Imagining Transitional Justice in Colonial Contexts
Transitional justice is the main contemporary method to establish justice and bring sustainable peace to societies and peoples that have suffered from repressive rule, and from an extended legacy of human rights violations, especially in countries that have suffered from colonialism. Transitional processes are designed to provide political and legal remedy for past grievances through contemporary mechanisms of justice. However, remedies available in the context of transitional justice are rarely applied to the violence and injustice inherent in settler colonialism.
Some models, related to the application of transitional justice in cases of African colonialism, show that the idea of social justice is in a state of constant change, as it attempts to provide redress to all those who have been subjected to the grievances of the colonial past, on the basis of local judicial traditions and practices, in a way that meets their needs. This was confirmed by the report of the Secretary-General of the United Nations, Kofi Annan (2004), which dealt with transitional justice as
“the full range of processes and mechanisms associated with a society’s attempts to
come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”
These may include both judicial and non-judicial mechanisms, with varying levels of international participation (or none at all). Here, the main challenge in the experiences of countries that want to move forward and achieve societal security, by restoring the relationship between society and state institutions, is to choose among the types of justice to be sought: punitive, restorative, or transnational.
The comprehensive approach of transitional justice rests on a basic principle, such that justice cannot be achieved in isolation from other issues related to human rights, the violations of which were committed, in particular, against the most-affected groups (indigenous peoples, women and children, refugees and displaced persons), and they are among of the historical grievances that colonialism left it behind and continue to date, including systemic discrimination, violations of human rights to health and education, plunder of land and violations of the right to their territories and other natural resources, as well as a lack of recognition of cultural rights.
Therefore, we find many cases in which the international community has implemented the transitional phase, it has focused only on prosecutions, or fact-finding, but without allowing the participation of victims or national entities, in achieving the appropriate balance and decision making, and finding an approach that balances a variety of goals It aims to institutionalize transitional justice, including the pursuit of accountability, reparation for victims, maintaining human security, building democracy and the rule of law, all of which are urgent and cannot be postponed.
In the same context, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence launched a survey, to obtain written contributions from all relevant actors, on the adoption of transitional justice measures to address the legacy of gross violations of human rights and humanitarian law committed in colonial contexts. The results will be presented at the 76th session of the General Assembly, October 2021. The Habitat International Coalition – Housing and Land Rights Network, in collaboration with HIC Members, participated in providing contributions related to the Middle East and North Africa region.
A contribution from Al Haq (Palestine) shed light on the role of transnational companies and other business and trade institutions as a contemporary form of colonialism within the occupied Palestinian territories. It also addressed the ongoing challenges toward adoption of an international legally binding instrument to regulate the activities of transnational corporations that constitute a contemporary form of colonialism, eroding sovereignty, replacing peoples’ control over their natural wealth and natural resources, and replacing the relationships between people and their governments. Exemplary of this is Israel’s colonial project managing globalization and the free market economy within the occupied Palestinian territories, incentivizing multinational businesses benefit private investment to perpetuate the illegal occupation.
Al Haq stressed that eventual transitional justice must remedy the various dimensions of this lawless political economy to ensure truth, justice, reparation, and guarantees of non-recurrence. These should take into account the shortcomings that marred the Truth and Reconciliation Commissions of South Africa and Namibia, by ignoring economic crimes and left transnational corporations with impunity. These lessons align with the objectives of the 2021–2030 Fourth International Decade for the Eradication of Colonialism. It is notable that only Israel, the United Kingdom and the United States, were the only three states voting against the resolution ushering in the UN Decade.
HIC-HLRN’s contribution to the study, in consultation with several civil society organizations, shed light on reparations required in Moroccan-occupied Western Sahara and Morocco’s “years of lead,” which involved thousands of cases of enforced disappearance, torture and some loss of property.
However, the illegal occupation of Western Sahara, and the looting of the Sahrawi people’s national wealth and natural resources, was not part of the process of equity and reconciliation. It excluded the most cases of individuals who were forcibly disappeared, displaced and dispossessed, and those victims from Western Sahara receive inferior compensation compared to Moroccan victims of enforced disappearance. Moreover, the Moroccan “transitional justice” example also omitted any trial of the alleged perpetrators, many of whom still hold government positions and/or received promotions in posts occupied Western Sahara, which has been hardest hit by the repressive policies still subject to needed transitional justice.
Likewise, in the case of occupied Palestine, the HIC-HLRN contribution separately addressed the liability of organizations that institutionalize material discrimination against the Palestinian People as a whole. It notes how these “parastatals” have carried out internationally prohibited population transfer since their inception, while operating as tax-exempt charities in some 50 other countries. In doing so, HIC-HLRN reiterated its demand that these Israeli institutions be transformed into transitional justice mechanisms in order to deliver remedy to the Palestinian people whom they have dispossessed for more than a century in the name of the State of Israel.
These reflections on the application of transitional justice indicate what measures still need to be undertaken, in order to restore housing, land and habitat justice, as well as international world order in the MENA region.
Photo: Fabian Salvioli, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence. Source: Luis Mejía/Revista FACTUM.