Interesting times: Transitional justice in the Era of Putin, Xi and Trump 2.0

Abstract

Transitional justice (TJ) emerged during the consolidation of the liberal international order (the LIO). It was deemed to flow from, and contribute to, the emergence of democracy, human rights and the rule of law in post-authoritarian and post-conflict states. The LIO generated material and discursive support for processes of accountability, truth, repair and guarantees of non-repetition. The LIO is now widely perceived to be under significant threat with the rise of authoritarian states (most notably China and a revanchist Russia) and the erosion of liberal democratic values in the US and Europe. Some worry that TJ may have peaked and is doomed to decline in this more challenging ecology. This article is an attempt to show how the material and discursive environments of TJ have altered with the decline of the LIO and the rise of a multipolar world. In material terms, there are fewer democratic transitions that might facilitate the type of state-level rule of law or rights-promoting impact associated with accountability, truth or reparation processes, while liberal peacebuilding is now far less premised on democratisation and human rights that post-conflict TJ processes built upon. In a world where authoritarian rejections of human rights and the rule of law meet widespread support and where a chastened liberal West resiles from effectively exporting or supporting norms like TJ, there is also a lowering of the argumentative burden for those who want to outright defy, water down or find workarounds for TJ.

Introduction

The meaning of even the most embedded norm is never fixed. Because their intersubjective nature means that they require interpretation, norms are inherently dynamic and contested, ¹ a reality compounded by the fact that state interests and power mutate over time. ² The scope for change is limitless. The substantive content of a norm can change, as may its formality, specificity and authoritativeness. ³ Change can be formal or informal; it may strengthen or weaken the norm. Norms evolve in response to two types of stimuli. The first is internal debates over the meaning of the norm. The second is the impact of external factors that affect the normative environment, most notably global power structures and state preferences. ⁴

Transitional justice (TJ) is best understood as a cluster of normative standards that inform the authoritative, intersubjective expectations of what are appropriate response to past systemic human rights violations in states going through processes of political change. These expectations are manifested in a number of mechanisms (trials, truth commissions, reparations and guarantees of non-recurrence) and values (victim centricity, participation, accountability). In the thirty years since it was first theorised, it has been characterised by persistent internal norm change via ongoing cycles of idealism and realism, critique and counter-critique, and endless contestation over boundaries and core concepts. Mutation and adaptation have been relentless. TJ shifted from domestic amnesty debates to international law norms and back to a local ‘turn;’ from post-authoritarian transition to post-conflict peacebuilding to settler colonialism; from state centred to victim centred; from universalist to pluralist. Debates have evolved from binary impunity versus accountability and truth versus justice dilemmas to ever-more holistic models that incorporate many mechanisms. Even though the agenda has broadened to take account of issues like gender, environmental and economic injustice as a result of these internal critiques, the assumed linkage from TJ to democracy, civil political rights and rule of law has always been a core animating purpose for international funders and domestic reform constituencies. In this sense, TJ has always been infused with the normative impulses of the Liberal International Order (LIO) towards institutionalised multilateralism, human rights, the rule of law and democracy. Indeed, since its inception, TJ has a ‘blue chip’ stock in the liberal political futures market. ⁵ Even critiques of TJ (as a Western imposition, as overly legalistic, as insufficiently unconcerned with economic justice) take the fully functioning LIO as a starting point.

Today, we live in a political landscape strikingly different from that which birthed and sustained TJ. Key components of the LIO are now being attacked. There is a rising authoritarian challenge, pioneered by the Russia of Putin and the China of Xi, to challenge human rights, the rule of law and multilateralism. This challenge is compounded by lack of resistance to this (and sometimes outright complicity in it) by populist, anti-globalist and nationalist sentiments at the apex of domestic politics in the liberal core of the United States of Trump 2.0, Europe and Latin America. ⁶ It has become commonplace to refer to the ‘end of the liberal international order’, ⁷ the ‘great unravelling of the international system’ and the ‘deepest crisis’ of the UN Charter-based order. ⁸ Given that normative ideas tend to reflect the world order that gives rise to them, ‘the LIO’s ostensible decline … raises questions over norm dynamics in this emerging era.’ ⁹ This post-liberal or multipolar world generates distinct challenges for TJ. Contestation, heretofore primarily internal or intra-paradigm, may now become external. Contestation, heretofore an enriching and expanding aspect of the TJ norm, may now become disruptive and narrowing.

Since at least the double whammy of Trump and Brexit in 2016, there has been a discernibly accelerating shift from ordinary contestation of a relatively homogenous liberal legal order (the scope, applicability or interpretation of given norms) to disruptive ‘deep’ contestation in a more heterogeneous legal order that queries fundamental aspects of the former. ¹⁰ If international law is no longer the paramount language for limning the contours of rightful action for states in the international community, then this is obviously problematic for a field rooted in soft law like TJ. States, including those where transitional justice might ordinarily take place, ‘are highly attuned to shifts in the content and strength of relevant international norms,’ and ‘can draw on their readings of the normative landscape to resist pressures to comply with a norm.’ ¹¹ The nature of decisions about TJ has always revolved around reconciling the principled with the political, but the legitimacy of these principles is queried as never before, while the surrounding global politics have changed. Non-compliance and challenges to validity, while never entirely absent in TJ’s history, may increase in frequency and change in terms of expression.

There has been some concern in the TJ literature. Some worry whether ‘a lack of transitional justice [is] inevitable in this more troubled world of inevitable democratic breakdown’. ¹² Others note the distinct possibility in this historical moment that TJ, like human rights, ‘is unraveling.’ ¹³ The editors of the International Journal of Transitional Justice observe that the phenomenon of ‘democratic backsliding’, even in states like South Africa, Guatemala and Hungary that were TJ trailblazers, calls aspects of its core purpose into question. ¹⁴ These fears, while credible, are unhelpfully generalised. TJ theory has yet to adjust to the challenge from increased authoritarianism at a time when there are fundamental shifts in the scholarly agenda in analogous fields buffeted by these changes. ¹⁵ Processes of dramatic change are difficult to anticipate and observe, much less influence. However, changes at the global level and the travails of Western democracies constitute an occasion for self-reflection.

The continuity and salience of TJ as a global or national policy option cannot be taken for granted. Nevertheless, little can be stated with confidence. Contestation, after all, can strengthen a norm by fostering dialogue or erode it by undermining its validity. It is difficult to grasp the long-term effects of macro-level change in the international order, particularly when we do not know if we are at the start, middle or end of it. TJ norms might prove robust and resilient, but might also degenerate on a spectrum anywhere from rapid to incremental. Recognising this uncertainty is important as a prelude to grappling with the extent to which TJ theory and practice might need to be re-examined, given these developments, which this article sets out to do. What follows is an attempt to show how the material and discursive environments of TJ have altered. The argument here cannot be comprehensively substantiated – any exercise in generalising about the future is necessarily speculative, particularly bearing in mind TJ theory is applied with wild divergences at the state level due to political, economic and social conditions. However, it is argued that the material and discursive environments within which TJ is practiced have become much more inhospitable than they were in its heyday between the late 1980s and mid-2010s and may become more difficult still.

The ambition for this article is to offer some broad propositions about TJ in an embattled LIO, opening up a space for thinking through changes already in train. It begins by briefly outlining TJ’s role in the LIO of shared norms, principles and practices. The next section explores the reasons for the significant degradation of the LIO in the last decade. The next section outlines two material consequences of these global changes at the domestic level where TJ norms are applied. Firstly, the reality of global democratic decline means there will be fewer post-authoritarian transitions to meaningful democratisation. ¹⁶ If, as some argue, the macro-level goals of ‘societal transformation’ and establishing a stable and legitimate democratic polity should be the essential aim of TJ, ¹⁷ then the absence of most sociopolitical predicates for this raises obvious, potentially existential, questions for the field. Secondly, the nature of peacebuilding has fundamentally changed to become ‘illiberal, unstable and limited to working within the constraints of geopolitics’, ¹⁸ meaning that the potential for TJ in post-conflict states to foster social transformation or to legitimate an inclusive polity becomes somewhat limited. Sustained default compliance or semi-compliance with TJ becomes far less likely. The final section explores the discursive impact of the struggles of the LIO. It argues that TJ already endures significant difficulty in translating liberal TJ norms in genuinely paradigmatic ecologies of post-authoritarian and post-conflict states. In a world where authoritarian rejections of human rights and the rule of law meet widespread support and where a chastened liberal West resiles from effectively exporting or supporting norms like TJ, there is a lowering of the argumentative burden for those who want to outright defy, water down or find workarounds for TJ.

Transitional justice in the liberal international order

TJ is inseparable in time and ethos from the post-Cold War LIO. The apparent post-1989 eschewal of balance of power and mere coexistence in the international order foregrounded a cluster of liberal ideas about how both the world and the states in it should be governed. These included openness of trade and capital, rule-based multilateralism, security cooperation and liberal institutionalism at the global level and liberal democracy at the national level. ¹⁹ This liberal democratic model, an ‘End of History’ culmination of sociopolitical evolution, would enshrine human rights, elections, market capitalism and the rule of law as the grounding principles of domestic order. Democracy promotion became a key goal. As Latin America, Eastern Europe and Africa removed authoritarian leaders, the number of countries enjoying an episode of democratisation peaked between 1989 and 1992. ²⁰ Human rights also became the ‘lingua franca of global moral thought’. ²¹ It was a time of norm cascades, boomerangs and spirals, the high tide of the constructivist belief that liberal states could pressure and socialise non-liberal ones to improve their human rights performance, most notably those of a civil and political hue. ²² Furthermore, after the UN Secretary-General’s 1992’s Agenda for Peace, a liberal peacebuilding framework emerged which enshrined these same values in post-conflict states. ²³

This geopolitical liberalism, and the tutelary privileges that followed, were understood by supporters and critics as the product of US hegemony. That said, European states, Japan and former settler colonies like Australia, Canada and New Zealand also promoted liberal norms vigorously. The LIO self-presented as something that transcended Western interests to serve as a ‘general operating system for world politics’. ²⁴ Human-rights-related issues that had previously been considered to lie primarily within the state’s sovereign jurisdiction were subject to a rule-based liberalism, observed and critiqued by multilateral international organisations with authority beyond the nation-state. ²⁵ The intrusive and integrative effects of the LIO eroded sovereignty, seemingly ushering in a post-Westphalian era in international law. ²⁶

TJ in the discursive environment of the LIO

While the roots of TJ lie in domestic responses to authoritarian collapse in Latin America in the 1980s, it gained global policy traction (and was theorised as a distinct field) at a time when the LIO’s normative expectations sketched above were being exported and internalised. Insofar as it marked a dramatic departure from the usual impulse towards impunity and amnesia over past abuses, it reflected the post-Cold War move towards prescriptiveness over the treatment of individuals. TJ was understood as ‘as part of a project that can be implemented as part of the dissemination of liberal values’. ²⁷ It substantiated and harmonised with features of the LIO like democratisation, peacebuilding, human rights and the rule of law, enhancing its normativity as a justificatory framework for international organisations, donors and domestic actors. Domestic trials and international tribunals followed from an emerging global norm of anti-impunity. ²⁸ Truth commissions complemented the millennial ‘industry of memory’ across the world. ²⁹ TJ drew on customary law, treaties, decisions by international courts and pre-existing soft law to formulate norms like guarantees of non-recurrence, ‘shroud[ing] itself in a discourse of technocratic legalism’ that typified liberal hegemony. ³⁰

These principled beliefs that TJ was a moral good and a legal necessity were augmented by causal beliefs that linked TJ to the ends canvassed above (human rights, democracy and the rule of law), though the mix of principled maximalism and causal instrumentalism ends differed across many states. ³¹ While flowing from a democratising moment, TJ was mainstreamed by donors and multilateral organisations on the basis that it could also consolidate or stabilise that democracy. It would do this by fostering civil trust ³² and renewing a social contract within the terms of political liberalism. ³³ The rule of law would flow from TJ by publicly demonstrating rights-based limits on governmental authority through fair trial of the most politically contentious crimes. ³⁴ TJ likewise emerged as one of the liberal peacebuilding policy practices designed to create political order in post-conflict states insofar as it promoted human security, promoted reconciliation and helped reconstruct domestic infrastructure. ³⁵

In discursive terms, therefore, TJ emerged ‘as the site for addressing gross and systematic injustice with a view to transitioning to a more righteous future’. ³⁶ In so doing, it justified the international community’s decisions to override the hitherto decisive normative and legal commitments to non-intervention in relation to a state’s past treatment of its citizens. In keeping with the zeitgeist, it assumed narrowly liberal interpretations of human rights (i.e., civil political) and violence (direct physical harm), largely neglecting social justice and redistribution. In spite (or perhaps because) of this, TJ became a ‘global project’, a common sense normalised across the world system about how to work through past abuses. ³⁷

The discursive hegemony of the idea of transitional justice vis-à-vis past abuses was important because TJ is difficult to begin or sustain in domestic polities. There is no automatism for the new government to pursue accountability, truth or reparations, even if their moral desirability seems obvious. Historically, civil society actors have had to push the state hard to take any action. As Kaufman notes, doing nothing will often seem preferable to even the most legitimate of democratising or peacebuilding transitional governments because of TJ’s potential to jeopardise the transition by fuelling revanchism. ³⁸ It is for this reason that debates over accountability versus amnesty, truth versus justice and vetting versus administrative functionality roiled the earlier TJ debates. Trials are by far the most contentious option given the destabilising or revanchist potential of potential indictees. ³⁹ Likewise, there will always be powerful groups in society who resist truth processes, preferring instead the ‘ontological security’ that comes from reiterating and protecting a ‘good past’ over naming names and forms of historical revelation that might undermine the historical story a group tells about itself. ⁴⁰ Lustration and other Guarantees of Non-Recurrence (GNR) run the obvious risk of excluding the most qualified and necessary civil servants and security sector personnel at a time when the state is weakest, while fostering a destabilising resentment. ⁴¹

Notwithstanding these potential barriers to justice, the collective international normative impetus to meaningfully reckon with past abuse (which itself provided a potent vocabulary for civil society actors) often had a decisive impact on the domestic discursive environment. As Wiebelhaus-Brahm notes in relation to truth commissions, states may ‘feel pressure to comply with global norms due to a desire to be accepted as legitimate members of the international community’. ⁴² Even where unconvinced of the political feasibility of TJ, states were attracted by the idea of demonstrating their ‘buy-in’ to the logic of the LIO. Even if it manifested as grudging acquiescence or flagrantly inadequate processes, states could make a (potentially) costly signal that they were now ‘liberal’ and ‘civilised’, shedding past reputations as illiberal or backward, that outweighed the risks associated with TJ. ⁴³

TJ in the material environment of the LIO

To the political difficulty of TJ must also be added considerable material and technical hardships. Trials, truth commissions, reparations and GNRs are expensive for middle- and lower-income states. ⁴⁴ Pressure for these mechanisms typically comes at a time when the state is both at its weakest and has numerous other pressing sociopolitical objectives. As Unger notes, ‘the demand for justice is typically at or near its apex [when] the possibility of delivering justice is typically at or near its nadir’. ⁴⁵ The discursive impact of the international TJ norm is therefore inseparable from, and often overshadowed by, its material impact. This takes two forms, namely aid and technical assistance. The United States was a prominent donor to both trials and truth commissions. Motivated by a mix of symbolic, legalistic and strategic impulses, it saw in TJ a means of exerting soft power in the world, even if its ad hoc support never coalesced into a coherent policy. ⁴⁶ The EU’s policy likewise was ‘scattered and ad hoc’, but saw TJ as a reflection of a liberal foreign policy centred on norms and values instead of hard power. ⁴⁷

Aid: The LIO generated three main sources of aid to transitional justice: from state donors, multilateral organisations (most notably the United Nations [UN]) and INGOs (most notably the International Center for Transitional Justice and the now-dismantled United States Institute of Peace). ⁴⁸ State donors were among the most important. USAID, for example, funded the truth commissions in South Africa and Sierra Leone, as well as state and civil-society initiatives in Colombia. ⁴⁹ The EU supports international criminal tribunals as well as domestic prosecutions in states such as Peru and Haiti and truth processes in areas like Colombia, the Solomon Islands and Morocco. ⁵⁰ The fact that the West provides the most funding and institutional support for TJ creates justifiable anxiety about its potentially neocolonial aspect. ⁵¹ However, without it, national TJ initiatives might struggle. While some middle-income countries have achieved significant success in funding their own TJ initiatives (Colombia’s 2011 Victims Law being a case in point), ⁵² in transitional states that cannot meet their basic needs and/or need humanitarian support, compensation and reparations will often rely on international support. ⁵³ Financial assistance kept the TJ processes in low-income states like the DR Congo, Liberia, Timor-Leste and Uganda alive. ⁵⁴ Indeed, as Winston notes, there were states where the impetus for TJ came more from the outside than from endogenous demand. ⁵⁵

Technical assistance: TJ has been both commended and criticised for adopting a ‘toolkit’ or approach, one that ‘involves specifications for design, procedure and performance and draws on a selection of seemingly unambiguous international legal norms’. ⁵⁶ The technocratic observation of these processes, as found in official handbooks and practical guides from international organisations, ⁵⁷ is assumed by advocates to conduce to outcomes like accountability, reconciliation and social repair. Trials must observe due process, provide equality of arms, victim and witness protection and outreach. Lustration requires expert panels for systematic sifting of personnel to change public institutions from organs of repression to instruments of integrity. Truth commissions should have broad mandates, subpoena powers, access to archives and victim participation. There is a consensus that trials, truth commissions, GNRs and reparations (plus other aspects of TJ like conditional amnesty, indigenous justice processes, memorialisation, etc.) are complementary facets of a holistic, unitary agenda that cannot be traded off between one another. As Arthur notes, technical assistance from the international community is necessary because ‘specific expertise required to implement TJ according to international standards may not exist among national actors’. ⁵⁸ TJ, therefore, often manifests as projects designed and implemented by a consolidated transnational network of academic and professionalised experts from the West applying liberal norms. ⁵⁹ When not directly administering TJ processes, these actors build capacity, support civil society involvement and leverage support from the politically powerful. ⁶⁰

Twilight of the LIO?

The legitimacy, efficacy and applicability of TJ are clearly called into question by the scope and intensity of the ‘erosion of liberal hegemony’ since the 1990s and 2000s when the field was mainstreamed. ⁶¹ Contestation of the LIO is ‘deep’ insofar as opponents ‘target foundational elements of the Order’ and undermine the validity of its liberal core norms (democracy, human rights, free trade, etc.) and institutions. ⁶² Another aspect of the crisis comes from below, as critics assail the LIO’s role in systematically excluding and exploiting the Global South, to say nothing of the high-profile failures vis-à-vis climate change, immigration and, latterly, the Gaza and Iran crises. However, the bigger challenge is less the one from below than the one from autocracies. The autocratic challenge flows from structural transformations in the global order that have undone the historical circumstances that gave rise to liberal hegemony. Globalisation is clearly on the decline since COVID revised thinking about economic openness and supply chains, if not before. ⁶³ Many regimes existing outside, or semi-engaged with, the LIO do well in terms of development governance. If the LIO is mainly the product of Western power, then it is no surprise that the rise of non-Western powers has seen a discernible reduction in American and European influence over the evolution and outcomes of international law. ⁶⁴ Of course, there is no monolithic liberal West nor any monolithic autocratic order – clashes and divergences exist within each pole, between the US and Canada/EU, for example, or between China and an increasingly autocratic India. However, it is clear we live in a world where ‘larger, more populous, and more economically powerful countries drive much of the autocratization’ apparently now spreading – there are more autocracies than democracies in the world, with the lowest level of democratisation since 1985. ⁶⁵ Liberal democracies are now ‘the least common regime type in the world’, and many of these states are disimproving in terms of rule of law and legislative constraints. ⁶⁶ One corollary of the emergent divide is that multilateralism and multilateral treaty making have been stagnant for over a decade. ⁶⁷

Above all, China is attempting to build its own sphere of influence outside the LIO, one where the salience of liberal norms like democracy, free media and rule of law is reduced, seeking instead ‘to make the world safe for illiberalism and autocracy’. ⁶⁸ At the same time, it is expanding its influence at the UN, World Bank and IMF to a level commensurate with its size. ⁶⁹ China ‘sees the American insistence on a rule-based order as Western driven; exclusionary; flexible and perhaps evolutionary; unduly focused on internal behaviour and regime type; and driven by a shared value system among the States of the West’. ⁷⁰ Many Chinese international initiatives are aimed at undermining human rights and democracy as concepts. ⁷¹ Less potently, but no less seriously, Russia positions itself against what it calls ‘liberal imperialism’ at the global level. ⁷² Its invasion of Ukraine (and the lack of meaningful condemnation from China, India and much of the Global South) has been seen as a definitive degradation of the status of international law. ⁷³ Countries in the Global South join the Chinese and Russians in criticising the LIO as an oppressive order characterised by hypocrisy and exploitation, rejecting the idea that democracy must be a precondition of legitimate membership of the society of international states. ⁷⁴

These challenges are compounded by the two Trump presidencies, whose discursive and behavioural practices are cause, accelerator and consolidation of the challenge to the LIO that the United States formerly led. In his first and second presidencies, Trump has acted as a ‘hostile’ change agent. In general terms, he has replaced ‘law-based systems with a power-based system predicated on threats and promises rather than legal rules and processes’. ⁷⁵ His populist and isolationist disdain for international institutions is reflected in unilateralism, withdrawal from international organisations, trade wars and apparent tolerance of annexation. Most pertinently for this paper, Trump’s power-based unilateralism is explicitly sceptical about values like human rights, democracy and the rule of law, ⁷⁶ though TJ as a concept has yet to specifically attract the administration’s ire. Aid has been cut, most notably with the gutting of USAID, which has caused considerable uncertainty for ongoing or nascent processes like Colombia’s Special Jurisdiction for Peace and the Unit for the Search of Persons Deemed Missing. ⁷⁷ There is some evidence that since 2016, the EU has evinced a greater reluctance to ‘tell others what to do’, balancing principle with pragmatism to a greater degree than in the LIO’s heyday. ⁷⁸ The Western reluctance to underpin the LIO obviously creates opportunities for illiberal states to exert greater influence.

These difficulties are exacerbated by the fact that much of the West’s retreat from international liberalism comes from the rise of authoritarian populism and disruptive illiberalism domestically (Trump, of course, being a prime example) that undermines liberal institutions and liberal values like individual rights, democracy and free markets. Space precludes detailed exploration of these issues, many of which stem from persistent economic inequality and the insulation of neoliberal international economic policies from domestic democratic contestation. Of most salience to this paper is the reality that the contemporary international agenda is increasingly ‘by populist ideas, discourses, practices and performances’. ⁷⁹ The domestic shift in the West to economic nationalism, restrictive borders and isolationism erodes whatever legitimacy liberal interventionism of any stripe previously enjoyed and bolsters Westphalian sovereigntism. ⁸⁰

Amidst a decentralisation of power, liberal, semi-liberal and non-liberal visions compete across independent centres of power without any clear winner emerging. For the next decade at least, the LIO will be one order among many, albeit a powerful one if the United States recovers its will to lead. ⁸¹ In this more pluralist, Westphalian world, we already see thoroughgoing changes in political and legal discourse. One factor that unites Trump, Xi and Putin is the valorisation of sovereignty as a cardinal virtue of the international order, an issue area where they now act as norm entrepreneurs. ⁸² Whereas the LIO embraced the notion that humanity was the rightful foundation of state sovereignty, norms of tolerance of difference and non-intrusiveness are now reasserted to justify restrictive readings of liberal norms like TJ. ⁸³ While some fear we may see a ‘race to the bottom’ in terms of human rights and democracy, ⁸⁴ an equally likely outcome is a more negotiated and localised practice where any requirement or expectation of democracy as a teleology is weakened. The rest of this article explores the impact of this likelihood on TJ, both in material terms (the supply of those post-authoritarian and post-conflict transitions where TJ is assumed to have the greatest macropolitical impact) and in discursive terms (likely changes in the way justice is understood and prioritised).

TJ after the LIO: changes in post-authoritarian and post-conflict transitions

It is worth pointing out that TJ was seldom a process of seamlessly applying international accountability norms to consolidate modern liberal democracy, even at the highest point of liberal hegemony. States in the Global South have always leavened international prescriptions with normative innovations to apply context-specific accountability and repair processes. ⁸⁵ Global norms are always contested at the national level, and states largely control how much justice to pursue and when. There is always a prudentialism at play – ‘states, regardless of their liberal posture, formulate policies on transitional justice not out of a principled commitment to the rule of law, but rather as a case-specific balancing of politics, pragmatics, and normative beliefs’. ⁸⁶ Notwithstanding accusations of apolitical homogeneity and ‘one size fits all’ approaches, rhetorical endorsement of TJ has never crystallised into a settled consensus concerning what atrocities or perpetrators to investigate, the remit of truth commissions or how rigorous a guarantee of non-repetition must be. This lends states discretion and enables sensitivity to contextual considerations. ⁸⁷ Indeed, it is these ambiguities which may have made the TJ norm’s diffusion more widespread. TJ policy is usually a primarily domestic negotiation between conflict parties, governments and civil society, with some donor or multilateral mediation weighing uncertainly in the balance. ⁸⁸ While their funding and support are important, and premised on a liberal teleology, the intent of Western interveners from outside seldom tallies with their ordering effects. States habitually instrumentalise TJ more to bolster state security or legitimise the regime than to foster more rule of law, human rights or democracy, ⁸⁹ while those with much to lose, in particular, attempt to limit the scope of TJ. All too often, TJ ‘may entail policies to prosecute only a few people, to award reparations that have symbolic value but only a limited reparative effect, to highlight some truths but not those truths that may be seen to threaten the possibilities of moving forward’. ⁹⁰ Few TJ processes succeed fully when judged by their stated objectives, and many good faith efforts at TJ will fall short of international standards. ⁹¹

It is for this reason that some assert TJ goals should be more modest, seeing the more ‘mediate’ goals of recognition and civic trust as less tenuous than stated ‘final’ goals like reconciliation and democracy mooted by donors, IOs and liberal scholars. ⁹² While causal or instrumental approaches linking TJ to peacebuilding, rights and the rule of law tend to animate liberal donors and multilateral institutions, ⁹³ other actors and communities pursue what we label TJ for purely deontological purposes that focus on inherent rights and dignity of individuals or community ideas of justice and desert (retribution, expressivism, pedagogy, tradition, truth) regardless of any broader teleology. Furthermore, much of TJ theory now consciously embraces grassroots, hyperlocal and indigenous forms of TJ as a valid alternative to top-down, monoperspectival liberal-legalist teleologies. ⁹⁴ Indeed, this pluralism has been energised by the failures of liberal legalism to deliver on its claims. By contrast, there has been a notably less warm embrace in the literature of the phenomenon of illiberal or autocratic TJ, where governments use the language and mechanisms of TJ for repressive purposes. Loyle and Davenport note that non-democratic governments ‘implement TJ without maintaining an interest in truth, peace, or democracy but rather with the intention of promoting denial and forgetting, perpetuating violence, and legitimating authoritarianism’. ⁹⁵ Across the world, we see phenomena like ‘autocratic truth commissions’ that are used to buttress a regime’s ontological security and limit or obscure truth ⁹⁶ or tactical prosecutions to pursue conflict-related aims or to improve the legitimacy of a pseudo-democracy. ⁹⁷

While it will be clear from the foregoing that the link between TJ and liberalism is contested and by no means inevitable, it remains the case that most TJ is mostly practised and theorised in relation to the two so-called liberalising ‘paradigmatic transitions’ that initially defined the field, namely those from authoritarianism and/or conflict to democracy and/or politically inclusive peace. ⁹⁸ Here, TJ was both exported and imported as a defined national political project of compatibility with the LIO, one which ‘made the question of justice central to democratic transitions, but also made the question of politics central to the idea of justice’. ⁹⁹ This was an unabashedly ‘high politics vision of the state’ focussed on the consolidation of politically inclusive institutions. ¹⁰⁰ Much critical analysis and empirical research have exposed some of the ‘magical thinking’ and ‘implausible shortcuts’ at play in some of the more exuberant accounts of TJ. ¹⁰¹ Truth commissions, for example, appear to have little measurable effect on election fairness, separation of powers or judicial independence. ¹⁰² Ideas of closure, of transition as a liminal moment of absolute rupture, of the hegemony of law have proven simplistic. Nevertheless, there can be little doubt that the support TJ has received from domestic reform constituencies and the bureaucratisation it enjoyed at international level owes much to its assumed (and by no means negligible) potential to deconstruct authoritarian ideologies, build common consensus around national political identity and to draw a firm line between what the polity permitted in the past and will allow in future. ¹⁰³ Even intimate grassroots and individualised forms of transitional justice premised on a critique of macro-level TJ acknowledge the need to ‘scale-up’ to institutions and structures of exclusion at the national level, one that demands more rather than less political inclusion. ¹⁰⁴

A democratic transition, constitutive of but also constituted by TJ, ¹⁰⁵ offers the greatest scope for TJ to make a meaningful macro-political difference, even if we accept the limitations of such an approach and note the ample usages TJ mechanisms can be put to outside an overtly liberal teleology. It is these ambitious macro-level logics and purposes that are most affected significantly by the gradual erosion of the LIO.

Diminution in democratic transitions

TJ was the product of the ‘third wave of democracratisation’, the period of significant global democratisation that began around 1974 and continued into the early 1990s. It was theorised in the late 80s and early 90s when the cohort of countries enjoying an episode of democratisation was peaking ¹⁰⁶ and mainstreamed around the millennium, when the actual number of democracies peaked. ¹⁰⁷ TJ was initially designed and implemented in states like Argentina, Hungary, Peru, etc., where there was sincere (though by no means unerring) progress towards democracy and where there was a highly supportive international environment of example, pressure and support. However, the debates about the stability of the nascent democracies that defined the earliest debates now routinely take place in the Global North, where long-consolidated democracies are regressing. TJ must henceforth take place in a global context where ‘democratic backsliding has become a defining trend in global politics’. ¹⁰⁸ Simply put, the number and quality of democratic transitions is declining and has been since the early 2002s. ¹⁰⁹ By one measure in 2024, 45 states were in ongoing episodes of autocratisation, whereas only 19 were enjoying periods of democratisation. ¹¹⁰ As noted earlier, there are now more autocracies than democracies in the world. Indeed, by some measures, democracy has hit a fifty-year minimum. ¹¹¹ The third wave of democratisation ‘has crested, if not reversed. Countries that recently transitioned to democratic rule and were once considered consolidated now appear vulnerable to democratic backsliding or outright reversion to autocratic rule’. ¹¹²

These global developments suggest a few sobering lessons for advocates of TJ. At present, there are fewer transitions from autocracy to something with an obvious liberal-democratic teleology. The political conditions in which TJ is theorised to have its largest sociopolitical impact, that is those ecologies where it can capitalise and reinforce nascent or re-emerging commitments to the rule of law and human rights, are therefore decreasing. What we see now is a variety of descriptors for what is happening (illiberal turns, democratic erosion, rollbacks, autocratisation, breakdowns) ¹¹³ and what is produced (hybrid regimes, electoral autocracies, competitive authoritarians, etc., that ignore constitutional limits of power and deny basic rights). Few genuinely democratic transitions in the present or future can be assumed to buck this trend. TJ still occurs in those so-called ‘grey zone’ states that are neither fully democratic nor classically authoritarian. Trials, truth commissions and reparations will continue to prove attractive in either authoritarian regimes with democratic attributes or democratic regimes with defective institutions because of their still somewhat undiminished capacity to bolster the impression of disconnection from the previous regime. However, TJ in these states has proven much more circumscribed and reversible than standard liberal-legalist accounts of the field predict because it serves more as a tactical concession to bolster legitimacy than a marker of a genuinely new political culture. ¹¹⁴ Trials may punish wrongdoers without establishing the predicates for a rule of law; truth commissions can acknowledge past abuses without recommendations to disavow them in future; guarantees of non-recurrence become means of purging enemies. The evident (and laudable) success of TJ in branching out to areas like the environment, dissident sexuality, race and cultural heritage obscures the reality that there is a dearth of ideas about how TJ can achieve basic efficacy or its expected sociopolitical impact in states where losers do not accept the results of elections, where commitments to rights or constitutional checks and balances are conditional, or where there are limitations on civil society and free press.

The struggles of democracy in the developing world are compounded by those in the West. Most international funding for TJ is directed towards programmes associated with state institutions tethered to human rights, rule of law and democracy building. ¹¹⁵ While the resulting to over-ride of local victim organisations has formed a ground for critique of the field, it is leavened by an acknowledgement that some TJ processes become impossible without it. ¹¹⁶ While international support does not render TJ processes immune from instrumentalisation for political purposes, but it does make it less likely, generally provides some insulation for civil society and grassroots justice projects from the vagaries of domestic politics. ¹¹⁷ TJ can no longer assume the supportive practical umbrellas of international democracy promotion, rule of law reconstruction and human rights mainstreaming that it sheltered under (and derived financial and project support from). As Carothers notes, in Western societies, we see a ‘sapping [of] their attention to the state of democracy beyond their borders, as well as their confidence that democracy is the best choice for others’. ¹¹⁸

The reorientation of post-conflict peacebuilding

TJ has always been a feature of liberal peacebuilding, the means by which Western and multilateral actors used on-the-ground presence, incentives and sanctions to go beyond cessation of violence and power sharing to build more inclusive, rights-oriented post-conflict democratic states with the rule of law. In 2004, the UN Secretary General acknowledged peace, justice and democracy as ‘mutually reinforcing imperatives’, holding that some form of transitional justice mechanism was crucial for societies like East Timor, Kosovo and Cote d’Ivoire emerging from violent conflict. ¹¹⁹ The EU and the US saw truth commissions, trials, reparations and GNR as key aspects of the LIO’s conflict resolution policy. ¹²⁰

Liberal peacebuilding is increasingly called into question. A few of the main exemplars of liberal peacebuilding like Afghanistan, Kosovo, Cambodia, etc., became anything like functional liberal democratic polities. ¹²¹ Many aspects of liberal peacebuilding doctrine have been ‘unevenly applied, instrumentalised, or plain ignored’ by domestic and international actors. ¹²² The liberal peacebuilding consensus in which TJ was embedded ‘faces multi-layered challenges with the apparent decline of the unipolar system and the emergence of alternative actors in global peace processes’. ¹²³ Western states have a visibly diminishing appetite for engaging in faraway peace processes and the UN has not launched a new full peace operation since 2014. ¹²⁴ The rise of Russia, India and China, in tandem with the declining relative weight of Western influence, allows weak states to play both sides, catalysing the growth of ‘non-Western’ approaches to peace and conflict. ¹²⁵ Illiberal states point to the travails of democracy in the West to argue that political reform and democratisation might weaken the state and polarised society. Hierarchy, statist authority and majoritarianism are instead invoked as counter-norms. ¹²⁶ A number of states have clearly rejected liberal ideas of conflict resolution, democratisation and state building. As early as 2005, Sri Lanka preferred a savage counter-insurgency to a failing peace process. ¹²⁷ This was followed by the exclusion of Western influence and liberal norms in civil conflicts like those in Afghanistan, Nagorno-Karabakh and Libya. ¹²⁸ Most of the aforementioned illiberal peace processes jettisoned TJ entirely. Mali revitalised its moribund peace process by strategically using legally dubious amnesties for prominent individuals accused of serious crimes, reifying the individuals in question as legitimate opposition. ¹²⁹ Angola, a ‘textbook example of illiberal peacebuilding’, used a deeply compromised truth commission to ‘foster authoritarian resilience’ and undermine the political legitimacy of the opposition. ¹³⁰ Even where liberal actors exercise some influence, TJ may in future take place in conditions of ‘formalised political unsettlement’, a resigned alternative to the failures of liberal peacebuilding that emphasises exclusive, elite-driven pacts over democratisation or good governance as broader political teleologies. ¹³¹ In such an environment, Kobayashi et al argue transitional justice may not mesh with the ‘political ordering’ at play in moments of change. ¹³²

Compliance with TJ norms should not be understood in dichotomous terms. Even in the most propitious of paradigmatic transitions, compliance exists on a spectrum of greater to lesser truth, accountability and/or repair. However, the lack of any meaningful transition to democracy or inclusive peace creates an obvious risk of (successfully) ‘contested compliance’ (or even ‘defiant non-compliance’) on the part of ostensibly transitional states. ¹³³ Alternatively, we might see newer iterations of the aforementioned phenomenon of authoritarian TJ, where resolutely non-democratic polities use both the language and the tools of transitional justice to fortify repressive rule. ¹³⁴

Discursive challenges in a multipolar world

It will be clear from the foregoing that in a multipolar world, there is a real possibility that ‘the geopolitical power of external liberal actors to shape post-conflict outcomes as domestic actors increasingly shift attention towards the role that authoritarian states can play’. ¹³⁵ However, even if the opportunities for TJ are significantly reduced, things are unlikely to be terminal. Affluent democracies in the West have proven resilient over the last century, albeit with notable exceptions – norm erosion, polarisation and institutional gridlock are challenges to democracies, not death knells, particularly if escalating economic inequality can be grappled with. ¹³⁶ This liberal core may become strengthened if the West rediscovers its liberal commitments and can induce cooperation with other orders to deal with common problems. ¹³⁷ Liberal values of openness, legality and cooperation may retain an attraction in the absence of compelling rival meta-norms. Liberalism is more likely to be circumscribed than erased. ¹³⁸ It may even be that the present moment is anomalous and that the apparent wave of autocratisation is reversed. On the softer end of the autocratic spectrum, because they rely on elections and give lip service to democratic bona fides, competitive autocracies are unstable. While some have hardened or been replaced by new ‘democracy with adjectives’ regimes, states as diverse as Botswana, Albania, Peru and Madagascar have moved towards more, not less, democracy. ¹³⁹ On the harder end of the authoritarian spectrum, it cannot be assumed that regimes in China and Russia, for example, are eternally resilient. Both polities are premised on the idea that the citizenry remains quiescent provided the regime generates social services, jobs and subsidised goods. Declining growth and economic crises, both readily apparent in Russia and China, may place social contracts under strain. ¹⁴⁰ Democratisation, no less than autocratisation, tends to come in waves as cross-border waves of revolution, reform, example and assistance lead to cascades of regime change. ¹⁴¹

For now, however, the world has changed, not utterly but significantly. In situations where the material changes to democratisation and peacebuilding do not preclude TJ completely (i.e., a transition from some less-rights-respecting sociopolitical ecology to some more-rights-respecting sociopolitical ecology), there is also likely to be a discursive change in terms of the range and nature of the arguments that are advanced for and against TJ norms. Even in ordinary times, norms are dynamic processes, as opposed to static ‘things’. ¹⁴² Because they are vague and intersubjective, norms are inherently contested in terms of meaning. Consequently, they evolve after they emerge, even in the most stable of conditions. ¹⁴³ This evolution can lead to norms being strengthened or weakened. The values of a norm can change, its legal or institutional protection can change, as indeed can its social validity. ¹⁴⁴

Norms are most intensively contested and changed during ‘major changes or disruptions in the international setting’. ¹⁴⁵ In particular, very unstable environments in the immediate context of a norm conduce to accelerated degeneration, in part because supporters of a norm cannot or will not invest resources to sanction non-compliance. ¹⁴⁶ It would follow that the way TJ is discussed in transitional states cannot be divorced from the overall delegitimisation of liberal norms canvassed throughout this paper. Liberal norms that previously have been contested in an ‘order-consistent’ way (where the method of implementation is challenged) are now challenged in an ‘order-challenging way’ (insofar as actors reject liberal core norms and many of the institutions and/or values of the order). ¹⁴⁷ As a self-consciously global project, TJ will be affected by the worldwide shrinking space for liberalism and the apparent diminution of international law ‘as the relevant normative framework for the assessment of transnationally relevant behaviour’. ¹⁴⁸ Indeed, as Sandholtz argues, it is at those times when a norm appears to be in decline and/or when compliance is decreasing that the discursive dimension assumes its greatest importance. ¹⁴⁹ No rising power, after all, can dictate a change in TJ norms by itself. TJ norms of truth, accountability and repair will remain socially constructed and will evolve or decline only through processes of argumentation and persuasion. ¹⁵⁰

While it is conceded that any attempt to predict exactly how challenges to the LIO will affect the domestic and international discursive environment for TJ in the future is necessarily somewhat speculative, this exercise is not entirely so. Two things can be said with a tentative confidence. Firstly, because of what we know about international norm change more generally, contestation of TJ norms is more likely to yield incremental disruption or weakening of the norm than its outright disappearance. Secondly, any future weakening of TJ will mark an acceleration of observable existing discursive trends, as opposed to a brand new phenomenon. The future of TJ is an extrapolation of an already compromised present.

Contours of discursive change

While the LIO might see deep contestation of the type described above, it cannot be assumed that TJ as an aspect of it will suffer the same interrogation. The challenge from the Global ‘East’ and the ‘South’ is one about power and the nature of modernity itself. The ‘wrecking ball’ brandished by Trump, Xi, Putin et al may only swing at some issue areas. ¹⁵¹ TJ is but a minor aspect of the LIO and does not lie at the forefront of the critique of it. Furthermore, decisions about TJ tend to happen on a state-by-state basis – it is unlikely that there will be a concerted international effort to persuade multilateral actors or the global community to terminate, reinterpret or change TJ norms. There is unlikely, therefore, to be a wholesale abandonment of TJ. For weak powers, no less than rising ones, some observation, application or engagement of existing norms beyond lip service may still prove a relatively cost-free means of building status and authority in a legalised environment. ¹⁵² Open rejection of human rights (or human rights-inflected norms like TJ) might ‘offer little in the way of pay-offs’. ¹⁵³ Beyond this, even for the most revisionist of powers, the limitation or modification of norms is more likely than annulment. ¹⁵⁴ This is in part because legislative ‘cancellation’ of TJ is impossible on account of the lack of a central ‘law’ of TJ, given its manifestation in various aspects of human rights law, humanitarian law and other sources of soft law. There is no single global TJ institution to assail. No new norm or practice is likely to replace TJ, if only because so many of its key mechanisms (trials, historical inquiry, reparation, purges, memorialisation) are things that many societies have practiced as a matter of domestic law or political, historically prior to and independent of the LIO, and can be conceived of in non-liberal terms. National governments ‘seeking legitimacy in the eyes of their own population must invoke norms that their people recognize and accept’ ¹⁵⁵ – criminal sanction, historical inquiry, compensation or institutional reform may prove attractive to states mediating the shift from one form of rule to another even if liberal rhetoric to frame rights and duties is used less conspicuously. Further, it is unlikely that TJ will have entirely exhausted its capacity to inspire faith and constructive action. Even with forms of state reluctance or recalcitrance (explored below), NGOs in particular may continue to assume their role in catalysing TJ, acting like civil society often does ‘as norm entrepreneurs, stabilizing legal opinions, furthering progressive interpretations, countering discursive attacks, and condemning non-compliance’. ¹⁵⁶

Nevertheless, TJ or TJ-adjacent processes will remain contentious. Actors in transitional states will contest TJ norms like accountability, truth and reparation or attempt to undermine or modify them, as they have always done, even if they stimulate counter-mobilisation to reaffirm these norms, as they also have always done. However, unlike in the past, this domestic contestation and counter-mobilisation now occurs in a global ‘competition of norms, narratives and legitimacy’. ¹⁵⁷ With the erosion of the LIO, states ‘engage in cheap talk, giving lip service to human rights while denying they are doing anything wrong or that outsiders have any right to question their domestic practices’, pointing instead to countervailing principles of sovereignty or non-interference. ¹⁵⁸ Some degree of contestation of a norm is tolerable, if not indeed welcome, in terms of its dynamism. In any battle between ‘pro-norm’ and ‘anti-norm’ arguments, the supportive structures of international law lend legitimacy to the former until a threshold level is passed, whereby it is fundamentally undermined. ¹⁵⁹ Complicating matters somewhat is the reality that changes in the discursive environment of non-codified international norms like TJ are more likely to be informal than formal because they rest on shared understandings within a broader community of practice than on a rigid application of law. ¹⁶⁰ Because there is no central locus that can ratify a convergence of understandings about how TJ should apply, change is also more polycentric than unanimous, more gradual than sudden. What we are most likely to see is what Krish and Yildiz call a ‘modification of the burden of argument for a particular position on the content of the law’, a situation where the legal discourse has shifted to a situation where the scope of possible interpretation or authoritativeness of certain approaches has altered. ¹⁶¹ Even if this alteration is indeterminate, it is significant.

The existing discursive environment

TJ is a classic example of a norm which, at the level of general acceptance, has historically attracted little proactive contestation – few governments overtly reject accountability, truth, repair or non-recurrence as principles. However, as noted earlier, it has always been more contested when it comes to the detailed implementation of semi-standardised procedures at the national or local level, where global norms are actually implemented. ¹⁶² To paraphrase Jan Klabbers, to invoke the law or teleology of TJ is not to conclude a discussion, but to start one. ¹⁶³ Far from a toolbox approach, one-size-fits-all or liberal imposition that form the basis of critiques of TJ, almost everything in it is negotiated. From its earliest days, the field has been consumed by debates over how far to push, given that too much accountability, justice or institutional reform can catalyse violence that might jeopardise transition. TJ has always balanced legalistic zeal with a ‘transitional prudence’ whereby states avoid pushing justice so far as to risk instability. ¹⁶⁴ Problems of domestic institutional weakness, scant resourcing and limited international support means TJ is seldom thoroughgoing. As one former Special Rapporteur for TJ acknowledged:

‘No country that has undergone a transition… has persecuted each and every perpetrator of human rights violations… has implemented a truth-seeking strategy that disclosed the fate of each and every victim… has established a reparations program providing each and every victim with benefits proportional to the harm.’ ¹⁶⁵

Strict liberal legalism has always existed in tension with arguments for more pluralist, context-sensitive approaches, and the former has often lost out. ¹⁶⁶ TJ has always oscillated between rule-induced compliance and intentional non-compliance justified with reference to security concerns, capacity concerns or the greater applicability of more locally legitimate approaches. ¹⁶⁷ The rhetoric over TJ has never translated into a resolved consensus over how much justice is too much or too little. TJ has always been a ‘cloak that aims to rationalize a set of diverse bargains in relation to the past as an integrated endeavour, so as to obscure the quite different normative, moral and political implications of the bargains’. ¹⁶⁸ The attempt to resist TJ norms will be mediated by agents (primarily at the domestic level of implementation and international level of support) who can eschew or complement familiar arguments against TJ based on security, capacity, local justice approaches or context sensitivity with forceful arguments linked to a changing international normative environment that is distinctly less hospitable to TJ than was formerly the case. ¹⁶⁹ It is to this that attention now turns, both for those ‘exporting’ TJ norms (multilateral institutions and liberal Western states) and those ‘importing’ them (states undergoing some semblance of transition).

The effect of illiberalism on TJ support

As the previous section noted, TJ will struggle to take root beyond localised or grassroots projects in low- and middle-income states without substantial financial and technical support from the West. ¹⁷⁰ This support was not only important in itself – it was of crucial leverage in debates over whether to pursue TJ and how to do so. While TJ as a globalised project was a dominant discourse that normalised and justified intervention by external actors, it empowered citizens as justice seekers as well as justice receivers, vindicated as bearers of rights in international law that were not subject to realpolitik. ¹⁷¹ While support from the US and Europe has always been somewhat ad hoc in the sense that funding and assistance are fragmented, it has generally been forthcoming, given the desire to ground liberal norms. ¹⁷² This desire, important given the lack of reciprocal benefits for Western states from supporting, monitoring or enforcing TJ norms, can no longer be assumed to exist. As Wajner and Giurlando argue, nowadays, the international agendas of states in the West are increasingly affected by populist ideas and discourse that disdain global governance of any kind and the external support of universal values typically associated with TJ like human rights and the rule of law. ¹⁷³ Trump’s opposition to the New York Times’s 1619 Project or Polish and Hungarian opposition to Holocaust remembrance laws are seen as ‘a protectionist reaction against the globalization of liberal remembrance’, a nativist opposition to global scripts. ¹⁷⁴ TJ can no longer be assumed to form an accepted aspect of US soft power in a world where international norms are increasingly seen to clash with sovereignty and domestic values. As Kaufman notes, there always has been a principled argument against supporting TJ on the grounds on account of ‘the normative and legal commitment to non-intervention – the notion that states should refrain from interfering in the affairs of other states’. ¹⁷⁵

As Western states align along a cosmopolitan-liberal and authoritarian-nationalist lines, there is a distinct backlash against liberal intrusiveness, ¹⁷⁶ which (as noted earlier) has seen huge cuts to foreign aid. ¹⁷⁷ One might assume that public goods provided by the US might instead be provided by states that defend the LIO, but we also see cuts in funding across the liberal West. ¹⁷⁸ TJ is a ‘low politics’ issue, one that seldom ranks as a vital interest for states, even where it is endorsed. ¹⁷⁹ Projects like TJ that struggle to present a credible causal case for explanation of how they contribute to goals like peacebuilding may struggle to attract funding, ¹⁸⁰ especially when there are competing projects like food aid or humanitarian assistance. Planned and operational TJ processes around the world are significantly ‘endangered’ due to lack of funding, such as the Kasai Central Truth Commission in DR Congo and work with torture survivors. ¹⁸¹ USAID cuts, in particular, have proven devastating. As one NGO notes: ‘In the field of transitional justice, from conflict to post-conflict countries, from small NGOs working with survivors of rape to large behemoths providing advice to state institutions, nearly every organisation has been affected’. ¹⁸²

The effect of illiberalism on domestic TJ debates

Funding cuts not only impact the scope and competence of TJ activity. It also conditions whether and how it happens. To date, liberal international actors have provided critical support in TJ debates, even at times taking precedence over the preferences of national actors who have been consulted. ¹⁸³ The weight these actors have hitherto carried in domestic debates can only decline in an era of reduced aid and increased normative contestation both at home and abroad. While TJ has always relied on ‘discursive forms of resistance’ by civil society drawing on liberal norms to challenge or circumvent foot dragging by those ‘spoilers’ or ‘deviant’ domestic leaders reluctant to pursue TJ, ¹⁸⁴ illiberal leaders, or merely those ambivalent about the likelihood or value of liberal transition, can now draw on more globally resonant resistant scripts to stave off TJ. The argument that ‘TJ experts, implementers and brokers tend to define discourse around TJ and do so around a set of international norms, which are removed from local contexts’ has long been made by those keen to expand TJ in more socio-economic, transformative or localised directions. ¹⁸⁵ However, this argument can also be used by those who wish to contract it. The past failures or future risks of TJ in a given state can be drawn on in constructing alternative narratives based on sovereignty, resistance to liberal imperialism, forgiveness and so forth . It is now much easier to argue that human rights, democracy and the rule of law are ‘a commitment to abolish or flatten national cultures’ surreptitiously ¹⁸⁶ or that global liberal norms limit the options of national governments ‘to an extent that jeopardises effective problem-solving’. ¹⁸⁷ The locus classicus of this is, of course, African contestation of the duty to prosecute or extradite to the International Criminal Court through a critique of the liberal norms of anti-impunity as imperialist, notwithstanding its foundation in international treaties. ¹⁸⁸ While the criticism that TJ is an instrument for the spread of Western values and the denial of non-Western ways of knowing/being has long been a (reasonably valid) aspect of TJ critique, ¹⁸⁹ these arguments are now far more resonant given the convergence of sovereigntist anti-colonial claims from the Global South with the increasing discourse of extra-legal sovereignty and non-interference from the leading illiberal states. ¹⁹⁰ It is notable, and perhaps regrettable, that many of these claims now marginalise the clamour for democracy and human rights that historically animated decolonisation claims. ¹⁹¹

Bearing these developments in mind, individual TJ mechanisms may struggle to enjoy the popularity and legitimacy they enjoyed for a quarter century after the Cold War’s end. For example, Malksoo argues that the adoption of truth commissions may already be becoming ‘limited or highly selective’ in world states which prefer to maintain their ontological security by glorifying memories and ‘useful past’ over reflective exploration of past abuses and problematic chapters of history. ¹⁹² Likewise, McAuliffe contends that transitional states increasingly place greater faith in the informal, neopatrimonial and authoritarian logic of informal settlements than the liberal-institutionalist logic of guarantees of non-recurrence. ¹⁹³ It is axiomatic that the more authoritarian a transition becomes, the less likely it is to embrace genuine domestic criminal liability or comply with ICC arrest warrants. ¹⁹⁴

Developing world populists increasingly adopt a ‘soft-balancing’ approach, becoming closer to the likes of China and Russia while seldom breaking entirely with the liberal core. ¹⁹⁵ TJ has long seen marred by states employing TJ mechanisms ‘while at the same time rejecting or ignoring their substance’ violating TJ norms while ostensibly complying with their demands. ¹⁹⁶ Indeed, many domestic TJ debates revolve less around whether to pursue trials or accountability than the quality or genuineness of an existing process. The contracting sphere of liberalism both makes ‘it more difficult for liberal states to pressure or encourage non-compliant states to improve their human rights performance’ (something that applies with equal force to international organisations) and ‘makes it easier for authoritarian states to resist external pressure’. ¹⁹⁷ As Lesch, Zimmermann and Deitelhoff note, there is considerably less concern about shaming or sanctioning on the part of non-compliant states than there was at the high tide of the LIO. ¹⁹⁸ Indeed, there is now a greater willingness by those who view themselves as outside the global order ‘to opt for open transgression and fundamental contestation’. ¹⁹⁹ For example, Dancy and Thomas note how populist opposition leaders in Tunisia strongly criticise the truth commission there and the possibility of reparations as part of an anti-transitional justice populism, and how the populist president of El Salvador Nayib Bukele is openly hostile to TJ, disdaining accountability for past massacres as a distraction from his war on crime. ²⁰⁰ The Attorney General appointed by Guatemala’s hardline conservative Giammatei government dismissed prosecutors responsible for war crime trials, including those who brought former president Efraín Ríos Montt to trial for genocide and crimes against humanity during the country’s civil war. ²⁰¹

That the discursive environment for TJ has become more challenging in those apparently diminishing number of ‘paradigmatic transitions’ to democracy and/or peace does not automatically mean it becomes less likely. As noted, TJ is always contested between those who want more or less justice. TJ has often seen resistance overcome by principled political leaders and civil society. However, given the weakness of liberal normativity, the reduced amount of support from the West and the prevalence of globalised counter-norms, the already substantial risk increases that we see security, sovereigntist or cultural arguments trump justice or rights-based pleas. Even if we do not see outright norm disregard (that is overt non-compliance), there is obviously increased scope for mere rhetorical adaptation of TJ, norm avoidance (arguments that certain actions or circumstances fall outside the parameters of the TJ norm) or norm (re)interpretation (the attempt to limit the interpretation of TJ norms in a given context). ²⁰² This happens already in many sites where TJ is implemented (see, for example, the deeply compromised processes in places like Tunisia, East Timor, Mali) but usually in the face of objections from states and multilateral organisations. What now becomes more likely is a lowering of the argumentative burden for those who want to deviate, downplay or dilute TJ norms. ²⁰³ Norm contestation of this sort is obviously more disruptive in an environment where liberal norms are weakening than when they are hegemonic. In a dynamic environment of contestation, relativisation and chauvinistic assertions of sovereignty, advocates may ‘lose control’ over the meanings or implementation of norms of non-impunity, truth, non-recurrence or reparation in a world where the international community neither monitors proceedings effectively nor funds domestic civil society. ²⁰⁴ Where norm violations increase and where both concerned domestic actors and other states cannot effectively condemn violations, the norm is clearly weakening.

Conclusion

TJ emerged during the consolidation of the LIO, manifesting the tendency of ‘international norm developments to move together, like ships borne along the same current’. ²⁰⁵ The TJ norm was promoted via linkage to other liberal goods like human rights and democracy as part of a post-Cold War trend of piercing the sovereign veil. Though many goods are associated with the field beyond the liberal rule of law paradigm and below the level of macro-politics, it achieved widespread policy purchase among international actors and domestic leaders because of its assumed ability to deal with a contentious past in a way that could sustain peaceful, democratic settlements. ²⁰⁶ However, as the last decade or so has revealed, norms are severely tested during periods of tumultuous change in the international community. ²⁰⁷ The current has become distinctly choppier. The LIO is subject to severe material, institutional and ideational crises. ²⁰⁸ In a multipolar world, sovereignty norms and liberal norms ‘rub against’ one another to a degree they did not and could not at the height of the LIO. ²⁰⁹ These macro-trends offer challenges to the concept and practice of TJ and its place in broader theoretical debates about global constitutionalism. TJ at the national level has always been reliant to some degree on international support, funding and expertise, though this should not be overstated. Key components of TJ’s substance (accountability, truth, repair, etc.,) and teleology (democracy, inclusive peace, human rights, rule of law) are being challenged in predominantly liberal states, which have obvious knock-on effects for their willingness, ability or credibility to export associated norms and practices.

It is impossible to predict what will happen to TJ – the future has not yet arrived, and the present sees permanent flux while leaders like Trump, Xi and Putin remain in power to exert their influence. Change may ultimately prove indeterminate. However, a few things can be predicted with some confidence.

• • Firstly, there are already fewer of the paradigmatic transitions to democracy that provided the field’s initial scope conditions and remain the implicit context for most theorisation. Furthermore, future peacebuilding efforts are likely to be less intrusive than those that gave rise to much TJ in the 1990s and 2000s, and a good deal more agnostic about governance arrangements. ²¹⁰ In transitions to democracy or autocracy with adjectives, TJ risks losing its prescriptive status in the sense that non-compliance may become more the rule than the exception in the near future if it is not doing so already. ²¹¹

• • Secondly, negotiated and contested ideas like TJ are most likely to contribute to a state-wide, high politics impact along the lines of consolidating democracy or sustaining an inclusive peace in genuinely (paradigmatic) transitional states where they connect with a preponderance of supportive global and domestic social ideas. To the extent that (a) these social ideas are assailed as sovereigntist counter-norms are promoted to a greater degree and (b) there is less willingness or ability on the part of the liberal West to promote and support TJ norms, there will be a lowering of the argumentative burden for those who want to outright defy, water down or find workarounds for TJ. The compromised TJ processes we are familiar with may no longer seem a ‘bump in the road’ as they do now, but rather a new normal.

• • Thirdly, TJ has a degree of relative autonomy and its own distinct modes of justification. Its prospects cannot be reduced to the politics that attend the weakening of the LIO. ²¹² TJ’s proven historic ability to rally reformist forces and its utility in metaconflicts over the political past and present creates space for productive struggles and hard bargaining over international norms vis-à-vis substantive and procedural questions over accountability, truth, repair and non-recurrence. However, while internal contestation in the past has strengthened TJ, expanding its areas of moral concern to new contexts and new types of victimhood, the external challenge posed by the embattled nature of the LIO creates an obvious risk of norm decay. Of course, the macro-trends discussed here offer opportunities as well as challenges to reimagine the practice and concept of TJ beyond liberal-legalist imaginaries – more local, more attuned to economic injustice, less technicist. What is clear is that in a more difficult material and normative environment, the range of and nature of legitimate arguments that can be raised in relation to TJ standards is changing.