The International Journal of Transitional Justice, Vol.

2, 2008, 266–291,
doi: 10.1093/ijtj/ijn022
Advance Access publication: 30 October 2008

Effects of Invisibility: In Search of the

‘Economic’ in Transitional Justice

Zinaida Miller∗

Abstract1
This article argues that the field of transitional justice – in both its institutional and schol-
arly aspects – has historically excluded issues of economic inequality, structural violence,

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

redistribution and development. It seeks to combine a conceptual critique with concrete
institutional examples in an effort both to highlight the theory/practice relationship within
the field and to anchor theoretical claims in particular examples. The first part of the arti-
cle briefly describes the chronological and regional iterations of transitional justice in light
of its nature as a global enterprise. The second part of the article examines the constructed
invisibility of economic questions in the literature and institutions, suggesting that exclu-
sion derives from particular patterns: ignoring the issues altogether, treating inequality or
structural violence as contextual background rather than central issues in transition, or
reducing economic concerns to a narrowed discussion of reparations. The final section
outlines three possible costs of economic invisibility: (1) an incomplete understanding of
the origins of conflict; (2) an inability to imagine structural change due to a focus on repa-
rations; and (3) the possibility of renewed violence due to a failure to address the role of
inequality in conflict.

Introduction
Recent decades have brought with them not just dramatic changes in global and
national political and economic arrangements but also a set of mechanisms that
claim the ability to help states make the leap from one regime to another: the
instruments of transitional justice. Both practical tools and a discursive project,
transitional justice mechanisms simultaneously construct and are constituted by
new regimes in the aftermath of significant social change. Trials, truth commissions
and other transitional ‘tools’ are utilized explicitly to enforce the norms of a new
liberal state (the rule of law, the defeat of impunity, the strengthening of democratic
institutions) and to memorialize a violent past in the service of creating a peaceful
future.
Transitional justice as both literature and practice offers more than just a set of
neutral instruments for the achievement of the goals of justice, truth and recon-
ciliation. It also serves to narrate conflict and peace, voice and silence, tolerable
∗ Visiting Fellow in International Studies, Brown University, USA. Email: [email protected]
1 I am grateful to Erik Doxtader, Daphna Golan-Agnon, David Kennedy, Vishaal Kishore, Martin
Miller, Ylana Miller, Martha Minow and Peter Uvin for their astute insights and helpful comments
on this article. I also thank participants in workshops at Brown University and the Hebrew University
and the anonymous reviewers of the IJTJ for their excellent suggestions.


C The Author (2008). Published by Oxford University Press. All rights reserved.

For Permissions, please email [email protected].

 Effects of Invisibility 267

structural violence and intolerable physical atrocity. Ultimately, transitional justice

is a definitional project, explaining who has been silenced by delineating who may
now speak, describing past violence by deciding what and who will be punished
and radically differentiating a new regime in relation to what actions were taken
by its predecessor. Despite its claims to exposure, revelation and memorialization,
the project of transitional justice may simultaneously perpetuate invisibility and
silence. The literature, institutions and international enterprise of transitional jus-
tice historically have failed to recognize the full importance of structural violence,2
inequality and economic (re)distribution to conflict, its resolution, transition itself
and processes of truth or justice seeking and reconciliation.
Three areas of economic concern to ‘transitional’ or postconflict societies need
to be examined from a semichronological perspective: (1) the economic roots and

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

consequences of the conflict that transitional justice institutions seek to narrate,
prosecute and overcome; (2) the economic liberalization that accompanies political
transition in many transitional contexts, often constituting a lack of significant
socioeconomic redistribution of resources in the postconflict state; and (3) the
connected development plans of the new government for the future. None of these
issues historically have been given adequate attention in the transitional justice
institutions and literature, although each has been tentatively addressed in certain
contexts and by particular scholars.
The reason might be that none appears self-evidently related to transitional
justice. An argument might be made that each category is in some sense beyond
the literal mandate or conceptual apparatus of the field, and that to include past
economic repression, a present without redistribution or a future inability to over-
come longstanding national inequality would dilute the purposes and possible
achievements of transitional justice institutions. Surely, it is impossible for tran-
sitional instruments to cope with both the prosecution and memorialization of
mass atrocities and the complicated business of redistributing wealth or creating a
development plan for the new dispensation. Implicit within this argument, how-
ever, is the assumption that the instruments, and their inclusion or exclusion of
economic considerations, have no practical effect on the questions of inequality,
redistribution or development. While this line of argumentation may not go so
far as to assume apolitical justice mechanisms (although the increased legalism of
transitional justice can bring with it an assumption of neutral technocratic insti-
tutions), it does ignore the distributional effects of the instruments themselves.
To effect a binary separation between the economic and justice realms by barring

2 Johan Galtung, ‘Violence, Peace, and Peace Research,’ Journal of Peace Research 6(3) (1969): 167–
191. Although some scholars have asserted that the term ‘structural violence’ may be so broad as to
be both conceptually and empirically indeterminate (see, for example, Roland Paris, At War’s End:
Building Peace After Civil Conflict (Cambridge: Cambridge University Press, 2004)), its relevance
in this case derives from its ability to draw ‘our attention to unequal life changes, usually caused
by great inequality, injustice, discrimination, exclusion, and needlessly limiting people’s physical,
social, and psychological wellbeing.’ Peter Uvin, Aiding Violence: The Development Enterprise in
Rwanda (West Hartford, CT: Kumarian Press, 1998), 105.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

268 Z. Miller

discussion of the former in the latter reveals a particular politics practiced in the
constitution of the new posttransition state.
In an effort to better understand the historical exclusion of economic questions
from the field, as well as to outline the costs of omission, this article outlines some
methods by which attention to the economic dimensions of conflict and transition
has been suppressed and offers a list of some of the stakes involved. In doing so,
it seeks to combine a conceptual critique with concrete institutional examples in
an effort both to highlight the theory-practice relationship within the field and to
anchor its theoretical claims in particular examples. The first part of the article
briefly describes the chronological and regional iterations of transitional justice in
light of its nature as a global enterprise. The second part examines the constructed
invisibility of economic questions in the literature and institutions. The third part

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

outlines possible costs of this invisibility.
Transitional justice mechanisms define key issues related to the past which must
be resolved. By leaving economic development, issues of resource distribution or
inequality of power or wealth to separate courts or to executive control, transi-
tional justice institutions implicitly tell society that development and conflict may
be separated in a fair fashion and that inequality itself is not to be prosecuted or
amnestied. In one sense, this might simply echo the limitations of human rights
discourse more generally, in which questions of socioeconomic rights are con-
sistently underplayed while those of civil and political rights are emphasized, or
where redistribution is generally backgrounded for the sake of punishing clearly
defined crimes under a standard of individual accountability.
The effects have a deeper reach than simply a repetition of the problems of hu-
man rights. Both conflict and transition are entrenched as stories of political and
legal change and of physical violence rather than as tales of economic liberaliza-
tion or structural violence. The mandate of a commission or the list of crimes to
be tried at a court means that, to some degree, the decision about what story to
tell is predetermined, as is the manner of addressing the conflict (and sustainably
resolving it for the future). Although a government may separately pursue devel-
opment options, the redistribution of land or other plans for economic change,
the argument here is that the divorce of those strategies from transitional justice
mechanisms allows a myth to be formed that the origins of conflict are political
or ethnic rather than economic or resource based. It suggests that inequality is a
question of time or development rather than the entrenched ideology of elites, as
well as that the need to memorialize the past does not require the narration of past
economic oppression.

Transitional Justice: a Global Enterprise

In order to comprehend the literature on transitional justice, we must first inter-
rogate the terminology used to define the diffuse field it describes. The notion
of transitional justice is attached alternately to a definition of periods of state

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 269

transition and to a common list of institutions. As Chandra Sriram states:

The study and practice of transitional justice analyzes policy choices made by regimes
emerging from armed conflict and/or authoritarian rule with regard to accountability
for past abuses, stability, reform, and democratization.3

Scholars have defined and classified the transitional justice field in three primary
ways: (1) through its tools, instruments and institutions;4 (2) through a chrono-
logical assessment of either institutional development or the scholarship on the
field;5 and (3) by elucidating versions of regime change that lead to an enactment
of transitional justice.6
On the operational level, transitional justice has come to be associated with a
series of institutional approaches to investigating or addressing the downfall of
one regime and the ascendance of the next, namely international or national trials,

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

truth commissions (or other truth-seeking mechanisms), reparations and lustra-
tion/administrative purges.7 Some scholars include constitution making in a new
democracy in the transitional legal effort; others add the relatively recent practice of
transnational litigation.8 In certain areas, ‘local’ justice or reconciliation tools have
been employed, such as Gacaca in Rwanda and mato oput in northern Uganda. In
a growing number of cases, different mechanisms are utilized in tandem. Because
reparations usually are linked to another of the mechanisms described, whether
ordered by a court or recommended by a commission, they will be discussed in
detail below as a tool deployed by the institutions to address economic factors in
conflict.
Another way the literature describes the scope of transitional justice is through a
chronological description of the field’s institutional and/or scholarly development.
Most of the literature locates the beginning of transitional justice (and often the
commencement of the human rights movement) in the post-Second World War
Nuremberg and Tokyo military tribunals set up by the victorious Allies.9 Ruti Teitel
offers a useful three-phase paradigm for understanding the historical evolution of
3 Chandra Lekha Sriram, ‘Transitional Justice Comes of Age: Enduring Lessons and Challenges,’
Berkeley Journal of International Law 23(2) (2005): 506.
4 Ruti Teitel, Transitional Justice (New York: Oxford University Press, 2002); Aeyal M. Gross, ‘The
Constitution, Reconciliation and Transitional Justice: Lessons from South Africa and Israel,’ Stan-
ford Journal of International Law 40(1) (2004): 47–104.
5 See, for example, Bronwyn Anne Leebaw, ‘The Irreconcilable Goals of Transitional Justice,’ Human
Rights Quarterly 30(1) (2008): 95–118.
6 See, for example, Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (New
York: Cambridge University Press, 2004).
7 See, for example, Priscilla Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions
(New York: Routledge, 2001); Teitel, supra n 4; Gary Bass, Stay the Hand of Vengeance: The Politics
of War Crimes Tribunals (Princeton: Princeton University Press, 2000); Martha Minow, Between
Vengeance and Forgiveness: Facing History after Genocide and Mass Atrocity (Boston: Beacon Press,
1998); Neil Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes,
vols. I–III (Washington, DC: United States Institute of Peace Press, 1995); Mark Osiel, Mass Atrocity,
Collective Memory, and the Law (New Jersey: Transaction Publishers, 1999).
8 Naomi Roht-Arriaza, The Pinochet Effect: Transitional Justice in the Age of Human Rights (Philadel-
phia: University of Pennsylvania Press, 2005).
9 In a departure from this structure, both Jon Elster and Gary Bass place transitional justice in a
broader historical framework. Elster, supra n 6; Bass, supra n 7.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

270 Z. Miller

transitional justice in practice: a first phase beginning in 1945, a second phase

in the last quarter of the 20th century, as the Soviet Union collapsed and Latin
America and Eastern Europe underwent extraordinary shifts in political and eco-
nomic arrangements, and a third contemporary phase in which transitional justice
‘moves from the exception to the norm.’10
In the vast majority of cases, transition occurs in conjunction with a project
of economic and/or political liberalization.11 In one vivid depiction, transitional
justice describes ‘a universe of options for the transformation of society from a
killing machine to a humane government firmly embracing the rule of law.’12 Thus,
the manner of transition, the shape of the new and old regimes and the relative
continuing power of the past government heavily influence the formulation of
transitional justice institutions. None of these factors, however, undermines the

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

general conception of transition itself, which retains its centrality in defining the
need for such mechanisms. The reliance on ‘transition’ as a moment of disconti-
nuity and rupture generally means that chronological parameters for past, present
and future are set by transitional institutions themselves. Physical violence of a
particular type or the suppression of expression in a specific manner becomes the
mark of the old regime, and its end becomes the definition of the new. The choice
of mechanism, therefore, matters less in this context than the commonality among
the institutions in defining what has gone before and what will come after the
mechanism finishes its work, marking the end of transition.
Teitel argues that the third phase – the contemporary moment – marks
the ‘expansion and normalization of transitional justice.’13 Similarly, Kieran
McEvoy notes that transitional justice has become ‘normal, institutionalized and
mainstreamed.’14 The creation of the International Criminal Tribunal for the
Former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for
Rwanda (ICTR) in 1995, as well as the ratification of the Rome Statute, which
opened the International Criminal Court (ICC) in The Hague, have entrenched
transitional justice mechanisms as expected responses to ongoing global violence.

10 Ruti Teitel, ‘Transitional Justice Genealogy,’ Harvard Human Rights Journal 16 (2003): 71–72.
11 Some authors deliberately have defined transitional justice in a way that might remove the asso-
ciation with liberalization. See, for example, Naomi Roht-Arriaza and Javier Mariezcurrena, ed.,
Transitional Justice in the Twenty-first Century: Beyond Truth versus Justice (Cambridge: Cambridge
University Press, 2006). However, the overarching framework of individual rights discourse, the
pressure to establish the rule of law and the frequency of transition to a market economy ac-
companying political transition make the separation between transitional justice and liberalism
difficult to prove. As a country study, Rwanda defies in certain ways the linkage to liberalization. It
represents one of the most dramatic examples of rupture and transition, including both civil war
and genocide and ending with a complete overthrow of one regime by another. Most observers
today, however, describe the current government as neither liberal nor democratic. See, Front
Line Rwanda, Disappearances, Arrests, Threats, Intimidation, Co-option of Human Rights Defenders,
2001–2004 (Dublin: Front Line, 2005). See also, Amnesty International, World Report: Rwanda
(London: Amnesty International, 2006).
12 David J. Scheffer, ‘The Tool Box, Past and Present, of Justice and Reconciliation for Atrocities,’
American Journal of International Law 95(4) (2001): 970.
13 Teitel, supra n 10 at 89.
14 Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice,’ Journal
of Law and Society 34(4) (2007): 412.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 271

As Rosemary Nagy has noted, contemporary transitional justice has become a

‘global project,’ in which the question has become ‘not whether something should
be done after atrocity but how it should be done.’15 Transitional justice operates
through the actions of a series of groups: policy makers who plan and implement the
institutions; victim groups defined by commissions or courts; the larger citizenry
implicated, but not named, by a final report or court decision; scholars who write
the literature about specific country contexts or the phenomenon in general; and
practitioners who work for nongovernmental organizations (NGOs) that consult
on the possible manner of transition. Although it can be difficult to map the precise
influence of one area upon another, commentary in the literature and descriptions
of the processes of formation can reveal the degree to which one area models
transition for another. The consistency of language and terminology employed

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

in a wide diversity of postconflict contexts reveals a global phenomenon and its
seemingly successful export/import from one country or region to another over
the course of the past several decades. The quest to reveal a blindness in the field
springs from the global nature of the enterprise itself; the movement of ideas about
and modes for transition bespeaks not only a series of ‘lessons learned’ but also
potentially the transfer of ideological preoccupations that underpin the seemingly
neutral discourse of the project.
Naomi Roht-Arriaza locates the expansion of transitional justice that Teitel de-
scribes within the larger move toward institution building in the 20th century. She
argues that the ‘new institutions of global justice’ are balanced and complemented
by ‘the networking approach, featuring a . . . group of existing national courts
and webs of international and national lawyers and organizations.’16 Literature as
well as practice have proliferated in the past 20 years. The establishment of the
International Center for Transitional Justice in 2001, the publication of key texts
on the enterprise17 and the growing interest among law students and others in the
practice and study of this relatively new field all indicate a new focus on transitional
justice. Nagy uses the term ‘global project’ to describe the field
in order to capture the three-dimensional landscape of transitional justice (local, na-
tional, global) and its location within broader processes of globalization. It is a ‘project’
by virtue of the fairly settled consensus . . . that there can be no lasting peace without
some kind of accounting and that truth and justice are complementary approaches to
dealing with the past.18

Although further study is required to fully map and analyze the movement of
ideas and models from one country or region to another, one cannot fail to note
the growing transnational and global nature of the field.
The cross-fertilization of ideas by elites or by interested parties who have partic-
ipated in past transitional justice institutions could conceivably reflect inaccurate
15 Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections,’ Third World Quarterly
29(2) (2008): 276.
16 Roht-Arriaza and Mariezcurrena, supra n 11 at 202.
17 For example, see Kritz, supra n 7.
18 Nagy, supra n 15 at 276.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

272 Z. Miller

impressions, depending upon their interests in promoting a success story about

their own work. To some degree, this may be an inevitable consequence of a de-
sire for guidance from individuals who have been through similar experiences
of transition. It also means, however, that, in addition to potentially overplaying
the success of an institution when discussing it with others, those who come to
a conference or a country to describe their experience may themselves be unable
to note the issues made invisible by the operation of their particular mechanism.
Without this perspective, the same mistakes may easily be perpetuated, in a way
that bespeaks not a conspiracy of interests but a coherence of blindness.
The close interrelationship between policy makers who create institutions or
write mandates and scholars who describe and critique the field creates a ‘snowball
effect’ not only from one mechanism to another but also between each wave

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

of literature and each new institution. Despite rhetoric about the capacity of
transitional justice to foster sustainable peace, implement the rule of law and
create national reconciliation, little account may be taken of the possibility that
these interests might clash, that the actors involved might have different priorities19
or that the move to democracy may be accompanied by controversial economic
programs that promote liberalization.

The Invisibility of Economics

Transition frequently encompasses at least two major social changes: political up-
heaval and economic transformation. The political liberalization of society in al-
most every case brings with it a version of economic liberalization, whether through
the structural adjustment plans of the World Bank and the International Monetary
Fund, negotiations between the new regime and the old rulers or the opening of
markets in transitional economies. While transition frequently bespeaks economic
liberalization, it also potentially opens the possibility for recognizing past economic
injustice, confronting the role of multinational corporations or resource inequality
in conflict and altering present or future inequality through redistribution. All too
often, however, this potential is lost in the reality of institutional construction. The
literature and institutions of transitional justice intersect in their exclusion of the
economic. What might be merely silence on the part of one author in a particular
work or of one institution in its specific mandate (prioritizing certain topics over
others for a specified reason) can be seen in a broader sense to effectively bar or
prohibit substantive discussion of the economic elements that arguably help to
constitute both transition and justice.

Sins of Omission: the Literature

Proving silence is a difficult task. Further, the absence of a particular discussion
in certain works cannot be taken as evidence of a deliberate effort of omission.
In the context of a factor as striking and significant as economic questions or

19 Leebaw, supra n 5.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 273

structural violence in transition, however, the pattern of ignoring these issues

becomes particularly meaningful.
Silence occurs not only through the literal absence but also through the tendency
either to mention inequality or structural violence as a problem and then to ignore
it or to background structural factors in favor of more obvious concerns about
physical violence. In this sense, mention of the idea that discussion of economic in-
equality or structural violence is missing might appear to address the absence itself,
temporarily making visible what was hidden, without substantively addressing it.
The utterance might appear as a remedy when, in fact, it further backgrounds the
problem. As the present issue of the International Journal of Transitional Justice
demonstrates, along with some notable recent academic literature, issues of devel-
opment and inequality may become the next frontier of scholarly and institutional

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

debates on transitional justice. In order to understand the ways in which the field
has developed a language and practice that tends to bar discussion of the economic –
and thus of the political-distributional consequences of transitional justice – it is
crucial to map the manner in which the exclusion has been established historically.
A survey of the literature indicates that commentators’ failure to address these
issues often occurs simply through the discussion of a broad canvas of transitional
justice concerns that fails to notice this one. Alternately, passing reference is made
to structural factors as if to a problem that no one has yet found a way to re-
solve. Beyond a brief mention of the growing gap between rich and poor in the
wake of the Cold War and the concomitant seductiveness of using the ‘backward-
looking’ project of transitional justice rather than perhaps more progressive ‘justice
projects,’ economic issues play almost no role in Teitel’s genealogy of transitional
justice.20 Economic questions and their relationship to the process of liberalization
or ethnic/political conflict come to serve primarily as background to seemingly
more ‘salient’ (and familiar) political questions.
In his extensive discussion of the history of transitional justice, Jon Elster ad-
dresses the economic quandary only by focusing on the limited availability of
resources for transitional justice mechanisms. He fails to discuss the possibility
that the effects of economic transition might themselves be part of a transitional
justice mechanism.21 His language explicitly divides the ‘justice’ realm from the
‘economic’ realm, assuming that the former will look backward, in a sense, toward
accountability while economic changes operate in a separate domain and simply
affect the resources available to create appropriate justice institutions. In his con-
clusion for a collection of essays examining the possibilities for peace and justice
after civil conflict, Nigel Biggar summarizes seven factors addressed by the authors
included in the volume. As with Elster, these factors contain issues of economics
only in terms of constraints on the exercise of some versions of justice. Biggar sug-
gests that political leaders have a ‘moral responsibility’ to ‘look after the genuine
interests of their people,’ which he views as including justice ‘as well as material

20 Teitel, supra n 10.

21 Elster, supra n 6.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

274 Z. Miller

wealth and physical security.’22 Once again, economic growth features primarily
as a background fact.
In the literature on the Argentine transition, the implications of the neoliberal
economics that underpinned the transition operate essentially as a backdrop to, but
wholly separate from, the discussion of transitional justice. Owen Fiss mentions
that because President Carlos Menem ‘did not have the economy fully under
control’ in 1990 when a group of military officers attempted mutiny, he ‘still
needed the support of the sectors of the population loyal to the military.’ For
this reason, ‘Menem took the almost inevitable next step: he pardoned all those
who had already been convicted.’23 The economy functions here as a backdrop
to Fiss’ central discussion, and the economic transition becomes a limitation on
the president’s ability to enforce the rule of law and therefore on the strength

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

of Argentine democracy. The focus on rights, even in the broader social sense
Fiss advocates rather than the narrowly legalistic one often found in international
courtrooms, seems to preclude the possibility of focusing on that which is so
adamantly left in the background.
Carlos Acuña more explicitly raises the connection between the economic crisis
in Argentina and the liberalization project, which ‘meant a radical transformation
of the power and nature of the armed forces as a political actor and [is] impossible
to dissociate from the process of transitional justice.’24 Although he cites a slightly
more causal link between economic factors and transition – in particular, recog-
nizing the relationship between the distribution of power and wealth – Acuña falls
one step short of completing the analysis. He retains the common temptation to
leave the economic aspects of transition in the background, using them primarily
to explain the actions of the military and its influence on the transition.
Although lack of space necessitates a limited number of examples here, the oc-
clusion of economic questions from the literature on transitional justice has been
markedly rampant.25 In different ways, Kieran McEvoy and Louise Arbour have
both noted the influence of legalism on the field, which tends to narrow the schol-
arly and institutional conceptions of the manner in which transitional instruments

22 Nigel Biggar, ‘Conclusion,’ in Burying the Past: Making Peace and Doing Justice After Civil Conflict,
ed. Nigel Biggar (Washington, DC: Georgetown University Press, 2005), 313.
23 Owen Fiss, ‘Human Rights as Social Ideals,’ in Human Rights in Political Transitions: Gettysburg to
Bosnia, ed. Carla Hesse and Robert Post (New York: Zone Books, 1999), 273.
24 Carlos Acuña, Transitional Justice in Argentina and Chile: A Never Ending Story?’ in Reparation
and Retribution in the Transition to Democracy, ed. Jon Elster (New York: Columbia University
Press, 2006), 223.
25 In no way do I intend to diminish the excellent work of those scholars who have addressed these
questions in a variety of ways. In addition to Mahmood Mamdani’s widely cited work on South
Africa (Mahmood Mamdani, ‘The Truth According to the Truth and Reconciliation Commission,’
in The Politics of Memory: Truth, Healing and Social Justice, ed. Ifi Amadiume and Abdullahi
An-Naim (New York: Zed Books, 2000)), see, Robert Meister, ‘Human Rights and the Politics of
Victimhood,’ Ethics and International Affairs 16(2) (2002): 91–108; Joseph Nevins, ‘Restitution
over Coffee: Truth, Reconciliation, and Environmental Violence in East Timor,’ Political Geography
22(6) (2003): 677–701; John Torpey, ‘Making Whole What Has Been Smashed: Reflections on
Reparations,’ Journal of Modern History 73(2) (2001): 333–358. I would suggest, however, that the
exceptional nature of such commentary tends to highlight a general failure in the literature to
include economic questions.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 275

may be constructed.26 Beyond this particular preoccupation, however, the ways

in which the transitional justice literature focuses on a standard set of debates
that employ a familiar list of terms can create a series of assumptions often left
unspoken. By focusing on issues surrounding truth, justice and reconciliation –
commonly debated objectives of transitional justice institutions – commentators
obscure the importance of economic factors in conflict and transition. The repeti-
tion of set discussions may create at times a scholarly inertia in which, as with the
snowball effect in institutions, it may become difficult to raise questions outside
the accepted discourse.
The fetishization of familiar terms, tropes and debates masks other projects
which are neglected in the effort to describe and construct the new liberal state.
Each trope stands in for an aspect of the liberal project: justice represents the

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

struggle for a ‘depoliticized,’ trustworthy rule of law;27 truth represents the rights
of victims to tell their stories and thus to ‘democratize history’28 and reconciliation
represents the aspiration to a newly united citizenry in the postconflict state. The
terms are played against one another, defining and redefining the ability to achieve
the liberal democratic ideal. In the process, deeper challenges to the state-building
project potentially disappear. The questions of inequality and structural violence
are lost in the process of reconfiguring familiar debates.
If transitional justice partially exists to reconceive society, then the inability to
reimagine economic distribution makes full reconstruction impossible. If eco-
nomic liberalization accompanies political transition, then to ignore its presence
as a piece of regime change and a factor in determining the parameters of justice
may end up serving a few individuals in the name of the entire citizenry.

Sins of Omission: the Institutions

The mandates of transitional justice mechanisms throughout the world frequently
ignore structural economic factors. Subsequently, the final reports of truth com-
missions or convictions at international tribunals generally fail to mention them
as a result of strict adherence to the terms of the commission’s mandate or the
law under which the trials take place. Due to its close relationship with interna-
tional human rights law, transitional justice has the tendency to import both the
limitations and the benefits of the larger human rights discourse. The focus on
individual accountability may neglect structural factors; an emphasis on prosecu-
tions can obscure systemic responsibility. Because the mandates of both tribunals
and truth commissions rely heavily upon the instantiation of human rights in the
new state, they tend almost uniformly to emphasize civil and political rights rather
26 McEvoy, supra n 14; Louise Arbour, ‘Economic and Social Justice for Societies in Transition’ (paper
presented at the Second Annual Transitional Justice Lecture, Center for Human Rights and Global
Justice at New York University and the International Center for Transitional Justice, New York, 25
October 2006).
27 See, McEvoy, supra n 14 at 439.
28 Jacobus A. du Pisani and Kwang-Su Kim, ‘Establishing the Truth about the Apartheid Past: Histo-
rians and the South African Truth and Reconciliation Commission,’ African Studies Quarterly 8(1)
(2004): 83.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

276 Z. Miller

than socioeconomic ones. Economic factors become doubly reduced in this trans-
lation; they are, first, excluded by a focus on legalistic rights discourse rather than
on structural violence and, second, left out according to the common preference
of human rights mechanisms for civil and political concerns.29
Even when broader social factors are addressed, they remain contextual. Al-
though a nuanced understanding of context is crucial to understanding the power
and politics of rights, poverty and inequality tend to be depicted merely as the land-
scape against which murder, disappearance, torture and other gross human rights
violations are committed. The cost of this contextualization process can be the
reinforcement of an idea that reparations, education or ‘democratic institutions’
will somehow resolve the background factors. The notion that the background
must become central30 in order to address the fundamental questions underlying
the transition, conflict, crimes of ‘individual responsibility’ or the ‘degradation . . .

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

of large numbers of people’ remains unspoken and unnoticed.31
Relying on one another for precedent in procedure and practice, the ICTY, ICTR,
Special Court for Sierra Leone (SCSL) and ICC statutes cover similar crimes. Each
mandate emphasizes the notion that the court will prosecute the most serious
crimes and those ‘most responsible’ for these crimes. The ratification of the Rome
Statute and the issuing of first indictments by the ICC represent a new phase of
transitional justice. The idea that the court will both define and prosecute the
‘most serious crimes to the international community as a whole’32 is founded not
only on legal precedent from the ad hoc tribunals but also on an assumption that
some rights-based baseline exists on which the entire ‘international community’
can rely. The power to define the discourse of violation, the vocabulary of outrage
and the appropriateness of dissatisfaction lies largely within the realm of transi-
tional justice mechanisms, which deploy the human rights norms that originally
constituted them. This power has been underestimated in many ways, and the
repetition of particular crimes or certain indictable offenses through both courts
and commissions may have unexpected effects beyond the standard debates.
Truth commissions have been understood as an instrument for a broader inter-
pretation of the past than that offered by the narrow confines of international law.
They generally have failed, however, to investigate fully the socioeconomic back-
ground to the conflicts in question, to elucidate the structural violence of the past
or to fully grapple with the economic aspects of transition. In Chile, the National
Truth and Reconciliation Commission focused on ‘serious violations’ consisting of
physical violence under international human rights norms.33 The UN-sponsored
truth commission in El Salvador determined that the ‘serious acts of violence’
29 McEvoy, supra n 14.
30 David Kennedy, The Dark Sides of Virtue (Princeton: Princeton University Press, 2005).
31 Martha Minow, ‘Innovating Responses to the Past: Human Rights Institutions,’ in Burying the Past:
Making Peace and Doing Justice After Civil Conflict, ed. Nigel Biggar (Washington, DC: Georgetown
University Press, 2005), 97.
32 Defined as genocide, war crimes, crimes against humanity and the crime of aggression in Article 5
of the Rome Statute.
33 Chilean Ministry of Justice Supreme Decree No. 355 (25 April 1990), art. 1.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 277

it was mandated to investigate would be defined in terms of the nonderogable

rights included in the International Covenant on Civil and Political Rights (IC-
CPR) and the American Convention on Human Rights, as well as violations of
the Geneva Conventions.34 Even within the frame of human rights discourse, the
Commission’s choice to note the ICCPR rather than the International Covenant
on Economic, Social and Cultural Rights (ICESCR) reinforces the hierarchy in-
ternal to the movement.35 The argument made at times within the human rights
movement for focusing on the former rather than the latter has been that in order
to operate productively, human rights organizations need a ‘violation, violator,
and remedy’ and that without the ability to name each, the power of ‘shaming’
will be significantly reduced.36 In the particular realm of a truth commission,
however, these concerns do not apply. The focus on civil and political rights may

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

only demonstrate that transitional justice has imported the biases of its ‘parent’
movement without noting that even the problematic bases for the hierarchy in the
broader realm do not exist in its particular context.
The enacting statute of the South African Truth and Reconciliation Commis-
sion (TRC) allowed for a contextual investigation, but subsequently narrowed the
inquiry to one solely about gross human rights violations, which were defined as
severe physical mistreatment.37 Despite hopes on the part of some central figures
in the transition that the TRC would foster social justice, economic redistribution,
a ‘systematic process of acknowledging the illegitimacy of apartheid’ and recog-
nition of the ‘collective responsibility of the apartheid privileged,’ the work and
conclusions of the Commission disappointed these expectations.38 The TRC’s final
report mentions the role of colonialism as a precursor to apartheid and describes
some of the economic underpinnings of the National Party regime. It also discusses
the one-day hearing on the role of business in apartheid.39 Because of the narrowed
time parameters and individualistic focus of the hearings at the Human Rights Vi-
olations Committee, however, the report primarily features individual accounts of
victims of gross human rights violations as defined by the TRC, making apartheid
the background to particular violations rather than the violation itself.40
More self-conscious than much of the literature and many other truth commis-
sion final reports, the TRC report in its opening volume briefly touches upon its

34 Thomas Buergenthal, ‘The UN Truth Commission for El Salvador,’ Vanderbilt Journal of Transna-
tional Law 27(3) (1994): 497–544.
35 Arbour, supra n 26.
36 Kenneth Roth, ‘Defending Economic, Social, and Cultural Rights: Practical Issues Faced by an
International Human Rights Organization,’ Human Rights Quarterly 26(1) (2004): 68.
37 Promotion of National Unity and Reconciliation Act 34 of 1995 (26 July 1995), art. 3(1)(a) and art.
1(1)(ix)(a–b).
38 Kader Asmal, ‘Truth, Reconciliation and Justice: The South African Experience in Perspective,’
Modern Law Review 63(1) (2000): 12.
39 ‘The final position and finding of the Commission was that business generally benefited financially
and materially from apartheid policies.’ Truth and Reconciliation Commission of South Africa Report
(Cape Town: Juta, 2003) [hereinafter ‘TRC report’], vol. VI, ch. 5, p. 140.
40 Nagy, supra n 15.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

278 Z. Miller

own limitations, noting that

The consequences of human rights violations [due to separate development] . . . cannot
be measured only in the human lives lost through deaths, detentions, dirty tricks and
disappearances, but in the human lives withered away through enforced poverty and
other kinds of deprivation.41

Although the TRC might be viewed as a progressive step toward a fuller recog-
nition of contextual factors in transition (and in the causation of conflict), it
nonetheless fits into the broader model described in this article, trading the pos-
sibility of making structural violence and economic inequality central for the
comparative clarity and simplicity of a narrower category of civil and political
rights violations.42

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

The Focus on Reparations
When they do address economic questions, transitional justice mechanisms focus
primarily on reparations or compensation for a victim group defined by the
institution. The literature works in conjunction with the institutions to (re)produce
discussions about reparations and attempts at compensation for the gross human
rights violations investigated by a commission or committed by a convicted war
criminal. The narrow focus implies a redefinition of ‘economic factors’ to the
philosophical complexities and practical limitations of reparations. Conceivably,
the focus on reparations makes structural factors doubly invisible, as they are
not only backgrounded in the project as a whole but also reduced to a singular
definition for resolution.
Reparations may be monetary or symbolic, material or moral; in many cases,
governments fail to pay them, despite the recommendations of a transitional
institution. In a paradigmatic example of state reparations, Germany paid both
individual and collective reparations (the former to individual victims of the
Holocaust and the latter to the state of Israel).43
In Peru, an initial model for reparations proposed to deal with all aspects of
the ‘reproduction of the cycle of violence,’ including economic inequalities and
exclusions, expressions of political violence, bad living conditions and other fac-
tors, using reparations as a ‘means to sustainable peace, democratic strengthening

41 TRC report, supra n 39 at vol. I, ch. 4, p. 65. On p. 34, the report describes the ‘grim daily reality
for every black South African’ due to ‘collective expulsion, forced migration, bulldozing, gutting or
seizure of homes, the mandatory carrying passes, forced removals into rural ghettos, and increased
poverty and desperation.’
42 Certain institutions – for example, the East Timor Commission for Reception, Truth and Rec-
onciliation and the Guatemalan Commission for Historical Clarification – have included some
investigation of socioeconomic rights violations; the implementation of the recommendations
has been, however, limited. Arbour, supra n 26; Nagy, supra n 15. Guatemala: Memory of Silence
(Guatemala City: Commission on Historical Clarification, 1999). As with the literature, I hope to
establish the general occlusion of economic issues in past institutions, but it would be specious to
claim that these questions are never addressed. Rather, the exception tends to prove the rule.
43 Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York:
W.W. Norton & Company, 2000).

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 279

and development.’44 The final recommendations of the Truth and Reconciliation

Commission narrowed the structural objectives to some degree, recommending
reparations for anyone who suffered specific human rights or humanitarian viola-
tions between 1980 and 2000 as a result of political violence.45 The Peruvian case
demonstrates the ways in which truth commissions in particular attempt to use
reparations, on occasion, to resolve structural factors they have self-consciously
avoided fully addressing. It also reveals the difficulty in such an attempt to link
issues of resource and power inequality with the narrow purview of reparations.
In South Africa, the TRC recommended individual reparations for victims named
in the final report, as well as symbolic reparations, community rehabilitation
programs and institutional reform.46 The government delayed payment of the
recommended sum for several years, amid growing dismay on the part of victims’

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

organizations, and eventually pledged a far smaller amount of reparations that has
left victims dissatisfied and angry with the Mbeki government.47
In Rwanda, the approach is derived primarily from laws that promise compen-
sation to survivors. The law regarding prosecution for genocide and crimes against
humanity states that the judge in a particular case shall rule on damages for victims
and their families,48 leaving the specifics to a future law. According to a summary
provided by Human Rights Watch, the law might include financial compensa-
tion in a wide variety of forms but includes no mention of land distribution.49
Compensation clearly is viewed as a narrow transaction for genocide victims, it
links reparations neither to development nor to redistribution. Gacaca courts are
mandated to create a list of victims who suffered material losses or bodily harm
and an inventory of losses according to a schedule set out by law. The list is to
be sent to the envisioned compensation fund, which should address the claims.50
According to the modified 2004 Gacaca law, if a suspect confesses, a portion of his
or her sentence may be commuted to community service.51

44 Lisa Magarrell, ‘Reparations for Massive or Widespread Human Rights Violations: Sorting Out
Claims for Reparations and the Struggle for Social Justice,’ Windsor Yearbook of Access to Justice 22
(2003): 91.
45 Ibid.
46 TRC report, supra n 39.
47 Dumisa Ntsebeza, ‘The Legacy of the Truth and Reconciliation Commission,’ in The Provocations
of Amnesty: Memory, Justice and Impunity, ed. Charles Villa-Vicencio and Erik Doxtader (Trenton,
NJ: Africa World Press, 2003).
48 Republic of Rwanda, Organic Law No. 08/96 of 30 August 1996 on the Organization of Prosecutions
for Offences Constituting the Crime of Genocide or Crimes Against Humanity Committed since
1 October 1990 (30 August 1996), art. 32.
49 Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda (New
York: Human Rights Watch, 2004).
50 Organic Law No. 40/2000 of 26 January 2001 Setting Up ‘Gacaca Jurisdictions’ and Organizing Pros-
ecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity between
1 October 1990 and 31 December 1994 (26 January 2001), art. 90.
51 Organic Law No. 16/2004 of 19 June 2004 Establishing the Organization, Competence and Func-
tioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the Crime
of Genocide and Other Crimes Against Humanity Committed between 1 October 1990 and
31 December 1994, art. 73.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

280 Z. Miller

According to commentators, compensation to victims

aids the victims to manage the material aspect of their loss. Second, it constitutes an
official acknowledgement of their pain by the nation . . . Third, it may deter the state
from future abuses, by imposing a financial cost to such misdeeds.52

The notion of restitution or reparation is often linked to the need for social
restoration and the institutionalization of the rule of law, with repair viewed
as a requirement for the ‘re-membering’ of society.53 Yet, as Roht-Arriaza and
Martha Minow point out, reparations are caught in an inherent paradox: they
ideally are meant to restore the status quo ex ante of a society in a situation in
which no compensation – symbolic or monetary – can actually accomplish the
goal of restoration.54 The sense in these works is simultaneously that reparation is
necessary as a progressive gesture and that its objectives are inherently unreachable

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

if they include the fantasy of actual repair.
Teitel links reparations explicitly to recognition that transition is generally eco-
nomic as well as political, stating that ‘reparatory measures appear most defi-
nitional of the liberalizing move, as these responses instantiate recognition of
individual rights,’ in addition to serving both a symbolic role in the transition for
society and a literal compensatory one for victims.55 As is explored further in the
section regarding the costs of this discourse, linking reparations to economic tran-
sition may serve to mask the continuing lack of significant redistribution during
or after transition.

Effects of Economic Invisibility

Narrowing the Past and Shaping the Discourse
The failure to include economic concerns in transitional justice mechanisms tends
to make transition into a political rather than an economic story, limiting knowl-
edge of the economic underpinnings of conflict, narrowing the story of regime
change and quelling discussion of development plans by quarantining them within
the state and the executive rather than making them part of the transitional justice
conversation. Since transitional justice mechanisms, particularly truth commis-
sions, are discursive tools just as much as they are instruments of accountability or
reconciliation, they may frame the conflict in one dimension without providing an
alternative vocabulary. Thus, apartheid in South Africa after the TRC can become a
story about racism or about specific, individual rights violations rather than about
long-term, systemic abuses born of a colonial project with economic objectives. It
52 Neil Kritz, ‘The Dilemmas of Transitional Justice,’ in Transitional Justice: How Emerging Democracies
Reckon with Former Regimes, ed. Neil Kritz (Washington, DC: United States Institute of Peace Press,
1995), vol. I, xxvii.
53 Martha Minow, ‘The Work of Re-Membering: After Genocide and Mass Atrocity,’ Fordham Inter-
national Law Journal 23(2) (1999): 429–439.
54 Naomi Roht-Arriaza, ‘Reparations: Decisions and Dilemmas,’ Hastings International and Compar-
ative Law Review 27(2) (2004): 157–220; Minow, supra n 7.
55 Teitel, supra n 4 at 8.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 281

also becomes one of physicality rather than structural violence, with the physical
conceivably acting as a metaphor for the systemic, allowing the transitional justice
institution and the state to address the former while essentially backgrounding
the latter.56 The genocide in Rwanda can become a story of historic ethnic hatred
between Hutu and Tutsi rather than a narrative of decades-long resource inequity,
unequal land distribution and colonial constructions. These narratives, partially
constructed by the new state, are potentially echoed and reinforced by transitional
justice mechanisms, which narrow the narrative of the past in a variety of ways.
These discursive limitations relate directly to the definitional power of transi-
tional justice institutions. The parameters of perpetrator and victim are determined
by the mechanism itself, and the effects of those definitions rest not only on an
abstract debate about the rule of law but also in the question of what was and will

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

be viewed in society as a crime and a moral outrage. To seek truth through either
trial or commission, whether explicitly through amnesty or implicitly through
indictment, contains within it the trick of a preordained parameter. The truth
sought becomes who killed or tortured rather than who controls immense tracts
of land through colonialist enterprises, which countries failed to stop the atrocities
from occurring and who merely stood by as it happened. Bystanders and economic
beneficiaries might be citizens or countries; in either case, transitional justice fails
to take them into account in the interest of the symbolic, the limited and the move
toward a liberal rights discourse that offers a new, peaceful, stable state without
necessarily disrupting all of the old power relations. Both discourse and definition
fall within limited parameters, allowing the story of guilt and innocence to be
retold through the lens of the new institution in a way that will, according to the
goal of the institution itself, remain the permanent history of a conflict or regime.
In South Africa, the story told by the TRC is one of individual perpetrators
committing gross human rights violations against individuals based on the color
of their skin or their political affiliation. As Mahmood Mamdani argues, however:
The violence of apartheid was aimed less at individuals than at entire communities
and entire population groups . . . The point is that the Latin [American] analogy
obscured the colonial nature of the South African context: the link between conquest
and dispossession, between racialized power and racialized privilege.57

By narrowing its focus to gross human rights violations and limiting discussion
of economic violence primarily to one day of institutional hearings on the role of
business in apartheid, the TRC retold the story of apartheid from the narrowed
perspective of specific rights violations rather than a broad view of colonialism
and capitalism.58 As a consequence, ‘gross violations of human rights were treated
more as the product of individuals’ decisions and actions than the outcome of the

56 Du Pisani and Kim, supra n 28.

57 Mamdani, supra n 25 at 179.
58 Richard Wilson, ‘Justice and Legitimacy in the South African Transition,’ in The Politics of Memory:
Transitional Justice in Democratizing Societies, ed. Alexandra Barahona de Brito, Carmen Gonzalez-
Enriquez and Paloma Aguilar (New York: Oxford University Press, 2001).

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

282 Z. Miller

dynamics of the apartheid system.’59 When the Commission chose specific cases
as representative, the hegemonic national unity narrative overtook particular local
considerations.60 An analysis of the choices of ‘truth’ and narrative at the TRC
might easily implicate the questions of which issues were considered paramount,
what became background and what was central to the national narrative of truth
and reconciliation.
One effect of this process in South Africa is that the legitimacy the government
gained through the TRC meant that the Commission’s existence was no longer
necessary after the legitimacy of the new democracy had been proven. By declaring
an end to transition, closing the TRC at the scheduled time and essentially ignoring
the bulk of the Commission’s recommendations for the future, particularly with
regard to monetary reparations for the victims, the new government utilized

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

the legitimacy effect of the TRC without implementing the institution’s more
inconvenient recommendations.61 The combination of the Commission’s narrow
explanation of the past and the government’s ability to ignore the implications of
the final report in its material aspects allowed a new regime to entrench economic
inequality while claiming that ‘the new government is different and is committed
to protecting and respecting the rights of citizens.’62 In another sense, the emphasis
on rights discourse in the ‘new’ South Africa and the emphasis on human rights
as a mobilizing force for change may have paradoxically ‘frozen the hierarchies of
apartheid by preserving the social and economic status quo.’63
Rwanda’s ‘conflict story’ about ethnicity rather than resource inequity or land
might be read in conjunction with the current government’s pursuit of a dramatic
land and development policy64 which is wholly separate from postgenocide justice.
Despite the government’s policy of supplanting ethnicity through ‘rwandicity’
discourse65 and its determined attempt to separate development from genocide,
it can be argued that historic connections between resource inequity and ethnic
divisionism remain. The terms Hutu and Tutsi partially derive from unequal labor

59 Audrey Chapman and Patrick Ball, ‘The Truth of Truth Commissions: Comparative Lessons from
Haiti, South Africa, and Guatemala,’ Human Rights Quarterly 23(1) (2001): 14.
60 Hugo van der Merwe, ‘National and Community Reconciliation: Competing Agendas in the South
African Truth and Reconciliation Commission,’ in Burying the Past: Making Peace and Doing Justice
After Civil Conflict, ed. Nigel Biggar (Washington, DC: Georgetown University Press, 2005).
61 In addition, ‘[t]he socio-economic transformation [since transition began] has therefore not been
a deep-seated one . . . Consequently, the past eight years have largely seen a continuation of
unequal power relations, unfree labour patterns, and uneven socio-economic development that
characterized the long preceding period of extended colonialism.’ Sampie Terreblanche, A History
of Inequality in South Africa, 1652–2002 (Pietermaritzburg: University of Natal Press, 2002), 20–21.
62 Richard Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-
Apartheid State (New York: Cambridge University Press, 2001), 200.
63 Makau Mutua, ‘Hope and Despair for a New South Africa: The Limits of Rights Discourse,’ Harvard
Human Rights Journal 10 (1997): 68.
64 Vision 2020 Development Plan for Rwanda, Republic of Rwanda Ministry of Lands, Environment,
Forests, Water and Mines, National Land Policy, http://www.nur.ac.rw/IMG/pdf/Vision 2020.pdf.
65 One of the official current policies in Rwanda is the erasure of ethnic terminology. While the
reasoning behind this is not only obvious but also eminently reasonable, it is also heavily contested
on the ground and may have the perverse effect of silencing open discourse about the past.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 283

relations, land distribution and differential access to cattle,66 and the genocide
related closely to tensions based not just on ‘ethnic hatred’ but also on economic
disparity and dissatisfaction due to extraordinary poverty.67
The pregenocide Habyarimana ‘Hutu Power’ regime used ethnic discourse to
manipulate other socioeconomic, political and social divisions and disparities,
helping to justify war against the invading Tutsi Rwandan Patriotic Front. The
government’s rhetoric fed into popular fears, cultivated over decades, that the
Tutsi wished to return to Rwanda to reestablish their monarchy and rule over the
Hutu, redistributing land to Tutsi and reinstituting the uburetwa labor system.68
The enemy thus became not the international or donor communities or the cor-
rupt ruling elite but an internal ethnic enemy. As Johan Pottier suggests, ‘[t]he
class antagonism and the threat of militancy which they themselves faced were

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

converted into “ethnic hatred” and a readiness to kill the “real” – now ethnicised –
enemy.’69 Some analyses link specific killings during the genocide directly to land-
based grievances.70 Many scholars have cited the egregious structural violence of
Rwandan society as an enabling environment for genocide, even if it was not as
an instigating factor for the atrocities.71 Decades-long grievances over land and
resource distribution combined with other social and political factors to allow the
government to manipulate the ethnicity discourse and plan mass atrocity.72
A closer examination of Rwanda’s genocide links it to issues not just of ethnic ha-
tred but also of land- and resource-based grievances, yet postgenocide transitional

66 Johan Pottier emphasizes that the differences between Hutu and Tutsi are fundamentally wealth-
based rather than race-based and existed prior to Belgian colonization. Johan Pottier, Re-Imagining
Rwanda: Conflict, Survival and Disinformation in the Late Twentieth Century (Cambridge: Cam-
bridge University Press, 2002). For a nuanced discussion, see, Alison Desforges, Leave None to Tell
the Story (New York: Human Rights Watch, 1999).
67 Peter Uvin offers a useful survey of major scholarly paradigms for understanding the origins of
the genocide. Peter Uvin, ‘Reading the Rwandan Genocide,’ International Studies Review 3 (2001):
75–99.
68 Uburetwa, a precolonial 19th-century system, required labor to be given to Tutsi King Rwabugiri in
return for gaining access to land; it was expanded in territory and scope after Belgian colonization.
Tutsi were not subject to the system, nor were a small number of privileged Hutu. Pottier, supra n 66.
Some have argued that the uburetwa system, in combination with racist Belgian policies, increased
‘ethnic’ anger on top of labor- and land-based rage at the authorities for unequal treatment. See, for
example, Kathrin Wyss, A Thousand Hills for 9 Million People – Land Reform in Rwanda: Restoration
of Feudal Order or Genuine Transformation? (Bern: Swisspeace, 2006).
69 Pottier, supra n 66 at 22.
70 More than one study has documented a commune in Gisenyi where 32 people were killed, of whom
only one was Tutsi. Almost all of those killed had been involved in various land disputes before the
genocide. Scholars have posited that the genocide may have provided some people with a method
for settling past grievances. See, Wyss, supra n 68; Herman Musahara and Chris Huggins, ‘Land
Reform, Land Scarcity and Post-Conflict Reconstruction: A Case Study of Rwanda,’ in From the
Ground Up: Land Rights, Conflict and Peace in Sub-Saharan Africa, ed. Chris Huggins and Jenny
Clover (Johannesburg: Institute for Security Studies, 2005).
71 See, Uvin, supra n 2.
72 Many different readings have been offered of the causes for the genocide. I would assert merely that
economic factors such as inequality and structural violence should be considered significant. Scott
Straus argues that radical destabilization due to civil war, a state with well-organized local control
and historical ethnic categories, played central causal roles in the perpetration of the genocide. Scott
Straus, The Order of Genocide: Race, Power, and War in Rwanda (Ithaca, NY: Cornell University
Press, 2006).

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

284 Z. Miller

justice mechanisms – whether the ICTR, national trials or Gacaca – have failed to
address these issues of structural violence and economic inequity. Reconciliation
and transitional justice mechanisms may utilize, consciously or unconsciously, the
discourse of the past conflict rather than transcending it. If resource scarcity played
a significant role in the genocide and yet was articulated through ethnicity, then
even using the language of ethnicity to understand the history of the conflict may
be too limited for constructing sustainable reconciliation. Just as apartheid’s narra-
tive may become one primarily constructed by race, Rwanda’s genocide may come
to be seen purely through the lens of ethnicity. In the process, structural inequality
remains invisible, and the postconflict vocabulary is limited by the mechanisms
that deploy it.

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

Results of Confining ‘Economics’ to Reparations
The particularistic focus on reparations and compensation for ‘victims’ itself may
have specific distributional effects. The discourse around, and practical considera-
tions of, awarding reparations contributes to the discursive effects indicated above.
They help to define guilt and victimhood, contributing to the overall project of
defining the citizenry in the new state and society. The project of reparations re-
quires that the mechanism identify (implicitly or explicitly) who the victims are,
how their losses can be compensated and in which cases monetary or symbolic
reparations should take precedence over other expenditures. On a small scale,
reparations move money or resources from the new state to a particular group
of citizens. At times, they might attempt to symbolically identify a power shift
from autocratic leadership to a democratic, participatory system. By definition,
however, reparations do not redistribute either wealth or power on a scale that
would dramatically alter the balance of power in the country during or after
transition.
To that end, if transition is a political story and its only economic implications
are in the particularized realm of compensation, the lack of redistribution during
transition will be lost amid discussions of victimhood and payment of reparations.
The questions of who ‘owes’ whom and how much is owed will triumph over issues
that might by contrast result in increased solidarity among a broader sector of a
country’s economically oppressed.73 Instead, fights over who is a victim, whether
they deserve payment, whether they will accept money and other particularized
conflicts overtake the larger question of economic decisions during and after
transition.
Reparations and compensation allow the state to redistribute wealth only in
a strikingly narrow manner, frequently compensating only those named by the

73 In certain cases, the struggle for reparations might foster solidarity among the disenfranchised or
offer an opportunity for more systemic resistance, for example, demands for compensation from
former colonial powers, or the work of the Khulumani Support Group in South Africa. In the
context of institutions that establish a particular list of survivors or a standard for determining
victimhood, however, the outside borders of such groups may remain radically circumscribed.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 285

transitional justice mechanism. In the process of reparations,

only certain victims became fully part of the narrative of reconciliation. The suffering
of many living victims is denied recognition or relegated to a lesser level of significance
because their suffering is seen as politically problematic or ambiguous.74

Just as the choice to compensate a particular portion of the population may

focus attention on the suffering of only a certain group for specific violations,
it also may concentrate responsibility on one group of offenders. In the process,
wider accountability for the structure that supported the violations cited by a
commission or tried at a tribunal may be lost.
Perhaps the most powerful critique of the South African TRC was that its focus on
the perpetrators of apartheid ignored the far larger population of its beneficiaries.75
In addition, the TRC’s final report itself pleaded that the requirement to pay repa-

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

rations should not deprive other needy members of society of necessary resources
and assistance.76 Yet the problem may simply be inherent to the institution, leaving
redistribution off the proverbial table, as
former victims establish that they were morally undamaged by allowing beneficiaries to
keep most, if not all, of their gains from the discredited past, while no longer expecting
beneficiaries to defend those gains as legitimate.77

Although some have suggested that reparation could be made through devel-
opment aid, thus theoretically addressing at least some structural factors, others
have argued that this strategy ‘conflates two separate obligations of government:
to make reparations for wrongs it committed and to provide essential services to
the population.’78 In addition, development projects face problems in targeting
only the victims rather than the entire population, perhaps failing in the process to
emphasize the moral aspects of reparation. In the worst scenario, granting devel-
opment aid to a part of the population deemed victims rather than to all those in a
disadvantaged economic position may increase the likelihood of violence spring-
ing from resentment on the part of those not categorized as victims and thus not
eligible for assistance. For example, any such program would present a particular
problem in Rwanda, where victims and perpetrators live side by side and where it
may be difficult or impossible to maintain development projects for one portion
of the population without reviving conflict, if it is perceived that aid flows to Tutsi
instead of Hutu.79 Development directed through reparations potentially limits
the conceptualization of both conflict and redistribution.
74 Michael Humphrey, The Politics of Atrocity and Reconciliation: From Terror to Trauma (London:
Routledge Press, 2002), 121.
75 Mamdani, supra n 25.
76 TRC report, supra n 39 at vol. I, ch. 5, p. 129.
77 Meister, supra n 25 at 95.
78 Roht-Arriaza, supra n 54 at 188.
79 For a comprehensive study, see, Heidy Rombouts, Victim Organisations and the Politics of Repa-
ration: A Case Study on Rwanda (Antwerp: Intersentia Press, 2004). See also, Wyss, supra n 68.
Commentators have noted that community service by offenders in the context of Gacaca might
remind the mostly Hutu indictees of the historical uburetwa system. Roht-Arriaza, supra n 55.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

286 Z. Miller

Similarly, restitution in cases of historical injustice could present particular

problems in areas such as Eastern Europe or South Africa, which suffer massive
inequality because ‘historically oriented restitution efforts are both too partial
and too inadequate to the survival tasks of rebuilding national economies and
civil societies.’80 This idea links the cost of narrowing the definition of economics
to reparations to the problems of a limited vocabulary about a given conflict.
Without expanded narration of a conflict, the economic roots of past clashes
remain invisible; without significant redistribution, reparations cannot satisfy the
demand to resolve the fundamental origins of conflict.
The reduction of economic questions to the need for reparations and, in turn, a
focus on the pressure on reparations as an issue of limited resources in a nascent
economy curb the redistributional possibilities of the project of transitional justice.

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

Thus, ‘many will ask how much of its limited funds should the new democracy be
obliged to allocate for victims’ compensation, paying for the sins of the old guard?’81
In this sense, the separation of development from the transitional mechanisms
increases the sense that economic equality has no role to play in the conception
of justice. The discussion of redistribution is delinked from the operations of
transitional justice, and the primary discourse becomes one of competition over
resources used for justice ‘as opposed to’ for development.
In each way, the project of reparations, which appears backward looking and
corrective, relies upon a forward-looking selection among violations, conflicts,
groups and injustices. This unspoken choice has implications not only for the
reading of the past but also for the events of the future.82 Reparations, in fact, may
be not only nonredistributive by definition but also determinative of the priorities
of the society in which they are awarded. As a consequence, they obscure the
underlying causes of conflict.
Both South Africa and Rwanda have to some degree addressed, or at the very least
engaged with, questions of land and resource distribution in realms other than
their transitional justice mechanisms. The TRC mentions that its work should be
comprehended within the context of other mechanisms set up during transition,
including the Land Claims Court.83
In Rwanda, the government has implemented a far-reaching development plan,
as well as passed a land law and implemented a land policy through its Ministry of
Agriculture.84 The land law and policy have problems of their own,85 but for the
purposes of this article, it is critical primarily to note that they have been established
80 Minow, supra n 7 at 109.
81 Kritz, supra n 7 at xxvii.
82 Marc Galanter, ‘Righting Old Wrongs,’ in Breaking the Cycles of Hatred: Memory, Law, and Repair,
ed. Nancy L. Rosenblum (Princeton: Princeton University Press, 2002).
83 TRC report, supra n 39 at vol. I, ch. 4, p. 48.
84 Organic Law No. 08/2005 Determining the Use and Management of Land in Rwanda, Republic of
Rwanda Ministry of Lands, Environment, Forests, Water and Mines, National Land Policy (2004)
[hereinafter ‘Land policy’].
85 I have addressed these issues in greater detail elsewhere. See, Zinaida Miller, Constructing Sustainable
Reconciliation: Land, Power, and Transitional Justice in Post-Genocide Rwanda (Cape Town: Institute
for Justice and Reconciliation, 2007).

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 287

in a parallel and unrelated mode to the postgenocide justice system. Although the
land law encompasses its own narrative of Rwandan history, including of the
genocide,86 the process of development has been kept wholly separate from that
of transitional justice. The assiduous divorce of development from transitional
justice, when linked to the land policy’s recitation of the history of Rwanda and
of the genocide, indicates the ways in which state narration of the past seeps into
many arenas. By separating the two areas, the government can in a certain sense
assume a supposedly ‘reconciled’ story of Rwandan history while implementing a
complex set of transitional justice mechanisms.
One might argue that as long as the government deals with development or
economic distribution in some way, the manner in which it does so hardly mat-
ters. In fact, since a common argument about the inability of transitional justice

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

mechanisms to deal with the questions raised in this article is the basic shortage
of resources, time and professional capacity, one might argue effectively that it
is preferable to deal with these issues through the executive branch rather than
through a truth commission or the courts. As discussed above, however, the import
of removing economic issues from the purview of these mechanisms is more than
simply pragmatic. It implicates a particular story of the conflict, a narrowed dis-
course for discussing grievance and a limited vocabulary for gaining redress. The
power of a transitional justice mechanism to define injustice or violation should
provoke careful interrogation of the story told and the way in which it is ‘corrected’
during transition.

Continued Structural and Renewed Physical Violence

Although determining causality or generating definitive empirical data on the
question remains difficult, a growing literature attempts to address the relation-
ship between economics and war, often focusing on inequality and civil conflict. As
part of the postconflict ‘package,’ transitional justice institutions might be concep-
tualized less as a bridge from past to present or as a measure of memorialization and
more as a tool of conflict prevention or as the interruption of a continuing series
of violent incidents. Examined in this light, the significance of economic factors
increases dramatically. By removing economic questions from transitional justice,
the literature and institutions make invisible both the economic causes of conflict
and the effects of the postconflict economic situation on the possibility for renewed
violence related to past grievances or current experiences of maldistribution. In
addition, they may erase from consideration the role in conflict of powerful outside
states or multinational corporations, making transnational structural imbalances
seem irrelevant with regard to internal violence or repression.

86 The land policy narrates a story of precolonial Rwandan harmony radically disrupted by the
influence of the racist colonial administration. While the corrosive and violent Belgian influence
is unquestioned by any credible source, the way in which the state has chosen to portray land
issues tends to erase the possibility of precolonial resource divisions and, in particular, precolonial
Hutu/Tutsi divisions. Land policy, supra n 84.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

288 Z. Miller

As greater attention has been paid to the cyclical nature of violence, it seems
likely that postconflict justice and reconciliation equally must be considered con-
flict prevention mechanisms. In this context, a link between the limited economic
improvement offered after transition and the narrow storytelling of transitional
justice mechanisms with regard to structural violence and resource inequity pro-
vokes reconsideration of the possible consequences of these tendencies for conflict
resolution. By ignoring the deeper roots of conflict, the relationship of inequality
to reconciliation and the injustice of maldistribution, transitional justice mecha-
nisms may actively contribute to new outbreaks of violence. Even if the transformed
postwar economy and society play a more direct role in the possibility for future
violence than does the investigation of root causes, the emphasis of transitional
justice on uncovering the past suggests the need to include economic bases for

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

war in the analysis of recent history.87 The studied neutrality of the discourse, the
explicit belief in depoliticized law and biases regarding the hierarchies of human
rights norms combine to mask the possibility that transitional justice institutions
might contribute to the very conflicts they hope to resolve.
The literature on the economic aspects of civil war and violence is divided.
Debates have raged about the relationship of economic growth to peace, the effects
of inequality or poverty on the potential outbreak of violence, the existence of
a ‘conflict trap’ and the solidity of empirical findings on any number of related
topics.88 Whether greed or grievance, vertical or horizontal inequality or growth
or recession can be proven to cause and to sustain violence is connected to a set of
questions far beyond the scope of this article. Developments in the field with regard
to economics and war, however, could influence the literature and institutions of
transitional justice in a variety of ways. Robert Meister draws our attention to the
fact that
the recent literature on transitional justice . . . is not concerned with measuring and
overcoming the persistent effects of unjust advantage from the past on social and
economic relations under the successor regime.89

Instead, the fields remain divorced from one another, fostering a notion that
transitional justice can contribute to stabilizing the future by resolving the past
while ignoring deep and abiding inequalities or socioeconomic relations that may
well contribute to ongoing violence.

87 The importance of understanding root causes is itself debated. Susan Woodward asserts that the
transformative nature of war means that ‘creating a sustainable peace requires addressing the reality
created by that war – the outcomes, not the causes.’ Susan L. Woodward, ‘Do the Root Causes of Civil
War Matter? On Using Knowledge to Improve Peacebuilding Interventions,’ Journal of Intervention
and Statebuilding 1(2) (2007): 143–170.
88 Some examples of interventions in this contested area: Astri Suhrke and Julia Buckmaster, ‘Aid,
Growth and Peace: A Comparative Analysis,’ Conflict, Security and Development 6(3) (2006):
337–363; Paul Collier, Breaking the Conflict Trap: Civil War and Development Policy (New York:
World Bank, 2003); Frances Stewart, WIDER Annual Lecture 5: Horizontal Inequalities: A Neglected
Dimension of Development (Helsinki: United Nations University World Institute for Development
Economics Research, 2002).
89 Meister, supra n 25 at 97.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 289

Development aid may contribute to the structural violence of a society, uninten-

tionally supporting socioeconomic divisions and aiding in the creation of violent
conflict.90 Inequality of resources or the unequal distribution of development
aid may foster conflict in unstable countries. In order to participate fully in the
reconstruction process, organizations and individuals involved with transitional
mechanisms can benefit from examining the circumstances of development on
the ground and the ways in which development, justice, human rights and other
issues might contribute to the destabilization of a political situation. Development
processes rely to some degree on political stability, which partly is reinforced by rec-
onciliation activities. Reconciliation may develop more effectively if development
processes do not undermine the fragile local peace.91
Recent work in conflict studies and human security has indicated that the ap-

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

parent ethnic, racial or religious causes of civil conflict may sometimes mask
economic origins.92 The use of identity to inspire violence or to mobilize parts of
the citizenry behind a government or an insurgent/liberation movement requires a
deeper accounting of the structural and political causes of conflict. The approach of
structuring a reconciliation or truth-seeking mechanism around the terminology
of the conflict rather than, potentially, the underlying meaning of those terms risks
creating a postconflict mechanism that uses the same discourse as the combatants.
As Richard Wilson suggests,
Judging the past on its own terms [in South Africa] contaminated the new democratic
conception of justice. The exclusion of crimes that were legal under apartheid created
a false distinction between the normative aspects of a racial authoritarian order and
illegal forms of violent coercion, when in fact one implied the other.93

In any area where land distribution and colonial conquest continue to play a
significant role in contemporary conflicts, these issues are particularly salient. The
‘reality’ of a past economic system pales in comparison with the way in which it
has been memorialized, as ‘remembered land systems can be used to forge social
difference today.’94 In Rwanda, the doubled silence on the ethnic relationship to
resource distribution and on the role of those factors in the genocide may make
sustainable reconciliation difficult to contemplate, particularly assuming the trope
of transitional justice that memorialization and narrative help to stabilize the new
society by remembering the past. A 2001 survey stated that land-related problems

90 See, generally, Uvin, supra n 2.

91 Karen Brouneus, Reconciliation: Theory and Practice for Development Cooperation (Stockholm:
Swedish International Development Cooperation Agency, 2003).
92 Bernard Wood, Development Dimensions of Conflict Prevention and Peace Building: An Independent
Study Prepared for the Emergency Response Division (New York: UN Development Programme,
2001).
93 Wilson, supra n 63 at 207.
94 Chris Huggins and Johan Pottier, ‘Land Tenure, Land Reform, and Conflict in Sub-Saharan Africa:
Towards a Research Agenda,’ in From the Ground Up: Land Rights, Conflict and Peace in Sub-Saharan
Africa, ed. Chris Huggins and Jenny Clover (Johannesburg: Institute for Security Studies, 2005),
385.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

290 Z. Miller

in Rwanda ‘are considered to be the most serious and greatest negative factors
hindering sustainable peace.’95
The Rwandan context represents one of many examples of the interaction among
conflict, resource distribution, transitional justice and the possibility for renewed
violence. When transition ‘ends’ without addressing these foundational points, the
transitional justice institution may permit the renewal of physical violence based
on the unspoken continuation of structural violence. The very act of narrowing the
parameters within which history is told, reconciliation conceived, the past narrated
or justice defined may incite conflict.

Conclusion: Confronting Blindness

The role of international actors in the process of spreading the ideas and ideals

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

of the ‘movement’ of transitional justice has not yet been fully explored in the
literature, perhaps because of (at least in part) the tendency of scholars or ex-
commissioners to become consultants to, rather than fully external critics of, the
enterprise. Thus, rather than offering a critical exploration of the influence of one
area on another or of resulting patterns of invisibility, the literature tends to discuss
the possible ‘toolbox’ or the ‘lessons learned’ in a particular area.
This analysis of the international transitional justice enterprise relies not on the
notion of bad faith or evil intentions; rather, it takes as a starting point the notion
that the noble beliefs of its agents may allow them to unwittingly contribute to
bad consequences – for example, reinforcing inequality. The effects of a global
phenomenon of transition and a set of internationals who purport to assist in its
dissemination may be far broader and deeper than is currently understood. Each
of the subcommunities interested in transitional justice brings to its series of tasks
a particular interest in the formation of the mechanism, a stake in its construction
and a discourse about its constitution. All tend to lack a sense that they contribute
to governing the transition itself, despite helping to shape, and sometimes narrow,
the international sense of the elements of postconflict reconstruction and the
definitions of the slippery terms ‘justice,’ ‘truth’ and ‘reconciliation.’
In a connected sense, policy makers among them may avoid the idea that the
project of constructing a truth commission, recommending reparations or estab-
lishing a court has a politics to it beyond the accepted ‘good’ of truth telling,
memorialization, overcoming impunity and fostering reconciliation. While dis-
cussions might address the problems around international law with regard to
amnesties, the tradeoffs of justice for truth or the technical mechanisms that best
address the inherent lack of due process, they rarely engage questions of power
relations, the fetishization of law in the postconflict justice community or the
ideological interests that might underpin the sudden preference for one idea of
reconstruction over all others.
Once viewed as a global phenomenon rather than an isolated set of institutions
or localized occurrences, transitional justice becomes an enterprise, practice and
95 Wyss, supra n 68 at 17.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291

 Effects of Invisibility 291

project to be analyzed in a broader frame. By examining its patterns of exclusion,

we may begin to understand its internal political preoccupations. The invisibility of
economics in the discussion of transition is not evidence of a concerted, conscious
conspiracy, but it cannot be considered coincidental. The narration of the past
as one of political repression rather than economic oppression, or the notion
of transition as a dramatic break from a ‘bad’ to a ‘good’ regime, inherently
narrows the possibilities for imagining redistribution. This article offers a critical
perspective on the literature and institutions of the field, but it is merely a starting
point for a broader conversation. Rather than offering programmatic suggestions
for the resolution of the problems it addresses, this article relies on the intuition
that we must reveal and untangle extant biases and their effects as a first step toward
their correction.

Downloaded from http://ijtj.oxfordjournals.org/ by guest on September 27, 2015

Transitional justice is based on a series of promises to society and to individuals: of
a reformed state, of accountability, of reconciliation, of rights, and fundamentally,
of change. The institutions of transitional justice are, at base, definitional. They
serve not only to delineate past and future but also to define violation and crime,
victims and perpetrators, injustice and morality. They demarcate the boundaries
of acceptable demands by a citizenry newly awarded its rights and narrate them-
selves as instruments of justice, political will, stability and peace. The literature
and institutions of transitional justice are, like their ‘parent’ field of human rights,
beginning the process of coming to terms with the past invisibility of economic
questions in their midst. In order to address the questions fully, however, tran-
sitional justice must be seen as a fundamentally political experiment, as a set of
mechanisms that ‘take a side’ in how a new state operates and as both independent
institutions and instruments beholden to and guided by the priorities of a new
state and of the international community. If transitional justice as a field wants to
engage with the issues outlined in this article, it must do so with open eyes, not only
overcoming the blindness of the past but also contemplating the possible biases of
the future. As a definitional project, transitional justice cannot stand aside from the
distributional consequences of its inclusion or exclusion of particular questions.
If economic issues are to remain separate, that must be articulated; if they are to
be included within the scope of justice, the actors and scholars engaged with the
project must pay careful attention both to past modes of constructing invisibility
and to overcoming that blindness.

International Journal of Transitional Justice, Vol. 2, 2008, 266–291