Compartmentalizing Transitional Justice

In August this year, three French investigating judges were appointed to assess allegations that the Bank BNP Paribas was complicit in the Rwandan Genocide. According to the Financial Times, “[t]he bank is accused of transferring more than $1.3m of funds used to finance the purchase of 80 tonnes of weapons by a Rwandan general that allegedly broke a UN embargo and helped to arm the perpetrators of the country’s genocide.” Because much of my scholarly engagement with international criminal justice has focused on these sorts of allegations, for better or worse, I tend to assess normative accounts of the field with cases like this in mind. In what follows, I use the BNP Paribas case as a theme in commenting on Colleen Murphy’s excellent book, entitled The Philosophical Foundations of Transitional Justice (CUP, 2017). In part, I use this frame to shed light on an element of atrocity’s etiology that, in popular imagination at least, still seems shrouded in denial. More importantly for present purposes, though, I wonder if cases involving business participation in atrocity might offer a slightly different vantage point from which to evaluate conceptual models of transitional justice.

Murphy’s insightful account of the field points to four different features of societies in transition that make justice claims in these contexts a breed apart from those that apply in stable democracies. Contrary to Posner and Vermeule, Murphy eloquently argues that transitional justice is not like normal justice; it is qualitatively different because of the fundamentally distinct circumstances that constitute periods of political transition. As she explores in great depth, these surrounding political circumstances include: (a) pervasive structural inequality; (b) normalized collective and political wrongdoing; (c) serious existential uncertainty; and (d) fundamental uncertainty about authority. The combination of these circumstances in transitional contexts means that ordinary ideas of retribution, corrective justice, and restitution do not cater to the needs of affected societies. The misfit with these usual concepts of justice is so acute that we must craft an entirely new, distinct brand of justice that follows its own logic and answers to its own self-consciously defined first principles.

There is much I am attracted to in this approach and its brilliant execution. Let me start by pointing to the project’s apparent grounding in philosophical pragmatism. Surely, concepts of justice are context-sensitive. Undoubtedly, a major part of the problem for the field lies in avoiding blunt universalisms that do further violence to societies struggling to shed the heavy yoke of mass violence. At the same time, Murphy is clearly aware of the dangers of venerating the local at all costs; she astutely highlights the difficulties with over-correcting in favor of the local where she observes that “[r]adical contextualism can be just as problematic as an un-nuanced universalism.” (p. 81). Thus, transitional justice is philosophically pragmatic (by the by, I use this tradition to think about corporate responsibility here). Yet, if the concept of justice in transitional justice will always be context-sensitive, this leaves me wondering about the borders between the local and universal in Murphy’s self-contained concept of transitional justice, how this compartmentalized approach to justice will interface with others in a global society, and whether modulations in type of actor will affect the theory.

To begin, I am not entirely clear whether the BNP Paribas case falls within the bounds of transitional justice, on Murphy’s thoughtful definition or any other. On the one hand, it makes sense to treat the case as an element of transitional justice, assessing it against the very insightful standards Murphy has articulated. Apart from the alleged causal link to the genocide, our ability to alleviate the four characteristics that are particular to transitional societies is probably heavily dependent on transforming business—absent global economic revolution, post-conflict societies desperately need direct foreign investment that makes its way to people in survival economies instead of fuelling kleptocratic governments, corrupt patronage networks and brutal armed groups. On the other hand though, foreign economic actors are not clearly part and parcel of the affected society, precisely because they are outsiders culturally and geographically. The primary community of interest in discussing the moral legitimacy of the BNP Paribas case is likely French, not Rwandan, so the conceptual standards we would employ to scrutinize the case’s conceptual propriety lie beyond the special realm of transitional justice.

If the borders of a siloed concept of transitional justice are slightly unclear, the foregoing leads me to wonder about whether there is a geographical element to this theory. Are the principles of justice that govern transitional justice necessarily linked to features of a discrete, local political order? In other words, Murphy’s argument skillfully implies a plurality of justice (not just law), but I wonder if the different compartments of justice we create by disaggregating the concept aren’t overly geographically bound. We rightly think of Gacaca, the Rwanda Tribunal, and a host of other institutions and programs undertaken in Rwanda as falling within the transitional justice paradigm, in large part because the four characteristics that constitute the transitional paradigm stem from a single society reeling after mass violence within a single country. But importantly, the causal factors that gave rise to these atrocities were not geographically constrained in the same way. Foreign businesses in non-transitional societies allegedly contributed to the Rwandan Genocide too. So, which concept of justice—which set of principles—will govern the BNP Paribas case?

A causal account of atrocity might also suggest different rationale for justice. In her helpful discussion, for instance, Murphy points out that retribution does not easily match the needs of transitional societies since it assumes that wrongdoing is “deviant, individual and personal.” (p. 59). To focus just on deviance, the argument is that accountability is usually predicated on infrequent transgressions within an otherwise compliant society, so the retributive model collapses under the weight of widespread, normalized mass violence. Personally, I have always harbored vague misgivings about this argument, since it seems to assume a very temporally static, geographically bound notion of deviance (crimes in Nazi Germany were normalized at the time but deviant by even local standards measured before and after the war, and similarly, crimes in Rwanda were normalized there in 1994, but judged deviant by a thin concept of global community even at the time). Both these intuitions are very disputable, but there is another that business cases help bring into sharper relief—perhaps the actions of a particular foreign company implicated in atrocity were highly deviant even when violence was normalized for local citizens?

So, if the validity of justifications for punishment turn on which justice paradigm we choose and the type of actor implicated, these realities invite a wider set of reflections of how a compartmentalized concept of transitional justice interfaces with others in a globalized society. Here too, I wonder if the self-contained account is water-tight. For example, if globalization was born in colonialism, and actions of many foreign companies represent modern iterations of longstanding commercial practices consummated there, is there not a risk that a state-centric, geographically grounded concept of transitional justice will overlook the long history of foreign actors fomenting bloodshed for profit that at least dates to Leopold in the Congo? As for the present, what can we say about spikes in global demand for coltan for cellphones, tin for circuit boards and now cobalt for car batteries playing an important causal role in bringing about the mass violence transitional justice exists to remedy? Is there a danger that the very structure of transitional justice will leave these out?

Perhaps even the element of “transition” lends itself to this concern. Murphy rightly cites to a literature that queries whether transition matters to transitional justice, but cases like BNP Paribas add a new angle to those perspectives. In a conversation I had recently with the leading Argentine prosecutor of dictatorship-era crimes, he explained that as far as he could tell, the transition only implicated a particular cadre of political elites: “as for the businesses that supported the dictatorship, they remained the same before and after the transition.” If corporations are merely auxiliary to brutal authoritarian rule, this commercial continuity across political transition is probably less problematic, but if businesses enjoy a major share of power in affected communities, political regime change may not constitute a transition sufficient to move us into an analytically separate justice paradigm. Thus, for the businesspeople, it can be unclear what moral work the transition does in militating for or against their accountability.

I hope some of the foregoing provides useful food for thought, albeit from a relatively non-traditional vantage point. Without doubt, Professor Murphy’s rich and important book will animate discussions such as these for decades to come.