International Human Rights Law Review Volume 1, Issue 2, pages 237- 275
..
Feminism, Postcolonial Legal Theory and Transitional
Justice: A Critique of Current Trends
Khanyisela Moyo
Lecturer, Transitional Justice Institute, School of Law, University of Ulster, UK,
k.moyo@ulster.ac.uk
ABSTRACT
Inspired by feminist legal theory and postcolonial literal studies this article interrogates
the ‘transitional justice discourse’ and coins critiques which re-examine the discipline’s
key tenets; namely, democracy, liberalism, rule of law and human rights. It argues that
while transitional justice can be seen as one of the masculine human rights strategies
that are reminiscent of imperial intervention in the lives of postcolonial subjects, it is
open to seizure by the same. This is possible in transitional contexts since these
situations create opportunities for stakeholders to rethink the inadequacies of the
accepted discourse, and to subscribe to new ways of seeking justice.
Keywords
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transitional justice,
postcolonial and feminist legal theory,
democracy,
liberalism,
power,
human rights,
justice
INTRODUCTION
[S] ome of us, who adopted more radical approaches, albeit still within Western
traditions, did not perhaps subscribe wholly to Thompson’s thesis that the rule of law
was an ‘unqualified good’. Yet we, too, saw in bourgeois law and legality, space for
struggle to advance the social project of human liberation and emancipation. Law, we
argued, was a terrain of struggle.
1
International law has distinguished liberal democracy as the ideal embodiment of
national governance for societies making the transition from war or authoritarianism
towards peace, rule of law and respect for human rights. 2 In such a passage,
international law has also prescribed that societies ought to adopt a variety of measures
for, inter alia, restoring the rule of law, in tandem with reforming tainted institutions,
repairing the past, reconciling divided communities and preventing future human rights
abuses. 3 Further, international law has demanded that a gender perspective ought to be
mainstreamed in all transitional justice approaches. 4 Since most alleged dictatorships
and the majority of wars that international legal scholars have focused on have been in
former European colonies, it is those states that frequently resort to transitional justice,
albeit, with limited success. 5
In the plentitude of treatises on transitional justice, oddly limited assiduity has been put
to the issue of the imperial origins and bias of international law and how this might be a
major contributor to postcolonial societies’ failure to meet the goals of their transitional
justice endeavors. 6 A recent comparative study conducted by the International Centre
for Transitional Justice (ICTJ) on the experiences of a number of Sub-Saharan African
countries’ transitional justice processes pins the limitations of these attempts on the
shortcomings of those states’ institutions. 7 These states’ colonial heritage is a mere
footnote to this thesis, particularly noted as one of the factors that contribute to
institutional weakness.
8
On this note, and in relation to the African postcolonial state, John Mukum Mbaku
attributes institutional failure to an elite driven constitutional legal framework which
lacks local legitimacy as it enshrines the values of former colonial masters and not those
of the local communities which those rulers sought to govern. 9 The euphoria of
independence is said to have prompted Africans to suspend representative constitutional
making until their liberation and the acquirement of government machinery by the local
elite. Democratic constitutionalism, that is, involving local stakeholders in the
reconstruction of a new constitutional order is therefore seen as key to allaying citizens’
perceptions of their laws and institutions as foreign precepts intended for their
exploitation and marginalization.
10
The participatory constitutionalism argument is inconclusive and can even be said to be
self-contradictory since the postcolonial state is itself a creature of colonialism, formally
liberated but mostly dependent on former colonial masters for aid, external trade and
foreign investment.
11
Most of the postcolonial states did not exist before colonialism.
Consequently, their boundaries are those which were carved by the former colonial
masters during colonialism.
12
These states are also likely to be governed by elites
schooled in western philosophies and languages.
13
External influence is inexorable in transitional context where attempts at democratic
constitutionalism are likely to be subjected to greater international scrutiny.
14
International experts often take leading roles in an array of postcolonial states’ post
conflict reconstruction programs, including, the drafting of new constitutions, negotiation
of peace processes, and institutional transformation.
15
Also, attempts at democratic
constitution making are likely to be led by those local elites who were trained in foreign
institutions.
The use of foreign philosophies and actors is based on the conventional understanding
that international human rights law is neutral. In the passage from war/authoritarianism
to a democratic regime, international law which is presumed to be detached from the
actors in the conflict plays a crucial role of relegitimating the domestic legal system
which is likely to be suffering from a crisis of legitimacy.
16
This role is paradoxically since
in its implementation, international law has been critiqued by feminist and postcolonial
scholars for being based on self-interest, illegitimate, masculine and predisposed
towards power.
17
Against this background, this article contests claims to universality by Eurocentric,
masculine, elitist and peremptory accounts which dominate the legal scholarship that
form the normative basis for transitional justice.
18
In doing so, it derives inspiration from
postcolonial legal theory taking into cognizance relevant feminist concerns.
19
Postcolonial
legal theory is a discourse of resistance which confront the colonial strategy of othering
by countering it with the narratives, histories and personal anecdotes of the colonized.
20
Of course, postcolonial legal theory is neither fully developed nor monolithic and this
work does not claim profound eruditeness on the subject.
21
Rather, it draws insight from
those postcolonial legal theorists whose ambitions are to revolutionalize international law
from being a discourse of oppression to one of liberation.
22
The article proceeds as follows. Section 2, presents the conventional notion that
transitional justice’s final ends are liberalization, democratization, strengthening the rule
of law and the socialization of human rights norms. Section 3 introduces feminist
interventions, successes and controversies. Section 4 provides an overview of
postcolonial legal theory and its relevance to the subject matter. And finally, Section 5
attempts to present a postcolonial legal feminist understanding of transitional justice.
WHY TRANSITIONAL JUSTICE?
2.
Transitional justice has come to presage an array of legal and political processes that are
employed to undo a past and build a better future in the passage from war to peace or
authoritarian rule to democracy.
23
An understanding of the ‘transition’ and ‘justice’ parts
of the term can help in shedding some light on the aims of transitional justice. The writer
is aware that a similar analysis has been made to try and address disagreements which
persist in academia on the timing of and the choice of mechanisms which constitute the
field of transitional justice.
24
These questions have stirred the interests of lawyers, historians, anthropologists and
political scientists alike.
25
One could cynically state that there was historically a tacit
arrangement between lawyers and non-legal social scientists that since the former
belong to the field of justice they should confine their efforts to that area.
26
This is
evidenced by the paucity in legal writing on the ‘transition’ part of ‘transitional justice’
which Christine Bell cynically refers to as the colonisation of law by other disciplines.
27
Thus, the discussion below draws on writings by political scientists for clarity on the
definition of ‘transition.’
28
This article will not address the question of which mechanisms
make up the field of transitional justice nor will it address issues of timing. It restricts
itself to an analysis of democratisation which the dominant literature considers to be the
final aim of transitional justice.
29
In this regard the article adapts Pablo De Greiff’s normative conception of transitional
justice.
30
De Greiff states that whereas providing recognition to victims and fostering
civic trust are the two urgent goals of transitional justice, the long term goals are
democratisation and reconciliation.
31
This critique will focus on one of the final goals of
transitional justice, namely, democratisation. Hopefully, future postcolonial feminist
critiques will cover the other three goals.
2.1 Transition
[T]he notion of transition implies that there is a shift from conflict to peace. But how is a
state of conflict defined? What if there is a conflict as to the nature of the conflict? When
and how does conflict become peace? Is peace defined by the rule of law and liberal
democracy?
32
The classical political science definition of transition is that of O’Donnel et al’s which is to
the effect that transition occurs within a circumscribed duration linking two regimes – an
authoritarian regime and a liberal democratic dispensation. 33 The idea of transition as
being a bounded period that separates two regimes does however not sit well with those
mechanisms which are adopted long after the shift from one political regime to another.
This has led to a dissident contention that ‘transition’ is not just a bounded period that
separates two regimes but a unique journey without a marked destination. 34
It is contended that although transitions can be perceived as sustained processes, the
focus is mainly on constitutive historical periods, for example Chile after the rule of
General Augusto Pinochet in 1990,
rule in 1995,
36
35
South Africa’s passage from apartheid to majority
Rwanda after the 1994 genocide
Good Friday Agreement.
37
and Northern Ireland after the 1998
38
Political scientists have also noted that transitions are not peculiar to non-democratic
regimes.
39
They have drawn a distinction between a transition to democracy and a
transition to a consolidated democracy.
40
Further parallels have been made between a
democratic government and a democratic regime.
41
‘Regime’ is said to be an expansive
term that refers to both formal and informal rules that govern the way major actors
interact in the political system.
42
Related academic polemics on this issue cannot be exhausted in this limited study.
Notable ones include debates on the distinction between liberalization and democracy
and debates about the concept of democracy itself.
43
This article does not seek to delve
into all these political theories but works from the premise that there are two kinds of
democracy, namely, procedural and substantive democracy.
44
The working understanding of a procedural liberal democracy is that it has three
characteristics.
45
The first feature is that the principal route to an office whether
legislative or presidential ought to be through free and fair elections. The second one is
the idea that those elections ought to take place in an environment where there is a
broad universal suffrage; exclusions should be justifiable. An example of a condonable
debarment could be that of the mentally unsound and criminals. Thirdly, there ought to
be guarantees for human rights for all, including women and minorities.
46
Substantive democracy is understood as a scheme whereby ‘the general public’ redefines
the very makeup of the government.
47
This entails the basic rights of citizens, prescribes
their ideas of justice, and encompasses understandings on property rights amongst other
entitlements and duties.
48
This is the type of democracy that poses more challenges in
most transitional societies.
Liberalization is understood as freedom from repression and the socialization of human
rights norms within an authoritarian establishment.
49
Thus the working definition for
liberal democracy is not confined to mere demands for elections but the requirement
that human rights ought to be respected, protected and fulfilled.
50
There has been a vast amount of literature produced by political scientists on this issue.
Those relevant to this article are the contributions which sought to explain the
relationship between the type of transition and the justice mechanisms employed.
Perhaps the most authoritative discussion on the subject is Huntington’s distinctions
between responses in transitions led by the elite of an old regime (transformations),
those forced by the opposition force on the elite (replacements), transitions that are a
result of negotiated settlements (transplacements) and those that have been imposed by
foreign nations.
51
Huntington asserts that ‘the distribution of power during and after
transition and not moral considerations have a greater bearing on the mechanisms that a
country or region employs in the aftermath of a conflict.
52
For example, the possibility of
prosecution often presents itself in transitions where the authoritarian regime has totally
collapsed and has been replaced by the opposition and not where the old regime’s elite
plays a significant role in the transitional process.
53
As this implies, the legal responses employed in the aftermath of a conflict are a product
of the political transformation.
54
This understanding can be contrasted with the idealist
perspective that bases transitional legal responses on universal notions of justice.
55
An
elaborate discussion of this issue is beyond the scope of this section of which the main
interest in the work of political scientists is in seeking clarification of concepts.
56
A much
more structured discussion on the role of law in transition will be reverted to below in
the analysis of legal renditions on the subject.
57
2.2 Human Rights, Transitional Justice and Democratisation
In common with political scientists, celebrated legal commentators on the subject, view
the term ‘transition’ as referring to periods of democratization or liberalization.
58
Liberal
democratization is perceived to be coterminous with the; ‘socialization of human rights
norms into the domestic practices’ of norm-violating states.
59
Indeed, human rights and democracy are interdependent.
This is seen in that, not only
60
is a democratic political establishment an unparalleled guarantor of human rights,
democracy itself is a human right.
61
However, this is not to say that by definition human
rights and democracy are conjointly collegial. While a democratic government or at least
an egalitarian democracy might be the best defender of human rights,
concepts come from two different theoretical foundations.
62
the two
63
Nonetheless, Professors Ni Aolain and Campbell have taken issue with this traditional
approach that largely focuses on a movement from illiberal rule, referring to these
transitions as ‘paradigmatic transitions’.
64
To them a legacy of human rights abuses may
exist in states that are broadly democratic.
65
They draw from the case study of Northern
Ireland, a ‘conflicted democracy’ that the United Kingdom, a democracy, had allowed to
exist within its borders.
66
Thus, they argue, with the aid of human rights provisions on
derogations and applicable humanitarian standards, ‘that existing transitional justice
discourses combine at least two kinds of transitions – that from -authoritarianism to
democracy and that from war to peace’.
67
They state that the case of Northern Ireland, a
‘conflicted democracy’ involves a move from war to peace and is not a ‘paradigmatic’
case of a transition from authoritarianism to democracy. It involves an advancement of
democracy rather than its launch.
68
An alternative perspective might be to draw a distinction between a regime and a
government, that is, to treat the broadly democratic United Kingdom government and
the Northern Ireland regime as two separate political establishments. To the extent that
the informal and formal rules governing the main political actors in Northern Ireland
were incompatible with contemporary procedural democratic standards, the Northern
Ireland regime could be said to have been authoritarian. For example, the Ulster Unionist
Party was accused of gerrymandering electoral borders and introducing voting rights
based on economic status.
69
Consequently the elections in the polity were not free and
fair and there was no universal suffrage, as the exclusions, which were largely sectarian
could not be said to be justifiable.
70
One can also draw from political scientists’ distinction between the move to democracy
and the consolidation of democracy.
71
If the Northern Ireland example demonstrates a
deepening of democracy rather than its introduction, as Professor Ni Aolain and
Campbell assert, then it fits the paradigmatic model. It is a transition to a consolidated
democracy.
72
The Northern Ireland experience does however have some distinguishing features. In
Kritz’s case studies no analysis was made of regimes that were moving out of colonial
rule or rule by foreign powers (transitioning to independence), or those countries whose
problems could be attributed to a failure of decolonization (an issue that is a concern of
this work).
73
Northern Ireland would not indeed fit the paradigmatic model since the
conflict is not an internal conflict in the strict sense. It is a conflict that is peculiar to
post-colonial societies, where there is even a conflict about the conflict itself (metaconflict).
74
Thus this work construes Northern Ireland as a good example of how the
hazards of decolonization continue to have an influence on postcolonial societies.
These nuances however, do not wholly contest the notion that liberalization and
democratization are transitional end goals.
75
Since democracy is said to be contingent on
the law, legal scholars focus on the legality of the outgoing regime’s actions.
76
Closely
tied to this issue is the question of the role played by the law in the passage to a liberaldemocratic state.
77
A post-transition regime’s illegitimacy is evident in the general discontent within the
population, with its laws and institutions.
78
It is also usually characterized by wide-
spread and largely state orchestrated human rights abuses.
79
Often, the state does not
acknowledge the existence of these human rights abuses. Instead of respecting the rule
of law, it ‘rules by law’ seeing the law as imposing obligations on the citizens and not on
the regime itself.
80
In view of this outlined complicity of the law in periods of repression, legal undertakings
in transitional times are complex.
81
This issue has been traditionally explored from
realist, idealist, critical and liberal theoretical perspectives which largely focus on the
relationship between law and politics.
82
Ruti Teitel however, has adopted a pragmatic
approach, which points out that there is a dialectical relationship between law and
politics in transitional times.
83
Law in times of transition is not just a product of political
change, it, actually provides a framework for the transition.
84
As Teitel notes:
[L]aw is caught between the past and the future, between backward looking and
forward-looking, between retrospective and prospective. Transitions imply paradigm
shifts in the conception of justice; thus law’s function is inherently paradoxical. In its
ordinary social function, law provides order and stability, but in extraordinary periods of
political upheaval, law maintains order, even as it enables transformation. Ordinary
predicates about law simply do not apply. In dynamic periods of political flux, legal
responses generate a sui generis paradigm of transformative law.
85
Thus, while heralding and sticking to the new liberal regime’s undertaking to abide by
democratic and rule of law principles, law in transitional contexts authenticate a
demarcation between the outgoing regime and the new dispensation. 86 Since domestic
law is often politicized, international human rights law, by virtue of its supposedly
neutrality and externality to the conflict, plays a significant role in otherwise issues of
national sovereignty. 87 It preserves the ordinary meaning of the rule of law, which
entails notions of continuity and certainty that are often absent in the outgoing regime.
Indeed, human rights law structures transitions in three different ways. Firstly, it
provides the normative basis for political transformation.
89
Secondly, human rights
norms and institutions underscore the illegitimacy of the prior regime.
90
Thirdly, human
88
rights law is instrumental in advancing the political transition.
91
Put simply, different
mechanisms employed in the aftermath of repression are based on international human
rights convictions. Consequently, in challenging states to stop, delve into, penalize,
mend and forestall human rights abuses, scholars and practitioners rely on international
humanitarian law and international human rights.
92
2.3 The ‘Justice’ part of ‘Transitional Justice’
Issues of justice crop up in different contexts.
93
In the case of transitional justice it is
within the situation of a new regime coming into power by replacing a former repressive
one.
94
The outgoing administration often has a legacy of human rights violations.
95
This
explains why the vast literature on the subject has focused on different mechanisms for
combating impunity.
96
However a number of key studies spread across different
disciplines are of the view that ‘justice’ in a transitional context incorporates a totality of
reform strategies that deal with the previous regime’s injustices.
97
According to the political scientist Nancy Fraser, one of the major dilemmas of justice
projects is in striking a balance between commitments to redistribution and recognition.
98
Thus within the context of transitional justice, ‘ justice’ as recognition may involve
prosecutions, the creation of truth commissions or commissions of inquiry whose role is
to recognize and acknowledge the atrocities of the past regime.
99
By contrast, justice as
‘redistribution’ seeks to re-order property or land rights and can symbolically redistribute
shame, from the victim to the perpetrator.
100
Much more broadly and directly, Rama Mani has addressed the ‘justice theory’ in a post
conflict dispensation.
101
She identifies rectificatory, legal and distributive justice as the
three dimensions of justice that must all be pursued at the transitional moment.
102
Rectificatory justice concerns redress for the explicit human outcomes of conflict
structured in gross human rights abuses, war crimes, crimes against humanity and other
injustices inflicted upon human beings.
103
Legal justice addresses the notion of the
establishment of the rule of law that often loses its legitimacy, deteriorates or is
destroyed both during and after a conflict.
104
Distributive justice focuses on economic
and political inequalities, which are seen as the root causes of most conflicts.
105
This is in line with Ruti Teitel’s expansive approach to the discourse, which delineates
criminal justice, historic justice, reparatory justice, transitional constitutionalism, and
legislative and administrative responses as various legal approaches to injustices in the
passage from repression to a liberal democracy.
106
She stated that:
[A]djudications of the rule of law construct understandings of what is fair and just.
Criminal, administrative, and historical investigations establish past wrongdoing.
Reparatory projects vindicate rights generated by past wrongs to victims as well as to
the broader society. Transitional constitutionalism and administrative justice reconstruct
the parameters of the changing political order in a liberalization direction.
107
This begs the question of why particular ‘justice’ mechanisms are preferred over others.
Perhaps the answer can be explained by Ruti Teitel’s genealogy of transitional justice. 108
This genealogy is structured in three phases; firstly, the post- World War II period in
which international criminal justice was invoked to deal with war crimes; secondly, the
end of the Cold War where transitional justice was tied to various nation-building
projects and thirdly, the contemporary era where the instability associated with
globalisation has normalised transitional justice. 109 Justice mechanisms currently adopted
are a conflation of the Nuremberg legacy of international accountability and the second
phase’s democratisation that focused on the rule of law applicable to political
communities and local perspectives. 110 Thus, the type of justice adopted is linked to the
appropriate definitive political context. 111
On this note, cognisance ought to be made of Fletcher and Weistern’s arguments that
justice needs to be both cemented on and focused on the communities, cultures and
contexts of the regime in transition.
112
Put simply, ‘justice’ in transitional justice is
largely dependent on context of the past injustices of the transitioning regime.
113
FEMINIST INTERVENTIONS, SUCCESSES AND LIMITATIO..
3.
3.1 Feminist expositions
Critical advances have been made by feminist scholars and activists in presenting
women as objects and victims of a discourse which was originally conceptualized by
men.
114
With regards to women as objects of transitional justice, it has been pointed out
that whereas in most societies women actively participate during the war or in the fight
against dictatorship, this role is weakened in transitional times when returning to
conventional practice entails the restoration of patriarchal values.
115
Thus women’s
concerns can be factored in by ensuring that women sit and participate in negotiating
tables that deliberate on the transition to an acceptable regime.
116
Feminists have underscored how foundational transitional justice concepts presuppose
male citizens thereby excluding women.
117
Some critiques have gone further to highlight
that liberal norms have been used to justify injustices in transitional contexts. An
example in this regard could be the case of women’s rights to property in South Africa in
the transition from apartheid to democracy.
118
Notwithstanding the inequalities and
historical injustices, the liberal understandings of the rule of law were invoked to deny
redistribution.
The rule of law has been presented as premised on male notions of law and governance
hence the failure by the envisaged liberal democratic state to liberate women.
119
Similarly, and in relation to women as victims, human rights law is said to be primarily
concerned with offering protection from state encroachment in areas that relate to men
instead of ensuring the inherent human dignity of all.
120
For example, human rights
violations that often dominate transitional justice mechanisms include forced
disappearances, extrajudicial killings and torture.
121
Notwithstanding the gravity of these
atrocities, along with their possible female victims, focus on these violations fails to deal
with the fundamental scope of human rights violations that women face.
122
These may
include uneven pain caused by internal displacement, loss of a family member and
violations of economic, social and cultural rights.
123
Cultural or difference feminists, in particular, stress that the human rights system has to
take into account women’s difference from men in at least three areas.
124
Firstly,
women’s biological difference to men makes them more vulnerable to sexual violence
and other acts of violence.
activities in the home.
126
125
Their parturition and breastfeeding role concentrates their
Consequently, women are less involved in public life.
127
On this
note, feminists decry the masculinity of international law which focuses on incidents of
violence in the public sphere, yet as Fionnuala Ni Aolain cautions, women’s experiences
of violence are in both private and public realms.
128
Secondly, not only do feminists aim at breaching the public/private dichotomy, they also
object to the hierarchy of rights.
129
Identifying violations of economic, social and cultural
rights as being central to women, they want them to be accorded the same status as
civil and political rights.
130
Thirdly, some feminists critique the liberal notion of human
rights which focuses on individual rights.
131
They argue that women are more inclined
towards their families and other social groups.
necessary.
132
Thus attention to collective rights is
133
3.2 Feminist Victories and Critique
In the 1990s there were major developments that significantly altered the attitude of
international law towards women in societies making the transition to a liberal
democracy.
134
While not adopted in relation to transitional justice at all, turning points
were marked by several moments including; the adoption of the Declaration on the
Elimination of Violence Against Women by the UN General Assembly in December 1993
and Vienna Declaration and Program of Action’s emphasis that:
[T]he human rights of women and the girl child are an inalienable, integral and
indivisible part of universal human rights,” [and that] “Gender -based violence and all
forms of sexual harassment and exploitation, are incompatible with the dignity and
worth of the human person, and must be eliminated.
135
At the same conference feminist also triumphed in their quest for economic, social and
cultural rights to be placed at par with civil and political rights when it was declared that:
[A]ll human rights are universal, indivisible and interdependent and interrelated. The
international community must treat human rights globally in a fair and equal manner, on
the same footing, and with the same emphasis.
136
Much more specific to transitional justice, at Beijing in 1995, the Fourth World
Conference on Women averred in its Platform for Action that:
[I]n addressing armed or other conflicts, an active and visible policy of mainstreaming a
gender perspective into all policies and programmes should be promoted so that before
decisions are taken an analysis is made of the effects on women and men, respectively.
137
This resolution prompted campaigns for gender mainstreaming in transitional contexts
through other platforms. 138 The significant success of these lobby efforts was the
adoption of the UN Security Council Resolution (UNSC) 1325. 139 This Resolution requests
particular efforts from the UN Secretary General, member states and those involved in
the conflict. 140 Apart from requiring that attention ought to be given to gender
mainstreaming and gender balance, it also stipulates that certain actions ought to be
taken. 141 These include, among others, ensuring increased participation by women in the
prevention, management and resolution of conflict, and that girl children and women
should be protected from gender–related violence. 142
8 years later the UNSC passed resolution 1820 (2008) which focused on ending and
preventing conflict related sexual violence and is considered to be the first recognition by
the UNSC of the nexus between gender based violence and international peace and
security.
143
Its implementation was improved by Resolutions 1888 (2009) which
allocated leadership and created actual support mechanisms.
144
In the same year, the UNSC passed Resolution 1889 which focuses on hindrances to
women’s participation in peace processes.
145
It suggests global monitoring mechanisms
for the implementation of Resolution 1325, and strengthening both domestic and
international reaction to women’s concerns in conflict and post-conflict contexts. This
was followed by Resolution 1960 (2010) which called for a cessation to sexual violence
against women and girls in armed conflict and provides mechanisms for ending impunity
for those who commit sexual violence, including sanctions and reporting mechanisms.
146
This increase in UN resolutions confirms the importance of gender to the transitional
justice discourse. Dianne Otto has however noted that the UNSC may be selectively
engaging with feminist ideas and that international legal protection of women may in fact
reinforce patriarchy.
147
Nonetheless, she cautions that:
[I]t is always dangerous to challenge dominant forms of power, ideas and ways of doing
things…There are the dangers of vilification and marginalization…, of institutional
cooption, of legitimating institutions that are deeply antagonistic to transformative
change… and of making things worse for women.
148
Nonetheless, apart from the highlighted feminist victories in international conferences, at
the UN General Assembly and Security Council, there have been significant
developments in international criminal law, jurisprudence of war crimes tribunals and in
the work of recent truth commissions. 149 Nı´ Aola´in has recently opined that the
occurrence of women in these contexts continue to be shifty and muddled by their
constant positions as women. 150 Nonetheless as the subsequent discussions will
demonstrate while feminist ideas have been overtly accepted by international law and its
institutions this is not the case with postcolonial thinking.
THE POSTCOLONIAL PERSPECTIVE
Go to section...
4.
4.1 A vignette of Postcolonial Legal Theory
According to Darien-Smith, Eve and Fitzpatrick Peter, postcolonial legal theory is an
examination by legal scholars of the sidetracked theme of ‘law’s consanguinity to the
postcolonial’.
151
In the context of globalisation, and the post - September 11
recrudescent neo-colonialism the appellation postcolonial (postcolonial or post-colonial)
has been subject to serious rancour.
152
The major objection to the use of the moniker
has been the claim that the alleged former colonies are still colonies. Such assertions can
be very compelling as they confirm the evident resurgent neo- imperialism. However,
this work’s view is that former colonies are no longer really colonies since;
[T]hey have their own governments, which in most cases appear vastly different from
the colonial regime. These new governments may represent improvements, new hope,
or terrible disappointments, but they are not the same. The newly liberated nations may
be ravaged by corruption, violence, and disease, and those horrors may be the direct or
indirect result of having been colonized -- and that is the subject for investigation by
postcolonial studies, not a denial of their value.
153
The history of colonialism and the current experiences of neo-colonialism have made
postcolonial legal scholars overtly conscious of interstate power relations and the manner
in which any intended international norm will, in reality impact on the administration of
power. 154 In evaluating power relations and their effect on the implementation of
international law, postcolonial legal thinking has derived inspiration from non-legal major
intimations of postcolonialism reflected in the works of, Michel Foucault, Robert Young,
Edward Said, Homi Bhabha, Gatayri Spivak, Frantz Fanon, among others. 155
Indeed as a result of the thinking of these ground-breaking postcolonial theorists some
concepts have become associated with and perceived in a certain way in postcolonialism.
156
For example, whereas ‘discourse’ in linguistics simply refers to any segment of
dialogue which is more than a sentence, in postcolonial studies the term is associated
with Foucault’s enunciations.
157
Foucault saw discourse as a firmly circumscribed scope of
knowledge, a philosophy with which the world can be recognised.
158
Those with power
control this knowledge, how it’s imparted, and exercise authority over those who have
no say in what is known.
159
This nexus between power and knowledge is essential in interactions between former
colonies and their colonial masters, and was seized by first–generation postcolonial legal
theorists who explained how traditional understanding of international human rights law
(in common with other facets of international law) imbricate with colonial needs.
160
They
specifically blamed international law for rendering legitimacy to the imperialists’
objectives of subjugating the colonized and systematically pillaging their resources.
161
From this theoretical angle, a deceitful positivist myth of sovereign equality which
assumes that all states are the principal actors of international law who are bound by
international human rights norms that they have freely and voluntarily consented to was
rejected.
162
In his expostulation of Orientalism, Edward Said builds on Foucault’s understanding of
discourse to connect culture and imperialism.
163
He points out that during the
enlightenment period the western discourse assisted the Occident to construct, embody
and prevail over the Orient.
164
In postcolonial studies, Orientalism has come to be
understood as a way in which western culture and stereotypes reinforce global depictions
of non-western cultures.
165
The effect is not only felt in political and economic structures
and institutions but in the creation of a binary fashion of seeing the colonialists as the
self and the colonised as the other who need civilisation.
166
Drawing on Edward Said’s theory, Antony Anghie asserted that most of international
law’s core doctrines are a product of efforts by European jurists to legally account for the
imperial distinctions between the civilised European world and the non-civilised nonEuropean world.
167
Similarly, Siba N’Zatioula Grovogui demonstrated that European
viewpoints of the self and their philosophical depictions have been essential in the
formation of international law.
168
As James Thuo Gathii puts it:
[T]hese representations of the European self, and the contrasting non- European other,
form the basis of simultaneous exclusion and inclusion and are grounded on differences
or similarities of religion, culture or race.
169
In a global order that classifies nations as developing and developed, modern and premodern and as inhabiting different worlds, human rights norms are seen to be the new
yardstick that have ousted civilisation as the postcolonial test for separating the Self
from the Other.
170
Commenting on the realisation that the majority of cases that are
being dealt with by human rights bodies are from postcolonial countries Makau Mutua
had this to say:
[I]t is in this sense that the “other culture”, that which is non- European, is the savage
in the human rights corpus and discourse…. … Many are women and children twice
victimised because of their gender and age, and sometimes the victim of the savage
culture is the female gender itself.
171
Indeed in relying on an overly generalized victim subject mostly representative of
Western privileged women’s concerns, the women’s human rights movement has been
critiqued for its hegemonic bias. 172 According to this viewpoint, postcolonial women are
largely depicted as victims of their societal bad cultural practices. 173 This approach
bolsters stereotyped and racist images of that culture favouring Western culture.
Notwithstanding, its compelling articulation of discursive colonialism, Orientalism tends
to represent an exceedingly general and fixed western cultural imperialist notion.
174
In
particular, it tends to relegate the Other to a mere end result of the colonizer’s
discourse. This tendency is manifested, for example, in Said’s assertions that ‘orient was
not (and is not) a free subject of thought and action’.
175
In view of this difficulty, Homi Bhabha seized upon Orientalism to point out the
ambivalent relationship that exists between the Self and the Other.
176
His philosophy
basically unsettles the definitive power of colonial superiority since it disrupts the
uncomplicated relationship between the colonizer and the colonized.
177
First coined in psychoanalysis, the term ‘ambivalence’ illustrates a constant alteration
between desiring something and desiring its antithesis.
178
Applied to postcolonial
discourse theory by Homi Bhabha, the term depicts the love and hate relationship that
exists between the colonizer and the colonized.
179
For example while some colonial
subjects struggled against colonialism, others collaborated with the colonizer and yet the
actions of other colonized subjects alternate between complicity and resistance.
180
On
the same note, while the colonizer‘s objective is to create deferential liegeman who
‘mimic’ the colonizer, it creates fluctuating subjects whose replication of the colonizer’s
expectations, attitudes and ideals is far-removed from mockery.
181
According to Bhabha, the execution of colonial power is weakened by the process’s
perpetual ambivalence.
182
This is evident in that even though the colonizer‘s sets out to
impose his own values on the colonized, he does not really intend to produce precise
mimics.
183
Reproducing exact clones is scary since it would disrupt the notion of alterity–
the distinction between the self and the other which is necessary for the colonizer to be
identified as master.
184
To explain this ambivalent process in the exercise of colonial
power Bhabha formulated the term ‘hybrid.’
185
He gives a classic example of Charles
Hunt’s bid to covert Indians to Christianity in 1792.
186
Charles Grant wanted Indians to
adopt Christian beliefs but was afraid that this could stir a liberation rebellion thus he
mixed the Christian tenets with factious caste practices.
187
’Hybridity’ or the engagement
by the colonizer with the culture of the colonized thus disrupts the exceedingly general
and fixed western cultural imperialist notion.
188
A significant part of Bhabha’s theory is dedicated to explaining how hybridity can
generate opportunities for agency.
189
Agency, in postcolonial theory, denotes the ability
of the colonized to engage with or resist colonialism.
190
According to Bhabha, the
ambivalence at the origination of established discourses on power facilitates a form of
turbulence based on the fluctuation that modify paradoxical situations of authority into a
justification for action.
191
His famous illustration of this resistance is an incident whereby
a group of villagers in India rebelled against an attempt to convert them to Christianity.
192
The villagers are said to have declined the sacrament on the basis that the teachings
of God emanated from a meat-eater and not a vegetarian.
193
It needs to be pointed out that Bhabha does not restrict the use of the powers of
hybridity to resist colonial authority to colonial times.
194
He also gives a postcolonial
example of agency, that is, the way in which a British group; Women Against
fundamentalism appropriated the news of the condemnation to death of Salman Rushdie
in 1989.
195
Women against Fundamentalism used the Rushdie affair, not to align
themselves with either Christianity or conservative Islam but to attract a debate on
issues that affect women.
196
Further, Bhabha stresses that agency only emanates from the contours of the master’s
discourse.
197
Therefore, a form of connivance and abetment between the colonizer and
the colonized is inevitable.
‘negotiation.
199
198
This explains Bhabha’s reference to agency as a form of
’ To him this ‘negotiation’ or playing out of ‘hybridity’ takes place at a
‘third space - a middle, disparate site where supplementary discourses move in to
maintain their distinctiveness.
200
It should be pointed out that Bhabha is emphatic that colonialism is said to have
pronounced the distinction between the former colonial powers and their former colonies
thus it is hopeless to attempt to recover the pre-colonial identity.
201
For this reason he is
wary of any attempts at directly confronting the dominant discourse as the product is
likely to be reverse Orientalism and racism or a replacement of one authority with
another.
202
Concurring with this line of reasoning Bart Moore-Gilbert argues for a form of
agency which disrupts the master’s discourse from within.
203
Parallels can be drawn between Bhabha’s understanding of the relationship between the
colonizer and the colonized and some legal scholars’ attitudes to international law.
204
First there is postcolonial scholarship which seeks to prove that the encounter between
the European and the non-European world contributed to the creation of the core
principles of international law; thereby unsettling the notion that international law is a
sole product of European culture.
205
Second, it could be said that the Bhabain philosophy is best demonstrated by the
ambivalent attitudes of these pundits to international law.
206
From one, viewpoint, these
scholars criticized international law for adding legitimacy to colonialism.
207
Yet, from
another angle, these scholars accepted international law and even devoted research in
proving that non-European states were not newcomers to the concept of international
law.
208
According to Makau Wa Mutua the suggestion that Africans did not have ideas of
human rights is Eurocentric.
209
Thirdly, postcolonial scholars sought opportunities of agency within the international
legal machinery. Believing that concerns of the newly-liberated states could be
addressed through the United Nations (U.N) system, they contended that General
Assembly resolutions imposed legal obligations on member states.
210
This strategy was
employed in attempts to address several issues, including, the end of colonialism, racial
discrimination, sovereign equality of states and non-intervention by powerful states in
the affairs of the new states.
211
Having succeeded in spearheading the decolonization
process, they noted that political independence without economic liberation was
insufficient.
212
Therefore, they wishfully sought to re-order the uneven economic
relations between the North and the South through the inauguration of a New
International Economic Order (NIEO).
213
In spite of this ambitious attempt the gap between the rich and the poor widened and
the NIEO vision collapsed with the end of the Cold war in 1989.
214
It can be argued that
the failure of the NIEO illustrates Bhabha’s notion that agency and subjectivity are
closely connected. Indeed, several underpinnings of the NIEO ideology qualify the ideas
of agency and subjectivity.
Firstly, the NIEO demonstrates an attempt by the Other to radically force transformation
of international law on the Self who play a significant role in the market economy. This
can be assumed from the voting patterns at the adoption of the General Assembly
resolutions which proclaimed the New International Economic Order.
declaration and the Program of Action were adopted without a vote.
215
216
The NIEO
The Charter of
Economic Rights and Duties of States were passed by a recorded vote of 120 affirmative
votes, six opposing and 10 abstentions.
217
This differs from the quest for decolonization and national self-determination which was
steeped in Western liberal thought and was achieved with the tacit support of the Self.
Indeed, no colonial power voted against the Declaration on the Granting of
Independence to Colonial Countries and Peoples which was passed with 89 affirmative
votes and nine abstentions.
218
Former colonial masters were not wary of political
independence since they had already arranged the structures of the market economy in
such a way that territorial and economic strength were divorced.
219
As the then
spokesman of the developing nations, President Boumedienne of Algeria aptly put it:
[I]n fact the colonialist and imperialist powers accepted the principle of the right of the
peoples to self-determination only when they had already succeeded in setting up the
institutions and machinery that would perpetuate that system of pillage established in
the colonial era…
220
Consequently the binary divisions of the self and the other produced by the colonial
encounter were preserved since after political liberation, former colonial masters still
controlled the international economic and trading systems. 221 Developing nations which
continued to be the source of cheap raw materials were still dependent on the
industrialized West for capital, finished products and technology. 222
Secondly, this NIEO strategy was founded on the notion that socially generated
resources and knowledge ought to be socially distributed.
223
This highlights a suspicious
attitude towards international law by developing countries and a refusal to accept
capitalist ideas of trade by the same.
the hypocritical nature of colonialism.
224
Inherent is such a viewpoint was a recognition of
225
This was tantamount to outright rejection of the
Western discourse as a philosophical basis, a move that Bhabha warns against. Against
this backdrop Eric, A. Engle, argues that any transformation of the current economic
arrangements will be effected progressively within the Bretton Woods institutions.
226
It is axiomatic from the discussion above that in the era of the NIEO; postcolonial legal
scholars backed the postcolonial state in furtherance of its nation building responsibility.
227
To them, sovereignty was negative, inhered in the newly liberated state and gave the
state a right to be liberated from foreign interference.
228
The state was seen as unitary,
ideal body unaffected by class, race, tribal or gender related disagreements.
229
As a
result of this viewpoint, there was no focus on the postcolonial state’ authoritarianism,
neither was there any interrogation of its failure to provide governance.
230
The post – NIEO era saw an end to postcolonial wars that had been previously
exacerbated by the superpowers’ Cold War.
231
It also saw a rise in pro-democracy
movements who were either engaged in constitutional re-engineering in the passage
from war or to peace or were calling upon the postcolonial state to respect its citizenry’s
wider human rights.
232
In the contemporary era of globalization such struggles has
become an acceptable model for the rule of law.
233
For postcolonial legal philosophers, these developments necessitated a shift from
absolutist notions of state sovereignty to a revised idea of sovereignty which emanate
from the will of the people and is related to people’s rights, even though their elected
representatives might exercise it.
234
Understood in this way, sovereignty allows for
intervention in a state’s domestic affairs for grave human rights atrocities.
235
It affirms
the view that the state has rights as well as obligations and that these responsibilities
may be enforced by both its citizens’ struggles for civil liberties and by the international
community’s techniques for humanitarian intervention
236
International law can therefore
be invoked in the event of a state’s failure to provide good governance so as to ensure
that the people’s right to democratic entitlement is protected, respected and fulfilled.
237
This tendency to resort to human rights and humanitarian law in the aftermath of war or
authoritarianism homogenizes a broad study of humanitarian justice establishing a legal
corpus related to prevalent conflict – the transitional justice discourse.
238
4.2 Postcolonial theory and Transitional Justice
Efforts to construct a postcolonial understanding of the role of international law in a
transitional context inevitably leads to an exploration of the extent to which the
transitional justice discourse is bedeviled with the umbra of international law’s complicit
in facilitating imperialism. This is more-so in the current context of globalization and the
war of terrorism where power and fundamental relationships which are entrenched and
depicted in international law are undergoing much scrutiny.
239
It is distinctly regrettable
that these budding critiques of transitional justice unpretentiously mimeo the precepts of
colonialism.
240
Indeed axioms of imperialism are liable to be repeated in the use of
international law in a transitional context.
First, in as much as international law is indicted for facilitating imperialism’s civilizing
mission the purpose of which was to emphasize control and power through knowledge
formulation and the cultural creation of ‘otherness,’ the same can be said of the role of
law in transitional justice.
241
This can be inferred from the observation that:
[I] n the context of the ongoing violence in the international system, it is significant that
since the beginnings of international law, it is frequently the ‘other’ the non- European
tribes, infidels, barbarians who are identified as the source of all violence …. However,
this violence when administered by the colonial power is legitimate because it is inflicted
in self-defence or because it is humanitarian in character and indeed seeks to save the
non-European peoples from themselves.
242
This ‘subject - constituting project’ is illustrated by the characterization of the wars in
Iraq and Afghanistan. 243 Bell, Campbell and Ni’Aolain have elucidated on how having
failed to offer a credible explanation for their invasion of Iraq, the United States(US) and
its coalition partners legitimatized the war by pointing to the human rights atrocities and
the democratic deficit of Saddam Hussein’s regime. 244
Indeed the ghost of the civilizing mission was revived when terms like ‘democratization’
and ‘ human rights’ were used to produce knowledge of a pre-invasion Iraq which was in
turmoil and in need of the coalition’s intervention for its liberation.
from George W Bush 2003 remarks that:
245
This is noteworthy
In Iraq, the Coalition Provisional Authority and the Iraqi Governing Council are also
working together to build a democracy – and after three decades of tyranny, this work is
not easy. The former dictator ruled by terror and treachery, and left deeply ingrained
habits of fear and distrust. Remnants of his regime, joined by foreign terrorists, continue
their battle against order and against civilization.
246
In a similar vein, and with regard to postcolonial women, Anne Orford borrows Gatayri
Spivak ‘s famous adage ‘white women … saving brown women from brown men’ as she
notes how certain feminist legal literature sees the role of international law and ‘white
women’ as being the liberation of third world women from their cultures. 247 According to
this school of thought international law must set out to reform these savage cultures so
that there can mimic those of powerful countries.’ 248
Secondly, it could be said that almost all the key concepts associated with transitional
justice –democratization, liberalization and rule of law – denote a progression from the
Occident to the Orient.
249
They imply the transformation of certain values that have
professedly been developed by the untainted benevolent self and must now be embraced
by the other if it is to make a successful transition to an internationally acceptable liberal
democracy.
250
There are also based on the racist stereotypes of the postcolonial people as devoid of
any philosophy for reconstructing their communities.
251
These nuances can be deciphered
from the then, Britain’s Prime Minister, Tony Blair’s address to the U.S. Congress in
2003.
252
In his remark, he dismissed critiques that liberty, democracy and human rights
are Western values and assertions that Serbian citizens, the Iraq people and the women
of Afghanistan were content under the leadership of their outgoing regimes.
253
In
accordance to Tony Blair the US and its coalition’s values are:
[n]ot Western values, they are the universal values of the human spirit. And anywhere…,
anytime ordinary people are given the chance to choose, the choice is the same:
freedom, not tyranny; democracy, not dictatorship; the rule of law, not the rule of the
secret police…And just as the terrorist seeks to divide humanity in hate, so we have to
unify it around an idea. And that idea is liberty. We must find the strength to fight for
this idea and the compassion to make it universal.
254
In the current context where those initiatives are entangled in intricate issues of power,
efforts at making those values ‘universal’ are likely to be viewed with cynicism. 255 As the
cases of the ouster of Saddam Hussein and Muammar Gaddafi demonstrates, while those
universal values stipulate that institutions and practices which are inimical to human
rights must be transformed, use of force which justifies the reconstruction of a less
powerful society by definition also necessitates imposition of the victor’s justice.
Furthermore, given transitional justice’s relation to the western view that the individual
is the principal holder of rights in tandem with its marginalization of economic, social and
cultural rights, the values it transmit cannot be said to be universal.
256
Postcolonial Africa
for example, accords economic social and cultural the same status as an individual’s civil
and political rights
257
The Eurocentric notion cannot also adequately account for the
multifariousness of group and individual rights in a postcolonial state.
258
This attitude
also testify to the masculinity of transitional justice since as a social class, women are
the conventional care givers who are more directly affected by a state’s failure to
respect, protect and fulfil its citizens’ economic, social and cultural rights.
259
Thirdly, international law’s inattention to a historic fact that in most cases, postcolonial
authoritarianism and violence was sustained and maintained by external historic and
prevailing processes attracts criticism that transitional justice serves to deflect attention
from and entrench impunity for human rights atrocities committed by former colonial
powers’ violence.
260
According to Richardson, H.J. III,
[C]urrent Northern tier political and legal theory among dominating elites aims to
suppress accountability for colonialism’s destructive effects by burying it under mounds
of responsibility placed on the present ‘failed’ governments for all the deficiencies among
its peoples.
261
This explains the African Union’s lack of support of the indictment of Sudanese President
Umar al-Bashir for war crimes and crimes against humanity by the International Criminal
Court. 262
The Cold war is often cited as an example of a historical process which upheld
authoritarianism and wars in many countries while the current war on terrorism and the
United States’ hegemonic inclinations are contemporary illustrations.
263
An illustrative
example in ideological differences is approach to the Zimbabwean question ever since
the country attracted international attention in 2000. External reaction has varied and in
fact rekindled the ideological debates of the Cold War. The contemporary variance pits
postcolonial Africa, with the support of Russia and China against Western governments
led by the United Kingdom (UK) and The United States of America (US).
264
The former insists that narratives of the Zimbabwean crisis should take into account the
indelible mark left by colonialism.
265
They have also proposed African solutions to African
problems and respect for the principle of equal sovereignty.
266
On the other hand
Western governments are focused on governance and call for tougher international
action against what they perceive to be a rogue administration which does not respect
property rights and the rule of law.
267
Fourth, in giving tacit approval to economic exploitative practices which often occur
alongside the implementation of transitional justice mechanisms, and for both to be
given legitimacy as the promotion of liberal democracy by the international community,
international law can be charged with advancing neo-colonial projects of economic
exploitation.
268
A recent example of this phenomenon is the Western expropriation of
Iraq’s resources and assets after the overthrow of Saddam Hussein.
269
As Anne Orford questioned with regard to the analogous case of Afghanistan;
[H] ow did it come to seem almost remarkable, in the aftermath of a ‘ war on terror’, to
be told in November 2001 that the government of Afghanistan was being ‘ freely
determined’ by its people in Bonn, while the World Bank, the United Nations
Development Program and the Asian Development Bank co-hosted a meeting in
Islamabad to decide how to transform Afghanistan into a market economy.
270
The occupying powers privatised Iraq in a manner which could be seen as a violation of
the Iraq citizenry’s international legal right to self-determination. 271 This process, which
was undertaken without the consent of the Iraq people, included giving Western
investors the power to control almost all Iraq companies without any profit repatriation
terms. 272 The Iraq oil industry was also placed under the control of an independent
professional management team chaired by the former chief executive of Shell Oil
Company. 273 These programs were based on the understanding that a regime
administered under a free-market democracy paradigm would not be authoritarian or
compelled to purchase weapons of mass destruction. 274
It may prima facie appear unproblematic that transitional justice and free market
capitalism have a complementary and mutually reinforcing relationship. This is because
both practices purportedly set out to spread and improve human rights norms.
275
According to liberals, as multinational enterprises operate globally within the system of
free trade and investment they progressively impart human rights values in transitional
societies.
276
To illustrate, the rule of law which is essential for the development of both
the free market and democracy is enforced to ensure certainty in legislation which
relates to foreign investment and the general conduct of business.
277
In particular,
primacy is given to an individual’s right to property and sanctity of contract.
278
This legal
certainty results in greater foreign investment leading to domestic economic growth
which will be instrumental in, or lead to an unavoidable socialisation of human rights
norms and usher a democratic regime.
279
A close postcolonial legal scrutiny of this relationship however, reveals that it is
paradoxical that transitional justice discourses purport to move citizens from an unjust
regime to a just establishment while embracing the notion of free markets.
280
This is
because the argument that free market capitalism’s contributes towards the promotion
of people’s welfare has been largely disproved.
281
In fact postcolonial legal theorists have
pointed out that international financial institutions’ structural adjustment and trade
liberalization policies’ insensitivity to budgetary actualities of postcolonial states weaken
the economic, social and cultural rights of people in these societies.
282
These neo-colonial
agents, (multinational companies) have also been accused of failing to adhere to
international legal requirements of minimum labour and environmental standards.
283
Despite recent international legal recognition that non-state actors can be perpetrators
of human rights atrocities, transitional jurisprudence has only embraced this notion in as
far as it relates to civil and political rights violated by armed rebels.
284
This inattention to
international economic institutions and multinational companies’ well documented
contribution to the humanitarian crisis and human rights atrocities of outgoing regimes
further reinforce the argument that there is complicity between the practice of
transitional justice and the neo-liberal practices of economic exploitation.
285
However, none of these compelling postcolonial critiques of transitional justice celebrate
post-colonial African leadership’s mismanagement and corruption which exacerbated the
colonial legacy of inequalities they failed to address as a prerequisite to independence.
286
They also do not totally dismiss transitional jurisprudence as an extension of the
civilizing mission, cultural imperialism or a promotion of neo-colonial practices of
economic exploitation.
287
To reiterate, Homi Bhabha has eloquently pronounced that civilizing projects are
undermined by the ambivalent representation of colonial power.
288
A postcolonial legal
understanding could therefore also endeavor to unsettle the contradiction between the
Occident and the Orient, by interrogating the crucial connivance between the conditions
in which the other is produced in transitional jurisprudence, and the self that is
circumstantially produced.
289
In scrutinizing treatises on transitional justice, this work
has already highlighted the analogy between the construction of the benevolent,
valorous, masculine self of the international actors and the other against whom ‘justice’
mechanisms ought to be employed so as to diffuse ‘universal values’.
290
Yet, authoritative texts on transitional justice are outlined in a similar manner.
For
291
example, Professor Ruti Teitel’s analysis of the genealogy of transitional justice marks
the discourse’s key historical epochs as the period after Second World War, the postCold War era and the contemporary period of globalization which is distinct for its
persistent conflict.
292
It is remarkable that in the period after the Second World War
former colonial powers were involved in conflicts aimed at suppressing anti-colonial
movements as well as preventing the expansion of Communism.
293
After the Cold war,
these operations gained prominence in postcolonial societies as armies of the super
powers increasingly turned to global peacekeeping and policing activities.
294
It is
noteworthy that in these interventionist activities, western powers have been implicated
in conduct which the field of transitional justice associates with the inhuman acts of
‘rogue’ authoritarian leaders of outgoing regimes.
295
To use Anne Oxford’s words;
[T]hat with which we charge the other - that it founds a masculinity, racially
exclusionary, violent and nationalist political order on the expulsion and wounding of
women and children – is in fact the basis of the international community as constituted
through intervention narratives. The attempts to disavow this leads to more violence.
296
This demonstrates that the practice of transitional justice is not a one-way process in
which ‘rogue’ leaders of ‘failed’ states are either sanctioned or reconstituted in the image
of an untainted benevolent international community. 297 Rather, and to borrow from Homi
Bhaba’s exposition on the ambivalence of the colonial exchange, an inevitable
consequence of this contradictory colonial exchange is the occurrence of hybridity which
creates opportunities for the appropriation of the powerful imperial knowledge for anticolonial resistance purposes. 298 These counter-colonial projects draw upon various local
and hybrid practices to challenge, undermine and occasionally supplant the authority of
the colonial discourse. 299
A classic example of this hybridity and agency is the African Charter on Human and
Peoples’ Rights (African Charter) which emerged as a simultaneous reaction to
dictatorship in postcolonial Africa and a site for resisting all kinds of imperialism.
300
At its
birth, the African Charter was seen as unconventional since it went further than
embracing an individualistic universal rights notion to also incorporate collective rights as
well as economic, social and cultural rights.
301
The instrument’s crucial aspiration was
captured in the Social and Economic Rights Action Centre (SERAC) and the Center for
Economic and Social Rights (CESR) v Nigeria decision (SERAC & CESR v Nigeria) where
the Commission aptly stated thus:
[T]he uniqueness of the African situation and the special qualities of the African Charter
on Human and Peoples’ Rights impose upon the African Commission an important task.
International law and human rights must be responsive to African circumstances.
Clearly, collective rights, environmental rights and economic and social rights are
essential elements of human rights in Africa.
302
It is submitted that by engaging with and considering that features of African traditions
and the values of the continent’s civilization can be its foundation, the Charter
undermines the original civilizing mission of human rights. 303 These developments
however, do not obliterate the critique that because of its liberal bias, the transitional
justice discourse may not be an appropriate tool for dealing with the postcolonial world’s
injustices. 304 Underlying tenets of liberalism do not amply consider these societies’
political, economic and cultural conditions. 305
A postcolonial legal reading could however, attempt to strike a balance between the
need to decolonize humanitarian legal and human rights standards which form the
normative basis of transitional justice, on the one hand, and a recognition that these
international legal standards can be both viperous and redeeming.
306
Further, and
against the backdrop that globalization has reconfigured, disrupted and destabilized the
notion of the sovereign state, postcolonial legal scholarship can also engage with nonstate actors and other locations of power so as to holistically address rights and sites
that concern injustices perpetrated on postcolonial subjects and women.
307
CONCLUSION: FEMINISM, POSTCOLONIAL LEGAL THEORY AND
TRANSITIONAL JUSTICE
5.
Feminists and postcolonial scholars share a fundamental suspicion of the preoccupation
with transitions to a peaceful liberal democratic order as this tends to reverse gender
equality gains and confirm a traditional public/private divide. They both direct their
criticisms at the discourse’s foundational concepts, namely, rule of law, liberalism,
democracy and human rights.
308
According to them, the liberal notions of democracy,
rule of law and human rights were invented by an authoritarian system. For radical
feminists, this dominant group is the patriarchal society and for postcolonial legal
theorists, it is their former colonial masters. Both focus on the rights of a group and not
necessarily on individual rights. Both theorists are critical of the traditional practice of
privileging civil and political rights at the expense of economic, social and cultural rights.
They differ though, in that feminists do not share the absolute positive attitude that post
colonialists seem to have towards the collective, noting that groups can also be sites of
abuse.
Thus this article has endeavored to directly weld the transitional justice discourse to the
imperial origins and bias of international law. It has also problematized transitional
justice’s liberal basis. The observation it makes is that in their conventional form,
transitional justice mechanisms may not adequately deal with the postcolonial world’s
injustices since postcolonial legal theorists and feminists have shown that liberal core
values do not neatly fit into the societies’ peculiar, socio-economic and political contexts.
Previous authors have either ignored this connection or merely footnoted the colonial
legacy. It is this author’s assumption that this is because most of these scholars are
largely steeped in liberal thought and are therefore eager to dismiss arguments of a
cultural relativist nature as detraction and an exploitation of culture by dictators and
their supporters. Yet most of these pundits concur that legitimacy is central to linking
transitional justice processes to sustainable peace.
Inspired by feminists and postcolonial legal theorists, who largely draw on literary
studies this thesis submits that Eurocentric views cannot however, be limited to the
colonial context and thus rejected. Nor should they be removed from this historic context
and thus written off. Therefore, while transitional justice can be seen as one of the
human rights strategies that are reminiscent of imperial intervention in the lives of
postcolonial subjects, it is open to seizure by the same. This is possible in a transitional
context since these situations create opportunities for stakeholders to rethink the
inadequacies of the accepted discourse, and to subscribe to new ways of seeking justice.
Therefore, in applying postcolonial legal thinking to transitional justice this paper
exposed the field’s dominating ream in its usance so as to simultaneously inaugurate its
liberating potential.
Notes
*)
All internet references cited in this article were last visited on 30 September 2012.
Issa G Shivji, ‘Law’s Empire and Empire’s Lawlessness: Beyond Anglo-American Law’,
2003 (1), LGD, available at: < http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_1/shivji2/>
accessed 10 July 2012.
1)
G H Fox, ‘International Law and the Entitlement to Democracy after War,’ [2003] 9
Global Governance 179. See also G H Fox and B R Roth (eds), Democratic Governance
and International Law, (Cambridge UP, 2000) 1-600.
2)
United Nations Secretary General, ‘UN approach to Transitional Justice’ (United
Nations, March 2010), available at: <
http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf/ >.
3)
Most of the relevant literature has been reviewed in F Ní Aoláin, D F Haynes and N
Cahn, On the Frontlines, Gender, War, and the Post-Conflict Process Series: Governance
and Limited Statehood (Oxford UP, 2011) & S Buckley-Zistel and R Stanley, Gender in
Transitional Justice (Palgrave, Macmillan, 2011).
4)
L Bosire, Overpromised, Underdelivered: Transitional Justice in Sub-Saharan Africa,
(ICTJ, Occasional Paper Series, 2006), available at: < ICTJ-Africa-OverpromisedUnderdelivered-2006-English.pdf/>.
5)
V Nesiah, ‘Discussion Lines on Gender and Transitional Justice: An Introductory Essay
Reflecting on the ICTJ Bellagio Workshop on Gender and Transitional Justice’, (2006) 15
Columbia Journal of Gender and Law 799. See however, M wa Mutua, ‘Hope and Despair
for a New South Africa: The Limits of Rights Discourse’ (1997)10 Harvard Human Rights
Journal 63, M wa Mutua, ‘Never Again: Questioning the Yugoslav and Rwanda Tribunals’,
(1997) 11 Temple International & Comparative Law Journal 16, M wa Mutua, M.
‘Savages, Victims, and Saviors: the Metaphor of Human Rights,’(2001) 42 Harvard
Human Rights Journal 201 & A Anghie and BS Chimni, ‘Third World Approaches to
International Law and Individual Responsibility in Internal Conflicts,’( 2003) 2(1) Chinese
Journal of International Law 78.
6)
Bosire, supra n. 5. See also J Mayall, ‘The legacy of Colonialism’ in S Chesterman, M
Ignatieff and RR Thakur (eds), Making States Work: State Failure and the Crisis of
Governance, (United Nations UP, 2005) 36-58.
7)
8)
Bosire, supra n. 5.
J M Mbaku, ‘Constitutionalism and Governance in Africa’ (2004) 6 West Africa Review.
See also generally VT LeVine, The Cameroons: From Mandate to Independence
(University of California Press, 1964).
9)
Mbaku supra n. 9. See also E Kanyongolo, ‘The Constitution and the Democratization
Process in Malawi,’ in O Sichone (eds), The State and Constitutionalism in Southern
Africa (SAPES Books, 1998) 1 – 12.
10)
G Binder, ‘Cultural Relativism and Cultural Imperialism in Human Rights Law’ (1999)
5 Buffalo Human Rights Law Review 211.
11)
P Scully, ‘Should We Give up on the State? Feminist Theory, African Gender History
and Transitional Justice’ (2009) 9( 2) African Journal on Conflict Resolution 29.
12)
On the effects of education in colonial master’s languages see Ngũgĩ wa Thiong'o,
Decolonizing the Mind: The Politics of Language in African Literature (James Currey,
1986) 17.
13)
See A Cassese, ‘Modern Constitutions and International Law’(1985) 192 Hague
Recueil 331 and T Maluwa, International Law in Postcolonial Africa, (Kluwer Law
International, 1999).
14)
15)
Fox, supra n. 2.
16)
R G Teitel, Transitional Justice (Oxford UP, 2000) at 4.
M Koskenniemi, ‘From Apology to Utopia. The Structure of International Legal
Argument’, (Finnish Lawyers, 1989); M Koskenniemi, ‘The Politics of International Law’,
(1990) 1 European Journal of International Law 4. Contrast with D Georgiev, ‘Politics or
17)
Rule of Law: Deconstruction and Legitimacy in International Law’ (1993) 4 European
Journal of International Law 1. See also D Otto, ‘Postcolonialsm and the Law’ (1999)
Third World Quarterly vii. For similar feminist critiques see J Conaghan, ‘Reassessing the
Feminist Theoretical Project in Law,’ (2000) 27 Journal of Law and Society 357, F Ní
Aoláin & M Hamilton ‘Gender and the Rule of Law in Transitional Societies,’ (2009) 18
Minnesota Journal of International Law 380 and F Ní Aoláin, ‘Advancing Feminist
Positioning in the Field of Transitional Justice’(2012) 6(2) International Journal of
Transitional Justice 205.
See B Rajagopal, ‘International Law and Social Movements: Challenges of Theorizing
Resistance’, (2003) 41 Columbia Journal of Transnational Law 397.
18)
For the nexus between feminist concerns and postcolonial legal theory, see GC
Spivak, ‘Can the Subaltern Speak?’ in C Nelson and L Grossberg (eds), Marxism and the
Interpretation of Culture/ (MacMillan, 1988) and R Kapur, ‘The Tragedy of Victimization
Rhetoric: Resurrecting the “Native” Subject in International/ Post- Colonial Feminist legal
Politics’,(2002) 15 Harvard Human Rights Journal 1.
19)
20)
Ibid.
See the analysis in V Kumar, ‘A Proleptic Approach to Post-colonial Legal Studies? A
Brief look at the Relationship between Legal Theory and Intellectual History’, 2003 (2)
LGD, available at: < http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_2/kumar/>.
21)
Rajagopal, supra n. 18 and D Otto ‘Subalternity and International Law: The Problems
of Global Community and the Incommensurability of Difference, (1996) 5 International
Journal of Social and Legal Studies 337.
22)
These processes include, inter-alia, purges, truth commissions, criminal prosecutions
for human rights violations, restitution, reparation, forgiveness, apologies etc. See
webpages of the International Centre for Human rights < http://www.ictj.org/> and the
Transitional Justice Institute, University of Ulster < http://www.transitionaljustice.ulster.ac.uk/>.
23)
T D Olsen, L A Payne and A G Reiter, Transitional Justice in Balance: Comparing
Processes, Weighing Efficacy ( United States IP, 2010) 1-248.
24)
J Elster, ‘Coming to Terms with the Past. A Framework for the Study of Justice in the
Transition to Democracy,’( 1998) 39 European Journal of Sociology ( Archives
Européenes de sociologie) 7. Note however recent political science literature in the field
of ‘justice’. For example, Laurel E Fletcher, and Harvey M Weinstein ‘Violence and Social
Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 3 Human Rights
Quarterly 578 and K Sikkink and Carrie Booth Walling, ‘The Impact of Human Rights
Trials in Latin America’ 2007 44(4) Journal of Peace Research 427.
25)
26)
Elster, ibid.
C Bell ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Nonfield”’ (2009)3(1) International Journal of Transitional Justice 1.
27)
28)
See n 33-n 53 below.
29)
Bell, supra n. 27.
30)
P de Greiff, ‘A Normative Conception of Transitional Justice’ (2010) 50(3) Politorbis
17.
31)
Ibid.
V Bell and K Campbell, ‘Out of Conflict: Peace, Change and Justice,’(2004)13(3)
Socio-Legal Studies 300.
32)
G O’Donnell, PC Schmitter and L Whitehead, Transitions from authoritarian Rule:
Prospects for Democracy, (John Hopkins University Press, 1986) 1– 232 at 6. See also S
P Huntington, The Third Wave: Democratization in the Late Twentieth Century,
(University of Oklahoma Press, 1991) 1-384 and J J Linz, A C Stepan, Problems of
Democratic Transition and Consolidation: Southern Europe, South America, and PostCommunist Europe, (John Hopkins University Press, 1996) 1-504.
33)
See A Czanota ‘Law as Mnemosyne and as Lethe: Quasi- Judicial Institutions and
Collective Memories’ in E Christodoulidis and S Veitch (eds), Lethe’s Law: Justice, Law
and Ethics in Reconciliation (Hart Publishing, 2001) 116- 130.
34)
See A Angell, ‘The Transition to Democracy in Chile: A Model or an Exceptional
Case?’(1993) 46 (4) Parliamentary Affairs Journal of Comparative Politics 563-78; A
Barahona de Brito, Human Rights and Democratization in Latin America: Uruguay and
Chile, (Oxford UP, 1997) at 1-17.
35)
The literature on this subject is too vast to be fully referenced here see for example,
generally: H Adam and K Moodley, The Opening of the Apartheid Mind. Options for a
New South Africa, (University of California Press, 1993) and JA Kalley, South Africa’s
Road to Change, 1987-1990:A Select and Annotated Bibliography, (Greenwood Press,
1991).
36)
See International Crisis Group, ‘Rwanda at the end of the Transition: a necessary
political liberalization’ (ICG Africa Report No. 53 13 November 2002), available at:
http://www.crisisgroup.org/en/regions/africa/central-africa/rwanda/.
37)
L Bickford, ‘Transitional Justice’(2004) 3 Encyclopaedia of Genocide and Crimes
against Humanity 1045, reproduced at: < http://www.ictj.org/en/tj/>. See also C Campbell,
and F Ni Aolin ‘Local Meets Global: Transitional Justice in Northern Ireland’ (2003) 26
Fordham International Law Journal 871 and C Colm, F NÌ Aolin and C Harvey, ‘The
Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland’ (2003) 66
Modern Law Review 317.
38)
A Przeworski, ‘Democracy as a Contingent Outcome of Conflicts,’ in J Elster and R
Slagstad (eds.), Constitutionalism and Democracy. (Cambridge UP, 1988) at 39 -80.
39)
40)
Ibid.
See F Hagopian and S Mainwaring, ‘Democracy in Brazil: Prospects and
Problems,’(1987) 4 World Policy Journal 485.
41)
S Mainwaring, ‘Transitions to Democracy and Democratic Consolidation: Theoretical
and Comparative Issues,’(Kellogg Institute, November 1989), available at: <
http://kellogg.nd.edu/publications/workingpapers/>.
42)
43)
Ibid.
See MJ Castro, ‘Substantive Self-Determination: Democracy, Communicative Power
and Inter/National Labor Rights - Democracy in Anti-Subordination Perspective:
Local/Global Intersections - An Introduction: Beyond/Between Colors: De/Constructing
44)
Insider/Outsider Positions in LatCritTheory’ (1998-1999) 53 University of Miami Law
Review 863.
See generally A Heywood, Political Ideologies: An Introduction (3rd, McMillan Press,
Palgrave, 2003).
45)
46)
Ibid.
47)
Ibid.
See K Raik, ‘Towards Substantive Democracy? The Role of the European Union in the
Democratization of Estonia and the other Eastern Member Candidates’ (1998) Tampere:
TAPRI, Tampere Peace Research Report No. 84. 1-116, See also C Campbell and F Ní
Aoláin, ‘The Paradox of Transition in Conflicted Democracies’ (2005) 27(1) Human Rights
Quarterly 173.
48)
49)
Raik, ibid.
50)
Ibid.
Huntington, supra n. 33. See also J Elster, Closing the Books: Transitional Justice in
Historical Perspective, (Cambridge UP, 2004) at 1-47.
51)
52)
Huntington, supra n. 33.
53)
Ibid.
RG Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation,’
(1997)106 Yale Law Journal 2009. See also generally M Byers (eds), The Role of Law in
International Politics. Essays in Law and International Relations, (Oxford UP, 2000).
54)
55)
For a compelling discussion on the subject, see Teitel, supra n. 16, at 4.
56)
Ibid.
57)
See n 58 – n 92 below.
Teitel, supra n. 16. See also RG Teitel, ‘How are the New Democracies of the
Southern Cone Dealing with the Legacy of Past Human Rights Abuses’ in NJ Kritz (eds),
Transitional Justice: How Emerging Democracies Reckon with Former Regimes vol 1
(United States IP, 1995) at 146-154.
58)
The terminology has been borrowed from T Risse, SC Ropp, and K Sikkink, The
Power of Human Rights: International Norms and Domestic Change, (Cambridge UP,
1999) 1-336. See also H Cobban, ‘Notes on the development of transitional justice since
1995,’ (Just World News 2005), available at: < http://justworldnews.org/archives/Notes>.
59)
Para 8 of the Vienna Declaration and Programme of Action, A/CONF.157/23, adopted
12 July 1993 (hereinafter Vienna Declaration) states: ‘democracy, development and
respect for human rights and fundamental freedoms are interdependent and mutually
reinforcing.’
60)
An axiomatic link between the two concepts is sanctioned by Article 21 of the
Universal Declaration of Human Rights G.A Rees 217A(111), UN Doc, A/810 (1948)
61)
(hereinafter UDHR) and Article 25 of the International Covenant on Civil and Political
Rights, (1966), 999 UNTS 171 (hereinafter ICCPR). See also papers presented at the ‘
Seminar on the Interdependence between Democracy and Human Rights UN Office of
the High Commissioner for Human Rights.’ Geneva: 25-26 November 2002, available at:
< http://www.unhchr.ch/democracy/seminar.htm>.
See R Dworkin, Taking Rights Seriously (Harvard UP, 1978) 1-392 for the distinction
between majoritarian and egalitarian democracies. Lin Chun ‘Human Rights and
Democracy: The case for Decoupling’ (2001) 5(3) International Journal of Human Rights
19 for the view that some electoral democracies do not respect economic, social and
cultural rights while some authoritarian regimes do so very well.
62)
See Michael Freeman, Human Rights: An Interdisciplinary Approach, (Ist, Polity
Press, 2002) 1-216, at 72.
63)
64)
Campbell and Ni Aolain, supra n. 48.
65)
Ibid.
66)
Ibid.
67)
Ibid.
68)
Ibid.
69)
Campbell and Ni Aolain, supra n. 48.
70)
Ibid.
71)
Przeworski, supra n. 39.
72)
Ibid.
See Cobban, supra n. 59 and NJ Kritz (eds), Transitional justice: How Emerging
Democracies Reckon with Former Regimes vol 2 (United States IP, 1995) 1-832. Note
however, that Elster, supra n. 25 at 49-76 does look at cases involving the restoration of
monarchy and transition to independence.
73)
See Campbell and Ni Aolain, supra n. 48 for the multilateral relationship between
Northern Ireland, the United Kingdom and the Irish Republic. For the Northern Ireland
history, see B O'Leary and J McGarry, The Politics of Antagonism: Understanding
Northern Ireland, (Athlone Press, 1993) 1-358.
74)
See the discussion in Campbell and Ni Aolain, supra n. 48 at 183-184 and C Bell, C
Campbell and F Ni Aolain, ‘Justice Discourses in Transition’ (2004) 13 Social and Legal
Studies 306 at 308.
75)
See for example the debates by Professor H l A Hart and L Fuller on the legitimacy of
the actions of the government of the Third Reich, Herbert L A Hart, ‘Positivism and the
Separation of Law and Morals’ (1958) 71 Harvard Law Review 593 and Lon L. Fuller,
‘Positivism and Fidelity to Law – A Reply to Professor Hart’, (1958) 71 Harvard Law
Review 630. See also Bell, Campbell and Ni Aolain, supra n. 75 and Teitel, supra n. 16 at
12-15.
76)
77)
See Teitel, supra n. 54 & Campbell and Ní Aoláin, supra n. 48.
78)
See the discussion in Campbell and Ni Aolain, supra n. 75, at 177-178.
RG Teitel, ‘Transitional Justice: Post-war Legacies’ (2006) 27 Cardozo Law Review
1615. Article 7 of the Statute of the International Criminal Court (hereinafter referred to
as Rome Statute) specifies some of the acts that constitute the human rights abuses of
pre-transition regimes (Rome Statute of the International Criminal Court, UN Doc. 2187
UNTS 90, entered into force 1 July 2002).
79)
80)
Campbell and Ni Aolain, supra n. 75 at 177-178.
Teitel (2000), supra n. 16. See also the discussion in Bell, Campbell and Ni Aolain,
supra n. 75.
81)
82)
Teitel (1997), supra n. 54.
83)
Ibid.
84)
Ibid. See also the foreword by Lord Wright of Richmond in Byers, supra. n. 54.
85)
Teitel (1997), supra n. 54.
86)
See Kritz, supra n. 58, at xxi.
Teitel, (2000), supra n. 16; Teitel (1997), supra n. 54. See also Campbell and Ni
Aolain, supra n. 75.
87)
88)
Teitel (1997), supra n. 54.
The authorities are just too many to be fully referenced here see among others:
Teitel (1995), supra n. 58. N Roht-Arriaza (eds) Impunity and Human Rights in
International Law and Practice, (Oxford UP, 1995) 1-412, JE Mendez, ‘In Defense of
Human Rights’, in James A McAdams (eds), Transitional Justice and the Rule of Law in
New Democracies. ( 1st ed, University of Notre Dame Press, 1997), 1-330. DF
Orentlicher, ‘Settling Accounts: The Duty to prosecute Human Rights Violations of a Prior
regime’, (1991) 100 Yale Law Journal 2537, C Bell ‘Dealing with the Past in Northern
Ireland’, (2003) 26 Fordham International Law Journal 1095.
89)
RG Teitel, ‘Paradoxes in the Revolution of the Rule of Law’, (2004) 19 Yale Journal of
International Law 239.
90)
91)
Bell, Campbell and Ni Aolain, supra n. 75.
See Teitel (2000), supra n. 16 at 5, Bell, Campbell and Ni Aolain, supra n. 75 and
Cobban, supra n. 59.
92)
93)
H Brighouse, Justice (Polity Press, 2004) 1-208.
See T Glaser ‘Justice after Transition’, Summary. University of Colorado: Conflict
Research Consortium 1900 (2005), available at: < http://www.colorado.edu/conflict/peace >.
94)
95)
Ibid.
E Verdeja, ‘A Normative Theory of Reparations in Transitional Democracies’ (2006)
37 (5) Metaphilosophy 740.
96)
These studies include, inter alia, Rama Mani, Beyond Retribution: Seeking Justice in
the Shadows of War (Polity, 2002) 5; Teitel (2000), supra n. 16, 7; Bell, Campbell and
Ni Aolain (2004) (n 75). See also generally N Fraser, Justice Interruptus: Critical
Reflections on the ‘Postsocialist’ Condition’ (Routledge, 1997).
97)
98)
Fraser, ibid.
See KM Franke, ‘Gendered Subjects of Transitional Justice’ (2006) 15 Columbia
Journal of Gender and Law 813.
99)
100)
Ibid.
101)
Mani, supra n. 97.
102)
Ibid.
103)
Ibid.
104)
Ibid
105)
Ibid
106)
Teitel (2000), supra n. 16 at 7.
107)
Ibid.
108)
RG Teitel, ‘Transitional Justice Genealogy’ (2003)16 Harvard Human Rights Journal
69.
109)
Ibid.
110)
Ibid.
Ibid. See also RG Teitel, ‘Transitional Justice in the new Era’, (2003) 26 Fordham
International Law Journal 893, and RG Teitel, ‘The Law and Politics of Contemporary
Transitional Justice’(2005) 38 Cornell International Law Journal 837.
111)
Fletcher and Weinstein, supra n. 25. See also P Gready, ‘Reconceptualising
transitional justice: Embedded and Distanced justice’(2005) 5(1) Conflict, Security &
Development 3.
112)
113)
Ibid.
F Ni Aolain, ‘Advancing Feminist Positioning in the Field of Transitional Justice’
(2012) 6(2) International Journal of Transitional Justice 205.
114)
115)
Bell, Campbell and Ni Aolain, supra n. 75.
This is accordance with Article 8 International Convention on the Elimination of All
Forms of Discrimination against Women, UN Doc. A/34/46, entered into force 3
September 198 (hereinafter CEDAW). For a discussion see C Chinkin, ‘Gender, Human
116)
Rights, and Peace Agreements,’ 2003 18 Ohio State Journal on Dispute Resolution 867
and C Chinkin and K Paradine, ‘Vision and Reality: Democracy and Citizenship of Women
in the Dayton Peace Accords,(2001)26(1) Yale Journal of International Law 103. See also
C Lindsey, ‘Women Facing War’ (International Committee of the Red Cross, 31 December
2001), available at: < http://www.icrc.org/>.
See generally H Charlesworth and C Chinkin, The Boundaries of International Law: A
Feminist Analysis (Manchester UP, 2000).
117)
118)
See the discussion in Nesiah, supra n. 6, at 809-811.
119)
Ibid.
E Brems, ‘Enemies or Allies? Feminism and Cultural Relativism as Dissident Voices in
Human Rights Discourse’ (1997) 19(1) Human Rights Quarterly 136.
120)
Fionnuala Ni Aolain, ‘Political Violence and Gender During Times of Transition ’(2006)
15 Columbia Journal of Gender and Law 829.
121)
122)
Ibid.
123)
Ibid.
R West, ‘Jurisprudence and Gender’(1988) 55 The University of Chicago Law Review
1. See however, MJ Radin, ‘Reply: Please Be Careful with Cultural Feminism’ (1993)
45(6) Stanford Law Review 1567, Franke, supra n. 99 and also the approach in J
Gardam and M Jarvis, ‘Women and Armed Conflict: The International Response to the
Beijing Platform for Action’ (2000) 32 Columbia Human Rights Law Review 1.
124)
125)
Brems, supra n. 120.
126)
Ibid.
127)
Ibid.
128)
Ni Aolain(2006), supra n. 121.
129)
Ibid.
130)
Ibid.
See generally H Charlesworth, ‘What are Women's International Human Rights’ in RJ
Cook(eds), Human Rights of Women: National and International Perspectives (University
of Pennsylvania Press, 1994).
131)
132)
Ibid.
133)
Ibid.
134)
Brems, supra n. 120 and Franke, supra n. 99.
UN General Assembly Declaration on the Elimination of Violence against Women G.A.
res. 48/104, UN Doc. A/48/49 (1993) and para 18 Vienna Declaration, World Conference
on Human Rights, Vienna, 14 - 25 June 1993, UN Doc. A/CONF.157/24 (Part I) at 20
135)
(1993). It is also worth noting that in March 1994 the Commission on Human Rights
appointed a Special Rapporteur on Violence against Women and that by January 1998,
161 UN member states had signed and/or ratified CEDAW which was formulated by the
General Assembly in 1979.
136)
Para 5 Vienna Declaration, ibid.
Para 141 Beijing Declaration and Platform for Action, Fourth World Conference on
Women 15 September 1995. A/CONF. 177/20 (1995) and A/CONF. 177/20/Add. 1
(1995) (hereinafter Beijing Declaration and Platform for Action). For an analysis see
Chinkin, supra n. 117.
137)
138)
Chinkin, ibid.
Security Council resolution 1325 (2000) on Women, Peace and Security
(S/RES/1325 (2000). For a critique see C Bell and C O’Rourke, ‘Peace Agreements or
Pieces of Paper? The Impact of UNSC Resolution 1325 on Peace Processes and Their
Agreements’ (2010) 59(4) International and Comparative Law Quarterly 941.
139)
140)
S/RES/1325 (2000), ibid.
Ibid. See also J Neuwirth, ‘Women and Peace and Security: The Implementation of
UN Security Council Resolution 1325,’ (2002) 9 Duke Journal of Gender Law & Policy
253.
141)
142)
S/RES/1325 (2000), paras. 1, 10 and 11.
143)
SC Res 1820 UN SCOR, 5916th mtg UN Doc S/RES/1820 (19 June 2008) (R1820).
SC Res 1888 UN SCOR 6195th mtg UN Doc S/RES/1888 (30 September 2009)
(R1888).
144)
145)
SC Res 1889 UN SCOR, 6196th mtg UN Doc S/RES/1889 (5 October 2009) (R1889).
SC Res 1960 UN SCOR, 6453rd mtg UN Doc S/RES/1960 (16 December 2010)
(R1960).
146)
D Otto, ‘The Exile of Inclusion: Reflections on Gender Issues in International Law
Over the Last Decade’, (2009) 10(1) Melbourne Journal of International Law 11 and D
Otto, ‘Power and Danger: Feminist Engagement with International Law through the UN
Security Council’ ( 2010) 32 Australian Feminist Law Journal 97.
147)
148)
Otto, ibid at 120.
149)
Franke, supra n. 99.
150)
Nı´ Aola´in (2012), supra n. 17.
P Fitzpatrick and E Darian-Smith, ‘The Laws of the Post-Colonial: An Insistent
Introduction’, in P Fitzpatrick and E Darian-Smith (eds) Laws of the Postcolonial
(University of Michigan Press, 2002) 1-320.
151)
M Masao, ‘A Borderlesness World? From Colonialism to Transnationalism and the
Decline of the Nation- State,’ (1993) 19(4) Critical Inquiry 750 and R Spencer (2003),
152)
‘Optimism of the Intellect and Optimism of the Will: The Unseasonable Art of Ngugi wa
Thiong’o’ 2003(2) LGD, available at: < http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003>. See
also S Pahuja, ‘The Postcoloniality of International law’ (2005) 45 Harvard International
Law Journal 459.
GP Landow, ‘Why I Use the Term ‘Postcolonial’ or Some Words from Your
Webmaster’ The Postcolonial Web, available at: < http://www.postcolonialweb.org>.
153)
154)
Anghie and Chimni, supra n. 6.
See Rajagopal, supra n. 18, Anghie and Chimni, supra n. 6 and B Lyon, ‘Discourse in
Development: A Post-Colonial Theory ‘Agenda’ for the UN Committee on Economic,
Social and Cultural Rights,’ (2002) 10(3) Journal of Gender, Social Policy & the Law 535.
155)
Anghie and Chimni, supra n. 6.
B Ashcroft, G Griffiths and H Tiffin, Key Concepts in Post-Colonial Studies
(Routledge, 1998) 1-288.
156)
M Foucault, The Archaeology of Knowledge and the Discourse on Language,
(Routledge, 2002) 1-256.
157)
158)
Ibid.
159)
Ibid.
See R P Anand, Confrontation or Cooperation? International Law and The Developing
Countries, (Martinus Nijhoff, 1987) 1-274.
160)
161)
Ibid.
A Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth
Century International Law’ (1999) 40 Harvard International Law Journal 1.
162)
163)
E W Said, Orientalism, (Vintage Books, 1979) 1-368.
Ibid. The Occident refers to France, Britain and the United States & the Orient was a
term coined by Edward Said for the Far East and the Middle East.
164)
See the analysis in S Khan, ‘Race, Gender and Orientalism: Muta and the Canadian
Legal System’ (1995) 8(1) Canadian Journal of Women and the Law 249.
165)
166)
Ibid.
A Anghie, ‘The Heart of My Home: Colonialism, Environmental Damage, and the
Nauru Case’ (1993) 34 Harvard International Law Journal 445, at 447.
167)
See generally NG Siba, Sovereigns, Quasi Sovereigns, and Africans: Race and SelfDetermination in International Law, (University of Minnesota Press, 1996).
168)
JT Gathii, ‘International Law and Eurocentricity’ (1998) 9(1) European Journal of
International Law 184.
169)
Mutua, supra n. 6. See also G W. Gong, The Standard of 'Civilisation' in International
Society (Clarendon Press, 1984) 1-267 for an elaborate consideration of the distinction
between civilized and uncivilized nations in international law in the nineteenth century.
170)
Mutua, supra n. 6. Similarly Raimundo Pannikar also noted that ‘human rights are
universal from the vantage point of modern Western culture, but not universal from the
‘outside looking in’ R Pannikar, ‘Is the notion of Human Rights a Western Concept’
(1982)120 Diogenes 76.
171)
CT Mohanty, ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’ in
C T Mohanty, A Russo, and L Torres (eds) Third World Women and the Politics of
Feminism (Indiana University Press, 1991) 1-352.
172)
Kapur, supra n. 19. See also A Bunting, ‘Theorizing Women’s Cultural Diversity in
Feminist International Human Rights Strategies’, (1993) 20 (1) Journal of Law and
Society 6.
173)
I Kapoor, ‘Acting in a Tight Spot: Homi Bhaba’s Postcolonial Politics’ (2003) 25(4)
New Political Science 561.
174)
175)
Said, supra. n. 164 cited by Kapoor ibid.
H Bhabha, ‘Of Mimicry and Man: the Ambivalence of Colonial Discourse’ in H
Bhabha, The Location of Culture (Routlegde, London, 1994) at 85-92.
176)
177)
Ashcroft, Griffiths, and Tiffin, supra n. 156 at 13.
R Young, Colonial Desire: Hybridity in Theory, Culture and Race, (Routlegde,
London, 1995) at 161.
178)
179)
Bhabha, supra n. 176.
180)
Ibid.
181)
Ibid.
182)
Ibid.
183)
Ibid.
184)
For an explanation of alterity see Ashcroft,Griffiths & Tiffin, supra n. 156 at 11.
185)
Ashcroft,Griffiths & Tiffin, supra n. 156 at 118-121 and Young, supra n. 178.
186)
Bhabha, supra n. 176, at 85-92.
187)
Ibid.
188)
Ibid.
Kapoor, supra n. 174. See also I Kapoor, ‘Capitalism, Culture, Agency: Dependency
versus Postcolonial Theory,’ (2002) 23(4) Third World Quarterly 647.
189)
190)
See Ashcroft, Griffiths & Tiffin, supra n. 156 at 8-9.
H Bhabha, The Location of Culture (Routlegde, 1994) at 112. See also M Foucault,
Power/Knowledge: Selected Interviews and Other Writings, 1972-1977), C Gordon eds,
(Pantheon Books, 1980) at 142.
191)
192)
Bhabha, ibid at 121.
193)
Ibid.
194)
Ibid. at 229.
Ibid. for an understanding of Salman Rushdie’s ‘Satanic Verses’ see Sten Pultz
Moslund, ‘Literature as Discourse: An Analysis of the Discursive Strategies in Salman
Rushdie's The Satanic Verses’ (2006) 61(4) Orbis Litterarum 291.
195)
196)
Bhabha, supra n. 191 at 229.
GC Spivak ‘Poststructuralism, Marginality, Postcoloniality and Value’ in Peter Collier
and Helga Geyer-Ryan (eds.), Literary Theory Today, (Polity Press, 1990) at 228. See
also the critique by R Young, White Mythologies: Writing History and the West
(Routlegde, 1990) at 152.
197)
198)
Kapoor, supra n. 189 at 652.
199)
Ibid.
200)
Bhabha, supra n. 191 at 37.
See Kapoor, supra n.189 at 652 and an analogous argument in Spivak, supra n. 19
at 291.
201)
202)
Kapoor, supra n. 189.
203)
B Moore-Gilbert, Postcolonial Theory (Verso, 1997) at 85.
204)
See Gathii, supra n. 169 at 195-199.
205)
Ibid.
206)
Ibid. at 193.
Siba, supra n.168 and A Anghie, Imperialism, Sovereignty and the Making of
International Law (Cambridge UP, 2005).
207)
208)
Anghie and Chimni, supra n. 6.
M wa Mutua, ‘The Ideology of Human Rights’ (1996) 36 Virginia Journal of
International Law 589.
209)
210)
See O Asamoah, ‘The Legal Effect of Resolutions of the General Assembly,’(1963-
1964) 3
FREE (1963-1964) 3 Columbia Journal of Transnational Law 210 and C
Joyner, ‘U.N. General Assembly Resolutions and International Law: Rethinking the
Contemporary Dynamics of Norm-Creation,’ (1981)3 California Western International
Law Journal 445.
See Declaration on the Granting of Independence to Colonial Countries and Peoples,
GA Res. 1514, UN Doc. A/4684 (14 December 1960); Declaration on the Inadmissibility
of Intervention in the Domestic Affairs of States and the Protection of their
Independence and Sovereignty, GA Res. 2131 (XX), UN Doc. A/6014 (21 December
1965) and Declaration on Principles of International Law Concerning Friendly Relations
and Co-operation Among States in Accordance with the Charter of the United Nations,
G.A. Res. 2625 (XXV), UN Doc.A/8028 ( 24 October 1970).
211)
ME Ellis, ‘The New International Economic Order and General Assembly Resolutions:
The Debate over the Legal Effects of General Assembly Resolutions Revisited,’ (1985)15
California Western International Law Journal 647.
212)
Two resolutions adopted in pursuance of this goal are the Declaration on the
Establishment of a New International Economic Order G. A Res 3201(S-V1), UN
Doc.A/9559 (1 May 1974) and the Programme of Action on the Establishment of a New
International Economic Order, G.A. Res. 3202 (S-VI), UN Doc A/9559 (Dec 12, 1974)
(hereinafter cited as Programme of Action). The ideas represented in the two documents
were refined and codified in the Charter of Economic Rights and Duties of States likewise
adopted as a General Assembly Resolution. (Charter of Economic Rights and Duties of
States, GA Res. 3281, UN Doc. A/9631(1974).
213)
EA Engle, ‘The Failure of the Nation State and the New International Economic
Order: Multiple Converging Crises Present Opportunity to Elaborate a New Jus Gentium’,
(2003) 16 St. Thomas Law Review 187.
214)
See the discussion in E McWhinney, ‘The International Law-Making Process and the
New International Economic Order, (1976) 14 Canadian Yearbook of International Law
57.
215)
216)
Ibid.
Those who opposed were Belgium, Denmark, West Germany, Luxembourg, the
United Kingdom and the United States. Austria, Canada, France, Ireland, Israel, Italy,
Japan, The Netherlands, Norway and Spain abstained.
217)
Declaration on the Granting of Independence to Colonial Countries and Peoples,
supra n. 211. Australia, Belgium, the Dominican Republic, France, Portugal, South Africa,
Spain, the United Kingdom, and the United States abstained.
218)
219)
Ellis, supra n. 212.
Opening speech at the 6th Special Session of the U.N General Assembly which
passed the NIEO declaration and Programme of Action ( UN GAOR, 28th Sess, A/ PV.
2208 ( April 10, 1974) at 2). See also WG Haight, ‘The New International Economic
Order and the Charter of Economic Rights and Duties of States’, (1975) 9 International
Lawyer 591.
220)
221)
Ellis, supra n. 212.
222)
Ibid.
223)
Engle, supra n. 214 at 191.
224)
Ibid.
225)
Ibid.
226)
Ibid. at 196.
227)
Anghie and Chimni, supra n. 6 at 82.
228)
Ibid.
229)
Engle, supra n. 214 at 196.
230)
Ibid.
A Mazrui, (1992), ‘Planned Governance and the Liberal Revival in Africa: The
Paradox of Anticipation’ (1992) 25 Cornell International Law Journal 541.
231)
232)
Ibid.
233)
RG Teitel, ‘Transitional Justice Genealogy’ (2003)16 Harvard Human Rights Journal
69.
Anghie and Chimni (n 7) at 82. See also R Falk, ‘Sovereignty and Human Dignity:
The Search for Reconciliation’ in Francis M Deng and Terrence Lyons (eds), African
Reckoning a Quest for Good Governance (Brookings Institution Press, 1997) 1- 185.
234)
D Kennedy, ‘International Law and the Nineteenth Century: History of an
Illusion,’(1996) 65 Nordic Journal of International Law 385.
235)
236)
Falk, supra n. 234.
237)
Ibid.
Ibid. See also RG Teitel, ‘The law and Politics of Contemporary Transitional Justice’,
(2005) 38 Cornell International Law Journal 837.
238)
See A Anghie, ‘Decolonizing the Concept of ‘Good Governance’, in B G Jones (eds)
Decolonizing International Relations, (Rowman & Littlefield Publishers, 2006) 1-275 at
110 and N Krisch, ‘International Law in Times of Hegemony: Unequal Power and the
Shaping of the International Legal Order’, (2005) 16(3) European Journal of
International Law 36.
239)
This concern is noted by the editors of the International Journal of Transitional
justice, see; Editorial Note 2007(1) International Journal of Transitional Justice 1 at 3.
See also C Bell, C Campbell and F Ni Aolain, ‘The Battle for Transitional Justice:
Hegemony, Iraq and International Law’ in J Morison, K McEvoy, and G Anthony (eds),
Judges, Transition and Human Rights Cultures: Essays in Honour of Stephen Livingstone,
(Oxford UP, 2007).
240)
241)
See Anghie and Chimni, supra n. 6 at 85-86.
242)
Ibid.
The term ‘subject-constituting project’ is borrowed from Gayatri C Spivak, A Critique
of Postcolonial Reason: Toward a History of the Vanishing Present (Harvard UP,1999) 1464. See also A Orford, ‘Feminism, Imperialism and the Mission of International Law’
243)
(2002) 71 Nordic Journal of International Law 275. B Bowden, ‘The Colonial Origins of
International Law. European Expansion and the Classical Standard of Civilization’ (2005)
7 Journal of the History of International Law 1.
244)
Bell, Campbell, and Ni Aolain, supra n. 240.
245)
Ibid.
Remarks by the George W Bush the then US President at the 20th Anniversary of
the National Endowment for Democracy United States Chamber of Commerce
Washington; (6 November 2003), available at: < http://www.whitehouse.gov/news>.
246)
247)
Orford, supra n. 243 at 276.
248)
Ibid. at 276 -277.
249)
The terminology used here is borrowed from Said, supra n. 163.
See the then British Prime Minister, Tony Blair’s speech delivered at a joint meeting
of the U.S. Congress on Thursday, July 17, 2003.The transcript of his speech is available
at: < http://www.cnn.com/2003/US/07/17/blair.transcript/>.
250)
JT Gathii, ‘Representations of Africa in Good Governance Discourse: Policing and
Containing Dissidence to Neo-Liberalism,’ (1998-1999) Third World Legal Studies 65.
251)
252)
Ibid.
253)
Ibid.
254)
Blair (n 250).
JT Gathii, ‘Dispossession through International Law: Iraq in Historical and
Comparative Context,’ in BG Jones (eds), Decolonizing International Relations, (Rowman
& Littlefield Publishers, 2006) 131-154.
255)
See Lyon, (n155) and S Skogly, ‘Crimes against Humanity Revisited: Is there a Role
for Economic and Social Rights’, (2001) 5(1) The International Journal of Human Rights
58.
256)
J Oloka-Onyango, ‘Reinforcing Marginalized Rights in An Age of Globalization:
International Mechanisms, Non-State Actors, And the Struggle for People’s Rights in
Africa’, (2003) 18 American University International Law Review 857. See also Articles
15, 16, 17 and 18 African Charter on Human and Peoples' Rights, adopted June 27,
1981, OAU Doc. CAB/LEG/67/3 rev. 5, entered into force 21 October 1986.
257)
Group rights are provided for in Articles 20, 21, 22, 23, 24 and 25 of the African
Charter. See also Makau wa Mutua, ‘Why redraw the Map of Africa: A moral and Legal
Inquiry’ (1995) Michigan Journal of International Law 11 at 13.
258)
F Ni Aolain, ‘Political Violence and Gender During Times of Transition,’ (2006) 15
Columbia Journal of Gender and Law 829.
259)
See M wa Mutua, ‘Never Again: Questioning the Yugoslav and Rwanda Tribunals,’
(1997) 11 Temple International and Comparative Law Journal 16. See the response in
260)
Peter Rosenblum, ‘Save the Tribunals; Salvaging the Movement, A Response to Makau
Mutua’, (1997) 11 Temple International and Comparative Law Journal 190.
Henry J Richardson III. (1996), ‘Failed States, Self-Determination, and Preventive
Diplomacy: Colonialist Nostalgia and Democratic Expectation’, 10 Temple International
and Comparative Law Journal 1.
261)
See Simon. M. Weldehaimanot, ‘Arresting Al-Bashir: The African Union's Opposition
and the Legalities’ (2011) 19 African Journal of International and Comparative Law 208
and M Ssenyonjo, ‘The International Criminal Court arrest warrant decision for President
Al Bashir of Sudan’, (2010) 59 (1) International & Comparative Law Quarterly 205.
262)
263)
Bell, Campbell, and Ni Aolain, supra n. 240 and Mutua, supra n. 258.
See for example, the voting patterns in the UN Security Council Draft Resolution on
‘Peace and Security-Africa( Zimbabwe) S/2008/447,vetoed by China and the Russian
Federation. See also SC/9387.
264)
265)
Ibid.
266)
Ibid.
267)
Ibid.
268)
Orford, supra n. 243 at 285.
269)
Gathii, supra n. 255 at 139-143.
270)
Orford, supra. 243 at 288-289.
Gathii, supra n. 255 at 143. For a legal analysis on the relationship between the
transformation of an economy, the right to self-determination and the manner of
occupation, see N Ando, Surrender, Occupation and Private Property in International: An
Evaluation of US Practice in Japan ( Oxford UP, 1991) 1-224.
271)
272)
Gathii, supra n. 255 at 142.
273)
Ibid.
274)
Ibid. at 143.
See Teitel, supra n. 16 and H J Steiner, ‘Do Human Rights Require a Particular Form
of Democracy’, in AO Sherif & E Contran (eds), Democracy, The Rule of Law and Islam
(Springer, 1999) at 193-210.
275)
Ibid. See also Henry J Steiner, R Goodman and P Alston, International Human Rights
in Context: Law, Politics, Morals (Oxford UP, 2000) 1-1497 at 1310 -1311.
276)
277)
Steiner et. al. ibid at 1314.
278)
Ibid.
279)
Ibid.
280)
Orford, supra n. 243, at 280- 282.
Heywood, supra n. 45 at 15-52 and T Li-ann, ‘Rule of Law within a Non-liberal
“Communitarian” Democracy: The Singapore Experience’, in P Randall (eds), Asian
Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian
Countries, France and the U.S. (Routledge, 2004) at 183-224.
281)
282)
Gathii, supra n. 251, at 67.
283)
Orford, supra n. 243.
See M Ssenyonjo, ‘Accountability of Non-State Actors in Uganda for War Crimes and
Human Rights Violations,’ (2005) 10(3) Journal of Conflict and Security Law 405, S
Skogly, ‘Transnational Human Rights Obligations’ (2002) 24(3) Human Rights Quarterly
781 and ME O’Connell., ‘Comments: Enhancing the Status of Non-State Actors through a
Global War on Terror’, (2004 -2005) 43 Columbia Journal of Transnational Law 435.
284)
285)
Orford, supra n. 243 at 287-293.
286)
Anghie and Chimni, supra n. 6 at 85-86.
287)
Ibid.
288)
Bhabha, supra n. 176, at 85-92.
289)
Ibid.
290)
See notes 238–289 above.
291)
Teitel, supra n. 16; Elster, supra n. 51 and Kritz, supra n. 58 and n. 73.
292)
Teitel, supra n. 108.
See DS Papp, ‘National Liberation during Detente: The Soviet Outlook’ (1976-1977)
32 International Journal 82.
293)
See S Whitworth, ‘Where is the Politics in Peacekeeping,’ (1994 -1995) 50
International Journal 427.
294)
SA Notar ‘Peacekeepers as Perpetrators: Sexual Exploitation and Abuse of Women
and Children in the Democratic Republic of the Congo,’ (2006)14 Journal of Gender,
Social Policy & the Law 421.
295)
296)
Orford, supra n. 243 at 287.
297)
Blair, supra n. 250.
298)
Bhabha, supra n. 177, at 85-92.
299)
Ibid.
Para 3 and 8 preamble African Charter, supra n. 257. See also Oloka-Onyango,
supra n. 257. See also J Swanson, ‘The Emergence of New Rights in the African Charter,’
(1991) 1 New York Law School Journal of International and Comparative Law 307.
300)
301)
Oloka-Onyango, supra n. 257 and Swanson, supra n. 300.
Social and Economic Rights Action Centre & the Centre for Economic and Social
Rights v. Nigeria Communication No. 155/96, ara 68.
302)
303)
Para. 4 preamble African Charter, supra n. 257.
Gathii, supra n. 251 and A Reilly, ‘Can liberalism be PC: Duncan Ivison‘s Postcolonial
Liberalism’, (2003) 28 Australian Journal of Legal Philosophy, 171. For a contrary view
see D Ivison, Postcolonial Liberalism, (Cambridge UP, 2002) 1-214.
304)
305)
Ibid.
306)
For an analogous view see Krisch, supra n. 239 and Kapur supra n. 19.
307)
Kapur, ibid at 29-36.
308)
Ibid.