A TIME FOR JUST RECKONING? TEMPORALITY, LAW, AND TRANSITIONAL JUSTICE IN CHANGING SOCIETIES.

• Author: Emeziem, Cosmas

Table of Contents INTRODUCTION 67 I. TEMPORALITY IN TRANSITIONAL JUSTICE 85 A. Tracing the Roots 85 B. Typical Temporality Issues in Transitional Justice 87 C. Communities and their Temporality Contexts 90 II. OVERCOMING THE HURDLES 94 A. Imaginative Transplant of Transitional Justice Mechanisms 95 B. Cycles of Independent/Autonomous Review Systems 96 C. The Use of Indicators 96 III. THE PEFORMANCE OF DIALOGUES 97 A. Dialogues at the Institutional Level 98 B. Dialogues at the Community Level 99 C. Dialogues at the Individual Level 101 CONCLUSION 103 INTRODUCTION

When is it apt to implement a transitional justice process? What temporal considerations can impact transitional justice processes? If a country such as Spain, (1) Australia, (2) or Canada (3) decides to embark on a transitional justice program, what timeline should the program? What factors would determine the choice? In the larger epistemological (4) foundations of transitional justice, what informs the near avoidance of colonial and settler-colonial (5) (6) human rights violations in transitional justice efforts in mature democracies? (7) (8)These and several other related questions are relevant puzzles in transitional justice. A meaningful answer to these questions is crucial for any serious attempt to reckon with mass violations of human rights through a transitional justice process. As the call (9) for just reckoning becomes more strident, and the transitional justice canon assumes more prominence in the field, there is a need to interrogate the temporal dimensions of just reckoning processes. It is timely to do so, and avoiding it will only weaken, the transitional justice canon.

This article is divided into five parts (I, II, III, IV, and V). Part I captures the background, and sets the stage for the discourse on time, in transitional justice processes. It identifies the scholarly gap as it currently exists in the field of transitional justice, and thus, sets the agenda for the entire work. Part II unpacks the basic concept of temporality, and its relationship to law, and society in transitional justice. It explains how transitional justice processes are essentially surrounded by temporal contexts, and why this phenomenon should engender a deeper analysis by scholars in the field. It notes how these temporal contexts can be dispositive, in determining the framing, processes, means, and potential outcomes of transitional justice measures. In other words, the temporal contexts, and consideration of mechanisms in different communities can create complex situations. Scholars and policymakers should be aware of these potentially complex situations, and anticipate them in designing, and implementing transitional justice programs. That way, the complications can be avoided or mitigated--were they to be impossible to avoid.

Part III discusses the ways of overcoming some of the complexities that may inhere in transitional justice programs in different societies. Precisely, this section will try to pre-equip scholars and policy makers with the tools to overcome potentially complex temporal hurdles in transitional justice settings. Part IV highlights the value of carefully calibrated and organized forms of dialogues, as critical to any effort at definitively settling questions of temporal challenges in transitional justice. It affirms the indispensability of dialogue in the human societies as the basis of democratic transformation and just reckoning. Part V concludes with suggestions for legal development in the field. Hopefully, this work will set up a scholarly agenda for all persons, and institutions, interested in the field of transitional justice. The discussion contributes to making transitional justice a more efficient framework for deepening democracy, and the protection of human rights, rule of law, and overall community peace and harmony in changing societies. The importance of this investigation, and articulation of the temporal dimensions of transitional justice is hinged on four solid foundations. First is the universality of justice and human rights. All human beings are endowed with human rights and are entitled to justice for any violation of these rights. Second, it contributes towards overcoming the politics of transitional justice cannon. In other words, it helps scholars to understand the privileging of certain underpinning ideas--such as what societies should implement transitional justice programs--about the subfield. Third, it responds to the current pivot towards international law history. The historical look at international law helps us have a view of the timelines and ideas such as sovereignty, and equality and how these have informed the lives of different communities within nation states. Finally, it helps society to recognize places and spaces for societal reflection and just reckoning. Spaces of violence could be physical and epistemic. It is physical when for instance we are looking at concentration camps, lynching grounds, torture chambers, and such other spaces. It could be epistemic when we are considering erasure, or convenient forgetfulness of such subjects in the cannon of legal studies and transitional justice. This is significantly so in the prevailing international law cannon, which circumscribes transitional justice as merely a post-conflict or post-authoritarian justice. (10)

As to the universality of justice and human rights, it is now trite that human rights have neither geographical nor sovereign boundaries. The Universal Declaration of Human Rights (UDHR) notes that "all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." (11) In the same vein, the canon of transitional justice makes universal claims about global humanity, justice, and general accountability for human rights violations. (12) The status of the violators is immaterial to accountability. (13) Transitional justice claims universal jurisdiction (14) and the responsibility (15) of states to investigate, prosecute and punish acts of human rights violations even in times of war, amongst other things. (16) That being the case, the epistemic foundations of transitional justice must transcend political and economic divides--within nation states and internationally. (17) There is therefore a need to make the canon of transitional justice more robust and less preoccupied with post conflict situations. The further case for a more robust use of transitional justice as expressed above is because beyond post conflict situations, there are transitional justice possibilities and necessities in many states around the world. These states are not necessarily post-conflict in nature, but they have difficult social, political, and economic issues that could benefit from a carefully implemented transitional justice process. (18) For example, the systemic exclusion of indigenous communities is an ongoing reality in many otherwise stable democracies. This reality of exclusion is exemplified in the prevailing problems of social and environmental justice. (19) These situations, which do not have bright line authoritarian domination or post-conflict outlook, present critical challenges for experts and policy makers. Sometimes it makes it difficult to delineate the timelines of reckoning and answer some of the other complex questions of transitional justice. (20) The structures are also complicated because of the vested interests that these societies have created over time.

Beyond the universality of human rights, the politics (21) of international law has also led to a growing sense that transitional justice is increasingly conceived and implemented more in developing and less powerful states. (22) The use of the instrumentalities of transitional justice have become prevalent in nascent democracies--whether as criminal tribunals, (23) truth commissions, (24) hybrid courts, (25) memorials, (26) and such other mechanisms. At other times it looks at countries of Eastern Europe (27)--also emerging from the Soviet bloc--while carefully avoiding many other countries of the global North--implicated by colonial (28) human rights violations--such as Canada, the United States, France, (29) and Belgium. (30)

This delineation of both emerging democracies (31) and mature democracies reiterates the critique of international law as privileging the existing structures of international law as made by former empire states, though it professes the universality of frameworks and norms. (32) One example of this is the near total insulation of colonial violence from the interrogative lens of transitional justice. (33) Thus, a reckoning with this epistemology, and its externalities for global justice and human rights is critical and cannot be meaningfully done without reexamining the temporal dimensions of transitional justice and the norms that underpin them. (34) These norms (or lack thereof) underpinning temporality are essential in developing transitional justice that is responsive to the justice needs of the 21st century international society.35

Remarkably too, transitional justice responds to the increased pivot by international law to history (36) as a crucial lens through which humankind can understand the nature and evolution of international human rights and its different iterations and intersections. (37) This is further hinged on the truism that time gives meaning and bearing to history and the entire course of human encounters. It is one paradigm for gazing into the remote while imagining the multifaceted future. That history also reveals the participants, collaborators, and corporations with significant roles in historical violations of human rights. For instance, recent litigations about the role of Japanese corporations in the violation of human rights during World War II draws attention to the unanswered questions of just reckoning despite the...