The excavation of the history of transitional justice has enabled a thorough investigation of its discourses, its actors and the conditions of its emergence. It has shown that, far from a timeless recurrence of sacrificial violence, transitional justice has emerged as the result of specific social and historical conditions. Moreover, it has shown that these conditions have a relationship to the somewhat parallel emergence of ‘material’ neoliberalism, and that a particular congruence between human rights and neoliberalisation has been strategically useful. Such congruences have, no doubt, made transitional justice’s eventual institutionalisation into formal networks of global governance possible. Having covered this ground,it is now possible to return to the Girardian element of the thesis and to show how this historical excavation has a bearing on at least two of the previously problematised aspects of Girard’s work: the problem of undifferentiation as a ‘natural’ concept and the problem of the accusatory narrative as a concept which is evacuated of politics and power.
I start with undifferentiation, which Girard (2005 [1972]) problematically positions as the result of mimetic rivalry, an essentialised and inescapable human condition. In contrast, I argue that if transitional justice is an apparatus then the moment of crisis or undifferentiation should be understood as the product of a discursive regimen, which is laid over the historically situated contexts of ‘transition'. In these moments of societal breakdown, meaning is woven together by the socially and historically
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embedded discourses deployed through the institutions of transitional justice. From this brief investigation of the history of transitional justice, it is possible to see that the apparatus intervenes both to conceptualise and to resolve the crisis of mass violence. Here, violence is conceived as undifferentiation in a construction that is facilitated by the discourses of human rights and of (neo)liberal democracy.
From this perspective, undifferentiation is not a timeless and universal concept, the constant replaying of a mimetic violence which destroys the community. Rather, transitional justice utilises human rights to problematise the past and the idea of (neo)liberal democracy as an idealised vision of the future. In doing so, the very idea of undifferentiation is conceptualised by transitional justice as a pure dissembling of civilisation understood narrowly by the parameters set by these discourses. In this respect, I sympathise with Michael Neocosmos (2011, p. 361), who has argued that transitional justice provides a framework where ‘what appears to be ‘the past’, seen as an undifferentiated whole, is simply defined negatively in relation to an idealised (future) state of affairs.’ Simply put, the combination of parliamentary politics and neoliberal economics marks the normative principle of civilisation, and human rights becomes a conceptual tool designed to problematise contexts that don’t adhere to those civilisational norms.
In this respect, human rights discourse provides a remarkably supple conceptual terrain, which in differing ways provides a vision of undifferentiation that is conceptually sound in both the post-conflict and post-totalitarian transitions, which the apparatus serves. In the case of post-totalitarian transitions, this can be understood with reference to the savages, victims, and saviours metaphor forwarded by Mutua (2001). For Mutua, the discourse of human rights creates a binary between a savage state and a victim who is subject to its abuse. In the savages/victims
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opposition, Mutua (2001, p. 202) argues ‘the human rights story presents the state as the classic savage, an ogre forever bent on the consumption of humans.’ On the other hand, the victim is ‘a powerless helpless innocent whose naturalist attributes have been negated by the actions of the state.’ (ibid., p. 203) Importantly, the powerlessness of the victim makes an intervention from NGOs, international institutions and even western governments, an ethical imperative. These predominantly Western forces constitute the Saviour, ‘the good angel who protects […] the victim’s bulwark against the tyrannies of the state.’ (ibid, p. 204) The victim is the nodal point which at once attests to the savagery of the state, and justifies the intervention of a saviour.
But for Mutua, more than just describing the real, material phenomenon of the ‘bad’ state and ‘good’ interventionists, the metaphor of the savage state and the western saviour describes the binary opposition between two socio-political formations which these agents represent. The resonances between human rights and neoliberalism as bearers of a critique of totalitarianism should therefore be emphasised here. Human rights discourse constructs the totalitarian state as an active, undifferentiating agency because it produces an interstitial position between ‘nature’ and ‘civilisation’. In the context of a hegemonic neoliberal rationality, one which stands in for ‘the West’, human rights discourse provides proof of the deterioration of society as the result of a ‘totalitarian’ antagonism that operates differently from the (neo)liberal norms that constitute ‘civilisation’. Simply put, the practice of delegitimising states by showing their ‘totalitarian’ recourse to violence, provides evidence of the dissembling, undifferentiating effect of the totalitarian state on ‘civilisation’.
Secondly, In the case of post-conflict contexts, human rights discourse provides a concept of undifferentiation that conforms to Girard’s differential inside/outside
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dynamic which was briefly outlined in the previous chapter. To the parties involved on the ‘inside’ a conflict will probably be marked by the absolute difference between each faction, at the level of ethical and political values. In other words, ‘from inside, sameness is not visible.’ (Girard, 2005 [1972], p. 168) Human rights, however, provides a perspective ‘from the outside’, ‘which takes into consideration the reciprocity,’ of violence (ibid.). It does so by articulating an ethical position that foregrounds the rejection of violence over the political circumstances in which that violence takes place.
Alain Badiou (2001, p. 9) has criticised human rights for precisely this problem, arguing that its ethical demand to stop suffering leads to situations in which ‘politics is subordinated to ethics.’ As the case studies will point out, the result is that both sides are equally denigrated as rights abusers, regardless of their political coordinates. In this way, undifferentiation is constructed through a human rights framework not only in terms of the dissembling issue of mass violence, but also as the becoming sameness of political opponents, who are now conceptualised as undifferentiated by their mutual engagement in rights abuse.
Mutua (2001, p. 204) argues that, in response to this problematisation of ‘undifferentiating’ violence, the human rights project ‘is both anti-catastrophic and reconstructive.’ It is anti-catastrophic because it intervenes to stop more human rights calamities. At the same time, in advocating and constructing a (neo)liberal future, the human rights project is also reconstructive because it seeks ‘to re-engineer the State and the society to reduce the number of victims, as it defines them.’ (ibid.) The narrative, then, is one in which the savage state produces victims, forcing a saviour to intervene. The saviour’s intervention is a long-term strategy; one of cleansing the state of its savagery and instrumentalising it for a neoliberal project. In placing itself at a
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threshold which claims to deal with the savage past and to make concrete gains towards the (neo)liberal democratisation of the state, transitional justice plays an integral function in this project.
As a consequence of this analytical framework, these discourses are also brought to bear on techniques of sacrificial violence themselves. Human rights frames the crisis in a particular way, as the problem of mass physical violence, an individualised problem of criminal activity which implies individual liability for the crisis. In this sense, the question of responsibility is produced through human rights discourse, which provides the frames of reference that articulate, identify, or reify a scapegoat. For example, the problematisation of conflict in terms of human rights abuse brings legal knowledges into play, themselves liberal in nature. As Teitel (2014, p. 20) argues, these might advocate trials and tribunals on the basis that they ‘bring out the significance of individual action,’ and ascribe individual criminal responsibility.
In other words, if human rights discourse provides an analytical framework of undifferentiation, then it also provides the framework for a process of redifferentiation; the value of its discourse is its ability to identify the source of evil as a scapegoat – real or figurative – and whose expulsion propagates redifferentiation. Just as human rights inscribes its definition of evil into each post-conflict context, transitional justice intervenes to identify, delegitimise and eradicate its author, real or figurative; material or symbolic. In this way, transitional justice mechanisms become strategically useful, providing forms of sacrificial violence that articulate a new logic of difference constructed through the difference between a society and its scapegoat. They provide a foundational logic of difference between good and evil; past and present; society and its other.
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This also opens up another set of questions. If the question of responsibility is already circumscribed by discourse, then how are these particular discursive conditions brought to bear on transitional contexts through practice? To put it another way, this investigation has already discovered a history of transitional justice and its relationship to politics, but what is missing is the way in which practices of power act upon these contexts and direct a ‘community’ towards the selection of particular scapegoats. How does knowledge (human rights etc.) engender practices, which constitute certain subjectivities and subjective relations that give shape to the sacrificial violence of the mechanisms of transitional justice? Finally, what is the relationship between these practices and the neoliberal transitions in which they exist. These questions animate and shape the conditions for the investigations of the next chapter.
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