Transitional justice: A colonizing field?

Source: (2012) Amsterdam Law Forum. 4(Summer):58-68.

Transitional justice, as a recent field of study, is in transition itself.’ Scholars are raising a number of contentious issues and it has become the subject of ongoing debates regarding how to best come to terms with the past in transitional societies. This usually involves, for instance, the creation of specific judicial institutions to carry out justice and hold individuals accountable in the aftermath of conflict or grave human rights violations. As noted by
Thomson and Nagy, the field of transitional justice has only recently started to pay attention to “more localized, traditional mechanisms as a corrective to the shortcomings of
internationalized, ‘one-size-fits-all’ approaches.” In this article, I contend that the transitional justice literature is defined by a Western, legalistic approach to justice, which
affects the field’s ability to account for indigenous and customary mechanisms of justice that
do not espouse this legalistic lens. I will discuss two things here. First, I will examine how
transitional justice scholars and practitioners favour the implementation and development of
certain institutions to the detriment of others in transitional societies. These institutions are
usually based on a neo-liberal democratic framework. This, in turn, leads to a discussion
about how this preference for particular institutions and mechanisms reveals latent
assumptions about the primacy of the rule of law. This article calls for caution in the blind
promotion of the rule of law. (excerpt)