include all such institutions that are concerned with, or whose work affects human rights practice.

The domestication of human rights through translation happens then when international norms are literally and metaphorically translated into local situations. At the same time though, these international norms are transformed by this experience of translation into new contexts. That is why it is sometimes called ‘vernacularization’ understood as ‘a process of reception and transformation, a dialectic in which transnational conceptions are made meaningful within – rejected on the basis of local realities’. ⁶⁰

As already underlined, the key actors in this process of domestication are local non-state actors who use these newly translated norms to confront the threat to human rights. At the national level, their main interlocutor is the state. But depending on cases – for instance, when the state is involved in human rights violation – they move to regional and international levels, appealing to different actors who can help to address the situation at hand.

Thus, the domestication of human rights is more than just vernacularization because not only is it concerned with the implementation of international norms but it also produces them, giving them new meaning and new justifications. At the same time, local contexts are transformed by the introduction of new norms which can challenge the existing normative scale.

Viewed from the combination of the different actors, human rights domestication operates at three levels to generate its influence: national, regional, and international. These three levels work in a subsidiary manner, that is, it first looks for solutions from local/national level, before moving to the regional one. It makes such a move only when the inferior level fails to produce the expected result. The national level combines the beneficiaries, the local non-state actors, and the state and mixed institutions. Since these are the main actors involved in the practices of human rights at the national level, they are to cooperate in their work to fight any threat against human rights. If they are unable or unwilling to address the situation, the case can then be brought to the regional level, where the regional bodies, local non-states actors of the countries members of the regional organizations, as well as the international non-state actors can combine their effort to solve the problem. If the case is still not solved at the regional level, then it can be carried to the international stage, where international organizations, international non-state actors, and local non-state actors of different states take over the case, either directly or through the regional organizations mediation.

That is, in short, the process of domestication of human rights through translation and its different actors and different levels of intervention. ⁶¹ Can it bring any contribution to answering the critiques against TJ? The next section looks at that question.

IV A contribution from the domesticating human rights model to TJ

To start with, it is with no surprise that human rights are related to TJ, since as the definition itself shows, ⁶² TJ emerged from the will to redress gross human rights violations. As Paige Arthur writes, TJ ‘reshaped human rights’. ⁶³ I have also underscored how similar are the critiques addressed to both human rights movement and the TJ practice. However, there are also differences between the two. Arthur notes that while

the human rights movement has built its practical activity around advancing and defending norms, particularly at the international level, the field of transitional justice has also taken on this task of norm ‘entrepreneurship’, but has added the burden of trying to systematize knowledge about cause-and-effect relationships between justice measures and transitions. ⁶⁴

These dissimilarities might lead one to think that there cannot be a contribution from human rights movement to the TJ practice. Nonetheless, by the very fact that TJ is concerned with addressing human rights violations, it might learn from human rights practices, especially when the same critiques are expressed toward both practices. It is, therefore, on this assumption that I propose to use the domestication of human rights theory to contribute to answering the critiques raised against TJ.

As noted in the first section, the main critique of TJ is that it is too legalistic, following the Western liberal model of individual accountability. While this retributive justice was the dominant paradigm in the beginning of TJ, that legalistic feature was corrected by incorporating the restorative dimension through TRCs. ⁶⁷ This new dimension has the objective of dealing with the past through truth-telling, believing that the latter contributes to individual healing and social reconciliation. These objectives, however, have also been seen as unachievable because of the complexity of the understanding of truth itself and its healing finality. ⁶⁸ Moreover, even at this level, TRCs are conceived as if they are immune from political interests, and yet all of them are created by a political will with a mandate, which puts limit to what can be said and who can be heard. Many scholars, for instance, show how TRCs are not conducive to expressing sexual violence against women. ⁶⁹ Others criticize TRCs for leaning heavily toward peace and reconciliation at the expense of justice. Thus, they urge TRCs to serve retributive justice. ⁷⁰ On the top of these, there is the outcry that TJ is a tool for advancing liberal democracy and that it relies on the dichotomy between victim and perpetrator, without taking into account political and social context.

Confronting these critiques, many have called for contextualization and local ownership of the TJ processes. For instance, Lundy and McGovern argue that ‘simply involving local people at the implementation state of these initiatives is not enough. For a fully participatory process…they should also take part at every state in the process; including conception, design, decision making, and management’. ⁷¹ It is the same plea from the AU, which estates that ‘it is important for a country’s transitional justice policy to be locally owned and based on extensive public consultations with all interested actors’. ⁷² As for the UNSC, the international community has ‘learned that effective and sustainable approaches begin with a thorough analysis of national needs and capacities, mobilizing to the extent possible expertise resident in the country’. ⁷³ Thomas Hansen, on his part, advocates for a TJ model that is nationally conceived. ⁷⁴

All these arguments for local ownership and agency in TJ process are laudable and are shared by the domestication of human rights model. However, they share with the legalistic dominance the same overconfidence in the mechanism. They seem not to doubt about the outcome of that ownership for bringing about peace and justice. As Andrieu rightly observes, ‘the common sense assumption is that the local is good, and the global is necessarily oppressive and colonial’. She continues, ‘but just because a mechanism is informal and indigenous does not entail that it has legitimacy for everyone on the ground’. ⁷⁵ Andrieu’s nuanced position vis-à-vis local initiatives is confirmed by the analysis of local cases, for instance, by Hourmat in case of Rwanda ⁷⁶ and David Taylor in case of Burundi, ⁷⁷ confirming what Charles Villa-Vicencio has observed that ‘it is important to acknowledge that political elites in Africa and elsewhere often seek to manipulate both international institutions and local practices to their own advantage or that of their cronies’. ⁷⁸ In other words, local processes as well as international contributions have to be under the same scrutiny to improve the TJ process. That is where, I believe, domestication of human rights theory would be a contribution.

Hence, the first step for TJ to deal with these critiques is to be modest and realist in setting its goals. Political and social backgrounds to every conflict being so diverse, TJ should not be so sure that it has recipe that could apply to every emerging case. Furthermore, the end of conflict requires deeper social changes that cannot be achieved through punctual mechanisms such as TJ’s ones. As Matangai Sirleaf observes, ‘it is imperative that scholars and practitioners be more humble about the ability of these legal institutions to achieve the desired objectives’. ⁷⁹ This humility is not recommended for the legal institutions only, but for the whole TJ process, in order not to raise expectations that cannot be met. Fortunately, the international community has started to acknowledge it. For instance, the office of human rights high commissioner remarks that, while it is important to be alert to the economic, social, and cultural rights in the TJ process, ‘its potential to effect lasting changes in society should not be overestimated’. It continues, ‘even if transitional justice mechanisms deal with root causes and violations of economic, social and cultural rights, their contribution to social change will continue to be modest though important’. ⁸⁰

This kind of modesty would lead TJ to be open to different initiatives and to taking them as a learning process experiment, where stakeholders use different tools, some already experienced in other places, other completely new, depending on whether they are helpful to moving toward a more stable society. From that point of view, each particular case of post-conflict society would emerge as new, and all involved in the transitional process would be aware of their limitedness; hence, they would be ready to learn from this new experience. Neither local actors nor the international community would come with ready-made solution to fix the conflict. Having no privileged mechanisms, they would learn together which process should have priority, which combination of mechanisms should be put into place, and what goals should be set in short and long terms. In such context, it is obvious that the local stakeholders would have to take responsibility of their destiny, and ‘the role of the United Nations and the international community should be solidarity, not substitution’. ⁸¹

This active local agency open to correction and learning would be one of the contributions of the domestication of human rights model. Indeed, as we saw, that model strongly insists on the leadership role played by beneficiaries of international norms and local non-state actors, in adopting human rights norms to resist human rights violation in their context. On the other side, however, these new norms bring a new normative language that was not familiar to the beneficiaries. There is contestation and confrontation between two normative schemes through which a new normative attitude is forged. Local stakeholders in human rights practice have to be open to learning and not be fixed on one mechanism that would work throughout. The result of the battle is unpredictable.

Likewise, local stakeholders in TJ should be open to learning from different experiences, some of these being what TJ has already achieved through retributive, restorative, and reparative justice, without being fixed on these as if they were the only ways. They have to gauge them and apply what works better in their context in a creative way that invents new strategies and tries new initiatives. In a way, the suggestion here is to follow what Paul Ricoeur calls ‘practical wisdom’, that is, the capacity to judge in particular situation which universal norm applies the best, instead of sticking on the respect of the universal norm at all cost. ⁸²

Following this course would not only avert the liberal democracy as the only finality of TJ process but also would open new space for determining who are stakeholders, instead of assuming that there is a clear distinction of victim and perpetrator in every conflictual situation. For before even putting into action TJ process, there would be a need of an open discussion à la Habermas, where every affected person is granted a right to express his/her view about the necessity of and the kind of transition that should be put into place. Through such open discussion and deliberation, the goals of TJ itself would not be predetermined as it is alleged by the critics, to be the case in the actual TJ practice. Rather, they would be decided realistically according to what can be achieved by those participating in those discussions. Moreover, there would be possibility of revision and change in the case that what was adopted did not work, as the discussion and deliberation would not be fixed a mandate as are most of the TRCs currently. In that sense, instead of its institutional focus, ⁸³ TJ process would have the goal of ‘creating conditions for all sides to be heard’. ⁸⁴

From the domestication of human rights model, the national level would be the focus of the whole TJ practice and would follow the subsidiarity principle. As briefly elaborated in the second section, the subsidiarity principle requires that lower level be privileged before moving to the higher one. In the context of TJ process, it would mean that international community do not impose its norms on local initiatives until the latter have failed and only intervene when local stakeholders request them. Then, there would not be a move to the international stage before exhausting the regional resources in terms of mediation and helping local stakeholders to elaborate practical mechanisms to resolve their conflicts. In a way, it is already what ICC as a complementary court is doing, ⁸⁵ except that this subsidiarity principle would now characterize the whole TJ practice.

In the light of what proceeds, the three levels of influence used in the domestication of human rights model, working in a subsidiary manner and emphasizing the local agency open to learning, can offer a way to improving the TJ process, in way that would help TJ to overcome the different criticisms.

V Conclusion

This article started by looking at the development and the goals of TJ, which exposed many critiques raised against it. Thus, its purpose was to see whether the domestication of human rights model could contribute in responding, at least partly, to them. Hence, the first section elaborated five of these critiques – the teleological orientation of TJ to liberal democracy; the dominance of legalism in TJ practice, the imposition from outside, the tension between peace and justice, and the decontextualization – while the second point presented the domestication of human rights theory and the last point showed how the latter could contribute to answering the former.

From the discussion developed about the contribution of the domestication of human rights theory, it has been illustrated that most of these critiques would not arise if TJ learns from it. For instance, we showed that the finality of TJ would not first be to build liberal democratic institutions, but rather to open space for discussion where all affected persons would be heard. In that context, if a given society adopts the liberal model of democracy, it would be their particular choice and not the application of an imposed universal norm. Furthermore, it has been underlined that since the whole process rests on the local level, the dominance of legalism is abated and the imposition is avoided. As to the critique that TJ does not take into account political and social context, it is clear that the model is rather rooted in the local political and social context; therefore, the discussions and deliberations will have to bear on this background. Hence, the domestication of human rights model offers, as it were, a middle ground between the exaltation of the TJ local mechanisms – because it requires them to be open to learning from other experiences and the possibility of being supplemented by regional and international levels – and the imposition of international norms – since the latter would be adopted only if they are deemed relevant to the situation by the stakeholders who would themselves be determined through those discussions and deliberations in which every affected person has a right to participate and contribute.

The remaining critique about the tension between peace and justice is also partly resolved, although it still raises some concern. It is partly resolved because it comes back to the local actors to decide which value takes priority before the other. However, while in the ideal situation, the discussions and deliberations talked about are open to every affected person, the deconstructionists remind us that knowledge is power. Hence, there still is the risk of manipulation by the elite for political interests at the expense of justice. It is true that the model preconizes a reevaluation of the whole process, but that does not completely remove the whole risk of manipulation. To this worry, the domestication model does not have much more to offer than this openness of the process and the fact that TJ is a learning experience through which there is a hope that the stakeholders will rely on their capacity of being reasonable in the Rawlsian sense, that is, the capacity to reciprocity in argumentation and the willingness to accept a reasonable disagreement. These openness and reasonableness would help to prevent that political interests completely trump the imperatives of justice.

A consequence of this domesticating of human rights theory applied to the TJ should be, I submit, the distinction between the peace sought through TJ process which, as this article argues, would depend on the decision of stakeholders of a given post-conflict society, and the peace and security posited as the guiding principle of post 1945 international order. While the latter can enhance the former, TJ should keep its exceptional character, to avoid the overstated confidence in the existence of international norms that could apply to every TJ process. From this perspective, there should not be a so-called TJ global norm ⁸⁶ – since TJ is rather try and error experiment, varying from one situation to another – contrary to the cause of peace and security of the international community that has principles and norms that can be applied.

It is my conviction that this distinction would alleviate the heaviness attributed to the actual TJ process and hopefully make the process more effective in a realistic way. If that could be achieved, it wouldn’t be a small contribution from the domestication of human rights model to the TJ field.