John Laughland’s, A History of Political Trials (2004), constitutes a bold dehistoricisation of transitional justice. It insists that law (and the trial mechanism in particular) provides an intransigent, unchanging response to periods of conflict followed by radical shifts to new regimes of government. As Laughland (ibid., p. 16) makes clear in his introduction to the text:
Human rights activists hail this brave new world in which the judicial system is used to enforce political change, and to bring dictators to heel, the fashionable name for which is ‘transitional justice’[...] But the general principle of subjecting heads of state […] to the criminal law is in fact neither new nor brave. On the contrary it has a rich and fascinating history.
By taking key examples which range from Charles I to the more recent trial and execution of Saddam Hussein, Laughland constructs a lengthy history with a striking continuity throughout. There does indeed appear to be a recurring deployment of law and the criminal trial to prosecute former heads of state in the wake of mass upheaval and conflict.
Given that Laughland is preoccupied with these historical continuities, it is not surprising that he himself draws from Girard’s theory of sacrifice to understand the forces at work in the recreation of the same processes throughout human history. Laughland (Ibid., p. 31) argues ‘Girard has written at length on this deep seated human
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reflex. I shall argue, as this account of the history of political trials unfolds, that it often plays a decisive role.’ While the previous chapter has set the groundwork for disentangling Girard from his own problematic assumptions about both history and power, Laughland’s insistence poses another challenge. If Laughland’s theory is correct, what are the grounds for situating transitional justice in a particularly contemporary context?
There are several criticisms that can be made of Laughland’s project, not least his narrow definition of transitional justice which fails to take account of its range of other mechanisms such as truth commissions, reparations, and lustration. More importantly, as Paige Arthur (2009, p. 328) might argue, Laughland’s line of argumentation risks ‘imputing ideas about ‘transitional justice’ to actors who, presumably, were unlikely to have held them.’ Arthur’s argument thus articulates an important point regarding the problem with Laughland’s analysis. Like Girard, Laughland foregrounds the continuity of practices at the expense of the discourses and institutions which situate these practices in a historically singular moment. They can only claim an historical continuity by ignoring the particularities of each ‘scene’, with its own politics and its own relations of power.
Nevertheless, Laughland’s argument rests largely on the correct observation that, throughout history, the trial mechanism seems to recur at particular symbolic junctures in order to try the leaders of prior regimes. This must be recognised. As such, it is important to ask on what level it is possible to accommodate this observation whilst still insisting on situating transitional justice within a particular and relatively contemporary context? On this front, a genealogical approach is useful insofar as it can recognise the continuity that Laughland traces, but turn it towards an analysis that
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recognises a historical context that bequeaths transitional justice with its own singularity in regards to this larger history.
This chapter will therefore take a particular approach to outlining the historical emergence of the apparatus. It will pay attention not to the deployment of the trial – or any other transitional justice mechanism – but rather, it will approach transitional justice as the specific coming together of various legal and quasi-legal discourses and mechanisms, as well as other techniques, designed to strategically respond to the problem of ‘transitions’ that emerged in the mid-Eighties. As such the chapter will approach the history of transitional justice in a way that responds to Foucault’s own historical characterisation of apparatuses, where any given dispositif ‘has as its major function at a given historical moment that of responding to an urgent need [… it] has a dominant strategic function.’ (1980, p. 195)
As a starting point, the chapter will bear in mind that Foucault’s genealogical methodology should be understood as ‘writing a history of the present,’ (Foucault, 1978, p. 31) that captures moments of transformation in which certain discursive and non-discursive objects emerge, and locates the developments which have arranged a present day social formation. The chapter aims to proceed by identifying the claims transitional justice makes, not only about the problem, but also about how it intends to attend to it. In doing so it is possible to highlight several discourses which transitional justice utilises in these endeavours. The apparatus, I argue, crystallises in their coming together. Mapping this convergence makes it possible to locate the historical context in which transitional justice begins to emerge.
The chapter thus aims to show that transitional justice’s claims about itself are made from the interlocking of discourses of ‘transition’, ‘liberalism’, and ‘human rights’.
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Using this ‘signature’ as a starting point, the chapter will show that while the apparatus owes a debt of gratitude to the post-war tribunal at Nuremberg, it emerges from the context of the nascent human rights movement of the late 1970s. From here, the chapter will demonstrate that the apparatus emerged through institutions and actors such as NGOs, lawyers, academics, and national governments who saw the problem of transition primarily as a legal response to the past, which would enable a successful transition to liberal democracy. Finally, it will aim to show how transitional justice has been governmentalised, that is, normalised as a technique of governing by dint of its incorporation into the practices of peacebuilding conducted by institutions such as the UN and the World Bank.
There are a two benefits to this approach. In the first case it provides a historical analysis that opens up a discontinuity or a break with Laughland’s continuum and locates transitional justice in a relatively recent history. In doing so, it does not entirely reject Laughland’s thesis but stresses that the apparatus is defined by the crystallisation of certain discourses and practices that inhere within the apparatus. Secondly, it provides an opportunity to examine key elements of the apparatus, not only in terms of the discourses which articulate its purpose and practice, but also of the institutions and agents involved in the apparatus at both the global and local level.
There will also be an opportunity to integrate these discoveries into two major arguments of the thesis as a whole. In the first instance, it will be possible demonstrate the historical resonances that transitional justice has shared with the neoliberal project. The history of transitional justice will be brought into the larger context of ‘the great turn’ to neoliberalism and to show that its major ideas lent it to being governmentalised, following the end of the Cold War. Secondly, and by way of conclusion, it will demonstrate how these arguments reframe the Girardian element
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of this thesis. On the one hand, it will show the way in which the apparatus discursively constructs the tumultuous past of transitional societies as processes of undifferentiation. On the other hand, and as a means of leading into the next chapter, it will reflect on how its discourses construct an accusatory narrative of responsibility. Human rights, it will conclude, constructs not only the framework in which the crisis understood but who can and cannot be considered as responsible for it, constraining the field of possibility where a ‘scapegoat’ is concerned.