Home Law Transitional Justice in the Asia-Pacific
Top-down versus Bottom-up
With the global expansion of transitional justice marked, most notably, by the establishment of the ICC in 2002, came a further set of debates about whether transitional justice ought to be directed or imposed from above, or whether it should be encouraged to emerge from the grass-roots. As more and more countries have come to adopt transitional justice mechanisms, so too have international organizations increasingly adopted and promoted transitional justice as one of their policy goals. For example, new international nongovernmental organizations, such as the International Center for Transitional Justice (ICTJ), have emerged, while older NGOs, such as Amnesty International and Human Rights Watch, have begun to frame much of their work in terms of transitional justice. In 2004, the United Nations secretary general issued a report on the rule of law and transitional justice in conflict and post-conflict societies, thus officially launching transitional justice as a policy tool to promote and protect human rights.53 Although the UN clearly states that it tries to avoid imposing a ‘one-size-fits-all’ approach, the UN Office of the High
Commissioner for Human Rights (OHCHR) and the United Nations Development Program have, in conjunction with the ICC and donor states, started to standardize the practice and demand the acceptance of fixed norms and practices in transitional and post-conflict countries. Transitional justice has thus become something that is ‘normal, institutionalized, and mainstreamed’, and transitional and post-conflict states are now ‘expected, encouraged, or even coerced’ to adopt transitional justice by ‘the international justice industry.’ As recent works suggest, the impact of the top-down imposition of criminal tribunals and truth commission is already beginning to be felt in places such as Sierra Leone, Rwanda, East Timor, and Cambodia.
At the same time, in places like East Timor, Rwanda, and Northern Uganda, local leaders, often supported by international activists, began to promote the use of traditional, customary, and indigenous justice measures to address past atrocities. Proponents of these types of bottom-up approaches have argued:
However well-intentioned, transitional justice needs to more deeply grapple with the messiness of global and transnational involvements and the local, on-the-ground realities with which they intersect, complexities that are too often glossed over, due in part to the privileging of a cluster of liberal normative goods, such as the rule of law, peace, reconciliation, civil society, human rights, combating impunity, and justice.
Thus international efforts are often referred to as transitional justice ‘from above’ and posed as being in opposition to the efforts made by ‘grass-roots actors.’
Debate about the relative merits of top-down versus bottom-up or international and state-led versus civil society-led accountability processes resonates strongly with similar debates about liberal-international versus local peace-building approaches. In large part this is a function of the blurring of practical and, now scholarly, distinctions between transitional justice and peace building. In accordance with its antecedents in peace management and peacekeeping, the practice of peace building tends toward state-oriented, top-down processes. Perjoratively termed the ‘liberal peace’ by critics, this approach to peace building favors the promotion of democracy and the establishment of a liberal market economy as the means of attaining self-sustaining peace. Within this frame, the optimal functioning of the rule of law is conceived as a key component of democracy and, as such, a strengthened criminal justice system (or, failing that, an international criminal tribunal) is viewed as the best place to pursue accountability for human rights violations.
In recent years, however, scholars from within the critical theory tradition have, as is their modus operandi, criticized the ‘creeping neoimperialist tendencies of peace promoted by hegemonic forces.’ That is, they have opposed the imposition of Western liberal approaches to peace building on non-Western societies and the apparent marginalization of local, indigenous processes that have accompanied them. Embedded within these critiques is the assumption that marginalized local forms of justice are inherently ‘good’ and thus deserving of protection against the ‘bad’ imperialist justice imposed by intervening forces. However, just as MacGinty cautions us against the tendency to ‘romanticize’ indigenous and traditional approaches and to assume that they are ‘“good” or [of] higher normative value’, so too we must avoid automatically demonizing the liberal approach. Both have strengths, and both are susceptible to criticism, based not on ideology but on evidence of the justice outcomes they produce.
In recognition of this and in response to recent practice, some scholars have begun to discuss the emergence of ‘liberal-local hybrid’ forms of peace building. Also termed ‘post-liberal’ peace, liberal-local hybridity ‘represents a transmutation of both the liberal and the local’ whereby the two approaches ‘meet each other on the ground, react and modify each other.’ Where justice is concerned the assumption inherent in the very notion of a ‘liberal-local hybrid’ approach is that both liberal international and local forms of justice will be transformed by their interactions with one another - that is, that a symbiotic relationship exists between state- led and civil society transitional justice projects.
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