Transitional Justice, Race, and the United States

Since the brutal murder of George Floyd at the hands of the Minneapolis police on May 25, denunciations of slavery and racism have gone mainstream. Increasingly, so have suggestions for new mechanisms of justice and accountability for the United States. On June 1, Rep. Barbara Lee (D-Cal.) introduced a resolution to form a U.S. Commission on Truth, Racial Healing, and Transformation. A few weeks later on Juneteenth, New York City Mayor Bill de Blasio established a Racial Justice and Reconciliation Commission. Calls for truth commissions, accountability, and the need for healing and reconciliation in the United States are circulating on social media, blogs, and in newspapers. More likely will follow.

Transitional justice seeks truth, accountability, reparation, and non-recurrence in the aftermath of massive human rights violations. Its institutions range in scope and subject but share a commitment to reckoning with the past and reconstructing for the future. Its attraction for the current moment is undeniable: the United States, which traditionally exports justice and human rights while avoiding accountability for its homegrown injustices, has become the subject of both national and worldwide attention, condemnation, and protest for its racialized violence. Activists and advocates are right to imagine the potential for institutions that could memorialize the past, hold individuals accountable, and offer succor to victims of human rights violations. Does transitional justice provide the appropriate tools to address events that are simultaneously of the past and present?

Today’s protests are a response to both immediate police brutality and entrenched white supremacy in the United States. They take place in a context of drastic unemployment; the uncertainty of a spectacularly mismanaged public health catastrophe that has hit communities of color harder than others; and a presidency that has glorified violence against protesters. These realities, of course, have a deep history and are inseparable from the enslavement, dispossession, and disenfranchisement over centuries of Black Americans through law, politics, and economy.

Despite the specificity of U.S. history, the issues at stake resonate with questions of violence, race, and exclusionary politics around the world. As a scholar of transitional justice, I am heartened by efforts to de-exceptionalize the United States and to bring race and anti-Black racism into conversation with international law and justice mechanisms. At their best, such efforts could help to expose and clarify the legal and political structuring of white supremacy, connect it to global structural inequality, open up narratives of American suppression and repression, and link today’s racialized inequality and violence with their long histories. They could help make discussions of reparation and repair real. Yet these fields have their own limitations and blind spots, particularly when it comes to questions of material redistribution and racialized inequality.

The following five points comprise a preliminary effort to inject a note of caution as well as hope to these discussions.

  1. Near and Distant Pasts

Ironically for a field focused on the past, transitional justice has had difficulty assessing historical injustice. Whereas transitional justice as a field pays close attention to recent, proximate harms, particularly against physical bodies, it has often overlooked slavery and colonial violence and dispossession. More generally, it has left unanswered questions about accountability, responsibility, and reparation for violence that occurred decades or centuries ago. International reports or courts only infrequently trace causal chains from land grabs by colonial authorities, to postcolonial land inequalities, to contemporary mass violence. It has become increasingly common to see calls in the transitional justice literature to address socio-economic rights, resource exploitation, and corruption. The results have been mixed, but to address situations like today in the United States, one would need to go even further, to consider racial capitalism, colonial exploitation, and dispossession.

Moreover, the line between past and present is none too clear. First, one group’s historical violence is another person’s current lived experience. The murders of Ahmaud Arbery and George Floyd were not, for many, “like” or “reminders of” a lynching; they were, in fact, lynchings. Second, as the Movement for Black Lives and others have pointed out, high Black mortality rates, material inequality and police violence are hardly new. To the contrary: today’s police brutality has a long history in slave patrols, exploitation, and domination of marginalized groups. Today’s racialized inequality in the United States dates to the country’s theft of Indigenous lands and its dependence on the institution of slavery. The past, then, may not be past at all.

When that past does appear, it is fundamentally contested – in ways that have real legal, financial, and political stakes. The protests expose an ongoing battle over divergent historical narratives of the United States: as a basically liberal state which progresses toward inclusion with occasional hiccups (such as the election of Donald Trump) and violence along the way, or as a fundamentally oppressive state predicated on the economic, legal, and physical repression of groups deemed inferior or outside the body politic. The progress narrative version of history paints state violence and inequality as episodic rather than continuous, as chaotic rather than structured, and as spontaneous rather than stable. It makes reform plausible and structural change unnecessary. The second version contextualizes reform efforts as part and parcel of a fundamentally unjust system.

These narrative battles unfold in the courts as well as in articles, blogs, and social media. Supreme Court decisions, for instance, that have limited affirmative action on the grounds that all race-based discrimination offends the Constitution equally, rely on a historical narrative of gradual improvement and a valorization of “colorblindness.” U.S. judicial opinions have sometimes invoked histories of oppression to highlight the continuity of racial inequality, but explicit references to slavery, Jim Crow, and racial terror have either retreated or served as exemplars of progress over time. Procedural hurdles to reparations – making them appear legally implausible – reflect the biases of a legal system tilted toward those with property, resources, and access. Moreover, those hurdles obscure the biases by steering the discussion toward statutes of limitations or doctrines of standing and away from history and repair.

Thus, we find ourselves caught between a set of international tools developed to deal with a recent, partial past and a set of domestic legal doctrines that reinforce racialized inequality. Neither provides an answer on its own, but each suggests the gaps to be filled. Together, they reveal what happens when confronting today’s inequalities without engaging the oppressive past, as well as what is lost when the past is memorialized without confronting today’s inequalities.

  1. Spectacular and Structural Violence

Many activists highlight that the spectacle of today’s protests and the shocking images of brutality come on top of daily, structural, and systemic racialized violence. The contrast between spectacular and structural violence is familiar in the human rights and transitional justice worlds. Why do some forms of violence appear more serious than others and what are the consequences for attending to racial (in)justice?

Hierarchies of suffering, rights violations, and violence are implicit in human rights and international criminal law – whether in the “gravity” standard by which crimes enter the scope of the International Criminal Court, the longtime privileging by major Western nations and human rights NGOs of civil and political rights over economic and social rights, or the definition of jus cogens norms. International criminal law tends to see the “worst” violent acts as spectacular, physical, and rapid. Courts have generated historic judgments that punished individual perpetrators, but have often left untouched the realities their crimes wrought and the catastrophic conditions from which they sprang. A system in search of individuals who aimed to destroy large numbers of people based on their ethnic, religious or national group is likely to find them. It is far less likely, however, to expose slow, structural, or economic violence.

A concern with spectacular physical violence tends to prioritize higher short-term death tolls over prolonged violence. The conjuncture of police brutality and the COVID-19 pandemic throws this problem into sharp relief: Black communities in the United States simultaneously suffer from individual police killings and higher overall death tolls due to poverty, lack of health care, and food insecurity, among other reasons. Disparities in food, work, health, property, and access did not emerge sui generis; they are structured by law. This is not to reduce focus on the horrific murder of George Floyd and so many others. It is to draw attention to the ways in which law and policy distribute death unequally – and to the fact that those deaths can take seconds, more than eight torturous minutes, years, or generations. When it comes to memorializing, accounting for, or telling truth about violence, interpreting it as sporadic or sudden obscures the historical, economic, and legal roots of racially unequal morbidity and mortality.

  1. Absence of Race

Both academically and institutionally, race has long been overlooked or obscured in international law and justice. The South African Truth and Reconciliation Commission (TRC), considered for many years the ideal example of a transitional justice mechanism, failed in some ways to grapple with the most central aspect of apartheid: race. The TRC pursued gross violations of human rights, not the system of apartheid itself. The result – not the sole responsibility of the TRC but inseparable from it – is a continuing struggle over the past and present of race, material inequality, and colonialism in South Africa. The absence of race is marked in international law and justice practices more broadly; all too often, when it does appear, it focuses on the critical but partial area of intentional discrimination. Certainly, some scholars, experts, and activists have connected the dots among racial oppression, legal institutions, rights and justice; the United Nations Human Rights Council Special Procedures experts recently issued a blistering statement on U.S. systemic racism and its structural, economic, and gendered nature. Moreover, the community-organized Greensboro, North Carolina Truth and Community Reconciliation Project addressed directly the role of police in facilitating anti-Black violence by White supremacists and the role of race in unequal justice. Nonetheless, race is too often absent, and racial oppression is re-described (and re-inscribed) in other terms. Some activists rightly fear that calls for “healing” or “reconciliation” could yield minimalist change rather than radical restructuring. Too often, truth has been partial, justice narrow, and reformism inevitable. Dealing with the long history and continuity of racial capitalism and oppression in the United States would require centering race itself.

  1. Whose Voices are Heard

Centering race means, among other things, paying close attention to the voices of those experiencing violence as well as to who is heard as an expert on remedies for that violence. Here too transitional justice’s record is mixed. Victims have been both central and external to the design and practice of justice. Their wishes have been cited as justifications for the enterprise as a whole and for particular institutional choices (such as prosecutions) but have been disregarded when resisting dominant norms. Both human rights and transitional justice practitioners, with the best of intentions, have recorded the stories of victims only to leave them materially distressed and portrayed as disempowered.

Too often, external experts import international justice practices to a given context. The expert is rendered as objective, apolitical, lawyerly; the local as biased, politicized, and naive. Expertise and knowledge extraction play out across a “North-South gap” into which issues of colonialism disappear and from which the necessity of decolonizing transitional justice itself emerges. In the U.S. context, the particularities of that gap will be different, but the dynamic of extraction could potentially persist.

Centering Black voices would require bridge-building between those who focus on race in the United States and those who think about justice internationally, as well as between those of all races whose expertise includes establishing commissions, designing reparations, and conceptualizing justice and those whose expertise includes living in a Black body in a racist, violent, unjust society. We should be concerned about how past and present violence could be metabolized into an international truth and justice system that is well-practiced at recommendations, consultations, and reports gathered and given by those who do not experience the violence themselves. As with other decolonial practices, this will require the redistribution of knowledge, power, and authorship.

  1. Transition and Stability

A central strand of transitional justice relied on a positive assessment of liberal democracy, not least for its anticipated stability, bolstered by the rule of law. The transitions in question were away from human rights violations under authoritarian rule and toward a just future in a liberal democracy. The transitional moment in such contexts was necessarily but temporarily destabilizing; justice was meant to re-stabilize the situation. As transitional justice has expanded to other contexts, the general preference for stability remained, even if occasional, short, and infrequent interruptions may be necessary. With stability among the goals of the transitional justice enterprise, apparently stable liberal democracies like the United States, whatever their flaws, weren’t seen as candidates for national transition.

Today that logic seems problematic. On its own terms, the stability argument feels less certain. It is no longer a foregone conclusion that President Trump or his followers would accept a losing result in the November presidential election. The combination of public anger, ongoing police brutality and the intense media coverage it is now receiving, mobilization of the military by Trump, high unemployment and shuttered schools due to COVID-19, and widespread gun ownership particularly among white supremacist groups, could spark multiple forms of violence and destabilization.

Perhaps more germane, stability is not inherently positive. The assumption that stability is less dangerous, violent, or threatening than instability in an ostensibly liberal democratic state is just that: an assumption – and often one tilted towards the privileged. In the United States as elsewhere, stability itself can be radically violent: for communities of color that live under perpetual threat – whether of police brutality, economic dispossession, food insecurity, criminal violence, or immigration raids, to name a horrifying few – the fact that the system has habitually absorbed previous convulsions is itself the problem.

In the End: Remembering and Redistributing            

Placing the recent murders of Black Americans and the resulting uprisings in both a global and historical context would allow us to reframe them in the context of transnational racialized violence and of long-term structures of colonial theft, inequity, and violence. International tools, if used well, have the potential to highlight violence against Black communities and to reveal the influence of the past on the present. Such an exercise could de-exceptionalize the United States, spurring an examination of its violent, exclusionary historical record. It could enable projects of memorialization, education, and historicization that would make it less plausible to deny the American project’s racial structure or reduce it to tales of sporadic brutality.

There is no question that moving forward requires looking back. But reckoning with the violent past requires more than memorialization or even accountability. It requires redress, redistribution, and restructuring. Transitional justice is no silver bullet, but an awareness of its limitations might help to transcend them. The stakes of linking inequality and justice in the present to violence and dispossession in the past are high. Our tools are not as robust as we might like for addressing how understandings of the past inflect current struggles over rights and redistribution. That the field’s blind spots have persisted reflects not parsimonious expert choices but implicit biases. These will need to be remedied, lest we continue to imbue notions of harm, gravity, conflict, and stability with the same inequalities and violence that they are meant to address.

Image – A garden around a makeshift memorial to George Floyd, built by a nonprofit youth empowerment group, is pictured near the site where he died in police custody, in Minneapolis, Minnesota on June 17, 2020. – George Floyd’s May 25 death in police custody has ignited a wave of protests for racial justice and police reform across the United States. (Photo by Kerem Yucel / AFP)

 

About the Author(s)

Zinaida Miller

Zinaida Miller is Assistant Professor of International Law and Human Rights at the School of Diplomacy and International Relations at Seton Hall University, where she researches and teaches human rights, transitional justice, international criminal law, and public international law.