Transitional Justice: Catalyst for revolutionary change?
In the newest installment in our special series on Transitional Justice and Historical Redress, Noha Aboueldahab, Assistant professor at Georgetown University in Qatar, examines how transitional justice has been mobilised in the Arab region as a means of resistance to colonial and neo-colonial injustices of the past and present.
Transitional justice has long sought to address the historical injustices that fuel ongoing social, economic, civil, and political grievances. It is, however, increasingly used to pursue a more revolutionary task: shaping the future through practices of resistance that simultaneously hold global south and global north perpetrators and enablers accountable.
The mass anti-government Arab uprisings of 2011, for instance, sought to uproot decades of structural injustices and authoritarian rule. Transitional justice in the Arab region and other parts of the global south employ resistance to colonial and neo-colonial injustices of the past and present as the driving force to help deliver on these revolutionary objectives.
Some of these efforts are conducted within contexts of ‘political transitions’, placing them within the theoretical and practical field of transitional justice. Strategic litigation and activist lawyering, especially through universal jurisdiction channels, have emerged as nascent practices that target global south and global north conspirators. In November 2021, for example, the Swedish public prosecutor charged the heads of oil company Lundin Energy for complicity in the perpetration of war crimes by the Sudanese army in South Sudan between 1999 and 2003. Lundin Energy executives asked the Sudanese government to secure an oilfield, which they allegedly knew would have to be secured by force, within a context involving a brutal civil war that killed thousands and displaced 200,000. Prosecutors filed a request for Lundin to pay $161.7 million because of the profits it made through its business operations in Sudan.
Banks and multi-national corporations have been and continue to be exposed for their complicity in propping up dictatorships and in the perpetration of crimes against humanity, as happened in Libya, Tunisia, Sudan, Syria, the Philippines, and other countries. There are also efforts to hold Western governments and arms exporters accountable for their complicity in war crimes and crimes against humanity, such as in Yemen and Egypt. Policymakers, politicians, civil society and ordinary citizens, however, are also actively demanding multi-layered reparations, including through grassroots and political movements.
The 2014 Caribbean Community’s Reparatory Justice Programme (CJRP) is an example of what transitional justice measures would look like in a context that continues to suffer the legacies of colonialism. Such calls for reparations and apologies sit uncomfortably with former colonial and pro-authoritarian powers and institutions, who have instead been expressing their regret and sorrow about the past without acknowledging their responsibility to repair it. African and Caribbean leaders expressed their frustrations with then Prince Charles’ speech during the 26th meeting of the Commonwealth in June 2022, which stopped short of an apology and promises of reparatory justice.
The death of Queen Elizabeth II re-ignited serious discussions among some formerly colonized countries, particularly in the Caribbean, about reparations, apologies, and detachment from the British monarchy. Following Barbados’s removal of Queen Elizabeth as its head of state in November 2021, several other Caribbean states have signaled they will hold referendums to decide on whether they should do the same.
But aside from these important developments tied to the transition within the British monarchy, developments concerning the Arab region provide further examples of how transitional justice is used as a tool of resistance to the oppressive past, present and future by placing both state authoritarianism and the role of its international allies (be they colonial or not) under scrutiny.
Actors in the Arab region and in its diasporas pursue these efforts on several transitional justice planes, including through the protection of historical narratives concerning victimhood and perpetration, as well as through truth-seeking and accountability initiatives. It is now well understood that the 2011 anti-government uprisings across the Arab region did not lead to ‘transitions’ to more peaceful societies in the short decade or so since. Important lessons nonetheless emerged from their violent aftermath.
Any transitional justice process that addresses historical injustices by compartmentalizing their temporalities, and by addressing state authoritarianism in isolation from its complicit foreign allies, will fail. To be effective, transitional justice must be pursued as an ongoing and evolving process that adapts to the developing context on the ground. But it must do so by addressing such developments in their historical context.
Actors in the Arab region and in its diasporas have thus been using documentation, universal jurisdiction, art, activism, and policy engagement to resist past and ongoing political and economic structural injustices with a view to transforming their future. Given the structural nature of these injustices, such efforts will necessarily draw attention to – and demand action on – historical injustices that dig deep into the past and whose legacies deeply impact the present and the future, if left unchanged.
But the responsibility for this past (and present) intertwines West and East, global south and global north. This is why it is difficult, if not impossible, to speak of an apolitical transitional justice process in such contexts of renewed authoritarianism, neocolonialism, and other forms of violence. Widespread and systematic corruption practices in the global south – especially in the financial sense – are often facilitated by banks, international financial institutions, and governments in the global north. As Ruben Carranza demonstrates, especially through the example of the Philippines, global south actors have sought – and in several ways succeeded – to make cracks in the legal structures that benefited Western economic actors who are complicit in crimes of dictatorships in the global south.
Transnational activism in the form of collaborations between domestic and international actors, especially in the civil society sphere, have also long served to advance accountability efforts for past atrocities in several parts of the world including Latin America and Africa. However, two crucial factors facilitated the success of these transnational efforts: political will and institutional capacities. In the current context of the Arab region, neither of these crucial factors are in abundance.
Despite this state of affairs, resistance to the oppressive post-colonial state and to its international allies remains central to transitional justice practices in the Arab region and unfolds in various ways. As I have argued elsewhere, transitional justice in the Arab region is both inward and outward looking: it targets the post-colonial authoritarian state and its external enablers simultaneously. At the same time, the lawyers, human rights activists, civil society professionals, and activist intellectuals who engage in these practices of resistance in the Arab region form strong alliances with external, mostly non-state, actors in their pursuit of justice-seeking efforts. The target point around which their engagement centres is important: global south and global north complicity in and perpetration of civil, political, economic, and social crimes.
Societies reeling from violence and injustice engage in forms of anti-colonial and anti-authoritarian resistance anchored in transitional justice processes that link past, present and future. In this sense, transitional justice is practiced as a form of resistance, rather than a mechanism that has a definitive end. Colonial and authoritarian powers politicize time and temporality by only going so far as to acknowledge their role in the violent past (though of course this is not always the case), while steering clear of commitments to repair the harms it caused. This refusal to apologize and repair further entrenches resistance and the transitional justice processes that help propel it.
As Hugo van der Merwe and M. Brinton Lykes argue, ensuring meaningful and impactful transitional justice requires us “to demand that advocates, researchers and activists situate their work within a longer-term framework – and embrace their work as longer-term teachers and agents of transformation.”
When viewed as a tool of resistance to colonial and post-colonial authoritarian rule, transitional justice can be an effective channel that links the past with the present and the future. Reparations are one example of policies that can be put in place to reckon with the past in a way that seeks to ensure its violent legacies cease to shape the future. But this battle is fought on multiple fronts that constitute “site[s] of political, legal and cultural struggle.” Given these developments concerning justice-seeking efforts across the Arab region and other parts of the global south, transitional justice could emerge as a catalyst for revolutionary change.
Author
Noha Aboueldahab is Assistant Professor at Georgetown University in Qatar, where she teaches international law. She is also Senior Nonresident Fellow at the Middle East Council on Global Affairs and Co-Chair of the Transitional Justice and Rule of Law Interest Group at the American Society of International Law. Her forthcoming book examines the role of Arab diasporas in international law and transitional justice.
Transitional Justice & Historical Redress
This article is part of the special series Transitional Justice & Historical Series, a project born of a joint collaboration between the Leuven Institute of Criminology and Avocats Sans Frontières.
