From the Series: Sustaining the Momentum: Reparative Justice for European Colonialism and Slavery
By Elisa Novic
December 22, 2021
The multifaceted violence underlying colonial rule has often amounted to crimes against humanity (which may also describe the overall experience of colonization), war crimes, and even sometimes genocide. While former colonial states have shown relative eagerness in addressing such crimes when they have occurred within the territory of their former colonies and in contemporary times, they have been more reluctant to account for their own crimes, and to acknowledge the protracted effects of the racist underpinnings of colonization.
A number of countries have nonetheless started to contemplate the possibility of recognizing their responsibility for either crimes committed during colonization, their contemporary legacy, or both. This change in attitudes has various sources. Some states have institutionally or judicially channeled demands to the former colonial power, such as Namibia’s quest for a settlement with Germany for the Herero and Nama genocide committed in the early twentieth century, the Tunisian Truth and Dignity Commission’s demands for reparations from France, and the Caribbean community’s Ten Point Plan for Reparatory Justice, which was addressed to European governments in 2014.
Individual victims as well as collective civil societies have also been particularly instrumental in changing the status quo. For instance, the Truth and Reconciliation Commission established in Canada in 2015 to address the legacy of Indian Residential Schools was the result of a class action suit filed by survivors of these schools and their relatives. They argued that the schools were part of a system set up to foster settler colonialism based on a “logic of elimination” of Native populations. The recent repercussions of the Black Lives Matter movement in Europe have also followed this trend, with the establishment of a Parliamentary Commission in Belgium, for example, to review the country’s colonial past in the Congo, Rwanda, and Burundi, and to draw lessons for the future. This Commission has a primary mandate of “memory” and “reconciliation.”
“Memory,” “reconciliation,” “reparation,” and “truth commission” are all concepts that borrow from the repertoire of transitional justice, a field that was developed in countries with authoritarian pasts, especially in Latin America and in South Africa. The key motivating idea behind its establishment is clear (but not simple): never again. To achieve this objective, it was deemed crucial to confront the past, prosecute those most responsible for serious violations of human rights, and provide reparation for the victims. The scope of transitional justice has gradually expanded over time and transitional justice mechanisms today are increasingly deployed in countries emerging from armed conflicts, conflicts that are also often enshrined in the continuum of some form of colonization (e.g., Rwanda, Kenya, Timor-Leste, etc.). The field has also met some degree of institutionalization, with the establishment of a dedicated United Nations Special Rapporteur, who has issued a number of standard practice guidelines. It is now oriented around four pillars: criminal prosecutions, reparation, truth seeking, and guarantees of nonrepetition. As a result, there is no single or standard model of transitional justice, though experience has provided practitioners with a number of lessons and good practices, including the need to take a holistic approach and to avoid limiting oneself to only one of the aforementioned pillars.
While growing in popularity, transitional justice has increasingly faced criticism, whether due to its limited scope, its top-down approach or, more recently, its potential colonial underpinnings. Transitional justice is indeed predominantly used in countries from the so-called Global South, and predominantly funded by countries from the so-called Global North, through international development cooperation and other funds aimed at the political stabilization of fragile institutions. For instance, the European Union’s “Policy Framework on Support to Transitional Justice” falls within the ambit of foreign affairs, whereas policy instruments to confront its own members’ past are integrated in its “Anti-Racism Action Plan.” These critiques echo others formulated toward international justice and the system of international governance established in the wake of World War II more broadly, which hold that universalism remains quite Western or Eurocentric, and tends to overlook past and alternative forms of victimhood, especially those stemming from colonial pasts.
The reappropriation of transitional justice mechanisms by the Global North may constitute in itself a means of addressing these critiques, provided that the processes respect a number of the core principles that have emerged from transitional justice experiences in the Global South. The first principle may well be that transitional justice cannot be unilaterally decreed. Rather, it must rely on a participatory process involving those affected by the crimes and human rights violations under examination. In the context of former colonial powers, this necessarily involves populations from both formerly colonized states and the former colonizing power, in light of the important population transfers and the formation of diasporas that have occurred in the wake of decolonization processes.
Yet, this raises a number of issues, for which solutions may not necessarily be found within the transitional justice toolkit. First, when it comes to third states or societies (e.g., postcolonial states), who should be the interlocutors and ultimate beneficiaries of the process and its potential outcomes, which may or may not include reparations? Institutions or populations? An interstate dialogue may very well hit against the diverging interests of a government and its constituents, as illustrated by the recent uproar following the signature of an agreement on reparations between the German and Namibian governments, with the opposition in Namibia denouncing the lack of legitimacy of the negotiations. This example raises a second issue, in relation to the tools that should be used to channel reparations; in addition to symbolic measures like public apologies, financial reparations tend to be dealt with under the rubric of official development assistance, a field that is itself highly criticized for being an instrument of postcolonial domination. Finally, even though the Black Lives Matter movement has had the merit of bringing back to the forefront the issue of structural injustice in Europe, the ghost of colonialism runs the risk of obscuring—including within transitional justice—the experience of racialized populations who do not share the colonial legacy of the country in which they live.
These caveats should not obstruct the use of transitional justice to address colonial legacies. Originally, transitional justice was conceptualized as a toolbox, whose contents would be shaped through practice. It is high time to live into this promise of transitional justice by developing the practices that make it applicable to the quest for justice for colonial harms and their persistent legacies. In this process, former colonial powers need to adopt a humble approach to transitional justice processes and engage in a dialogue with countries that have already gone through the work of confronting their past.