Every effort to provide and ensure justice necessarily aspires to continuously expand justice as widely and as deeply as possible. It ought to be widened to cover everyone, and deepened to cover all aspects of the civic (and social) life of groups and individuals.

Justice has to, also, be given a life beyond the immediate towards a better life for all. The notable exceptions aside (incarcerated persons are stripped of certain rights) and as an ideal state, justice cannot be divisible. That, I’m afraid, is as far as we can go.

I should add that there may be separate discussions about transitional justice and restorative or distributive justice. This takes nothing away from the belief that justice should be applied equally to everyone. It’s not an easy position to take, but I do anyway.

Justice becomes divisible, however, when some people expect “more justice” than others, or when one group’s moral claims reduce the claims and expectations of others. This may apply readily within legislative boundaries (in countries), but becomes problematic – difficult to formulate, apply and enforce – across national boundaries.

For this, we have international institutions, supra-national institutions to which countries cede limited measures of power. A group of people in, say, The Netherlands, can go to European Union institutions if they believe their own country is violating their human rights.

One important case that demonstrated the power of differing moralities and expectations was at the Southern African Development Community Tribunal, which, according to its official website, was suspended in 2010, reportedly after a group of Zimbabwean citizens filed a complaint – expropriation without compensation of private property – in 2007 (see also here).

Should a state implement a policy, such as expropriation without compensation of private property, it will be challenged on the basis of a country’s constitution, and if it fails, the complaint may be taken to the supra-national institution. As I am not a lawyer or legally trained, that is about as much as I can say about “the law”.

A useful footnote here is a reminder that in some parts of the world – those parts influenced by European thought – justice and the law include punitive measures, whereas in other parts of the world, forgiveness plays a big part in community expectations. However, the world remains shaped in the image of the Europeans, so that is a good place to continue a discussion on transitional justice, or international justice.

The key to understanding the way international law (much of which relies, in day-to-day work, on treaties, agreements, letters of understanding) actually works is whether a country has gone from accepting, politically, a decision that emerges from a summit or a treaty, to adopting the decision in its national legislature.

That is the point at which a country may be held accountable. It is, also, at this point, where one country’s moral position – let’s refer instead to its power and political position, it’s just easier – takes precedence. One country’s moral claims easily shape its politics, and any opposition to its politics becomes a moral question…

It is in this context that a discussion on an international truth and reconciliation commission/forum (ITRC) can be entered. Until a country adopts an “international” law, it will place itself beyond reach.

Always about power

An ITRC will probably not work, in the sense that it may be generally accepted as useful for transitional justice, but only countries that have adopted its powers of enforcement may be brought before such a tribunal. 

It may also not appeal to communities that have “something to lose”.

I stay with the expressed ideal of Holocaust survivor, Elie Wiesel, who reportedly said: “We may not have justice, but that does not mean we should stop fighting for justice.” 

In most cases, justice is ultimately about power (how often have we seen the way that money buys the best legal defence) and will, which takes courage and a willingness to compromise.

Politics and democracy, the settling of disputes or conflict, invariably includes compromises. It should also include healthy doses of humility. It is easier to discuss this in domestic political economy, state and society than it is internationally where the dual sovereignty of states is held dear.

Externally, a sovereign state has the right to be recognised by its peers and awarded due respect, and internally that state has the sole right to govern. Though history has shown us that sovereign states, like Nazi Germany or Cambodia’s Khmer Rouge, can be charged and wars have been declared against them for violations of human rights. Those are extreme examples.

There are countries that barely need an incentive (or moral weight) to invade and occupy distant lands; sometimes justification is simply part of the imaginary of the invading force’s leaders.

Russia’s invasion of Ukraine is one where the decision to invade was based on Moscow’s moral claims, which have been presented (by Russia) as outweighing the sovereign claims of Ukraine. In the end, Russia invaded Ukraine because it could, and the US invaded Iraq because it could.

This brings us back to claims of morality – and power. 

Whose morality weighs heavier, and makes the strongest claim for justice? Answering these questions means nothing when one of the parties decides that international law or the morality claims of others are meaningless.

How useful would an ITRC be?

It’s all good and well to make a claim to broaden and deepen justice. That, unfortunately, is where a discussion will be ended by some communities (internationally, read “states”) that claim they deserve more, better or fairer justice that is invariably based on moral claims and draws strength from its population, docile bodies.

States rely on docility; a population that will not challenge ideas of exceptionalism, divinity and the “necessity” of “savage wars of peace”. 

A country that claims exceptionalism, and where that notion of exceptionalism has seeped into public identity and consciousness, may insist that it cannot be held accountable by others (people and institutions) that are not, themselves, exceptional.

Where a country defines itself as a “cause” and not a country, everything that everyone in that country says and does becomes sanctified as part of that cause.

This means that an ITRC will probably not work (it will probably not get off the ground). 

We know from South Africa’s process of truth and reconciliation that these processes are often more about “getting on with the business of business”, shielding villains, or sacrificing some actors than they are about a lengthened, durable justice that can result in a better life today and tomorrow.

There are very many people in South Africa who (still) will not accept the outcomes of the country’s truth and reconciliation process.

The first step of creating an ITRC would be to acknowledge that European law cannot be the entire/exclusive body that is consulted. A second would present the first, probably an immovable, obstacle. 

How would one convince the North Atlantic Community, its allies and recipient of largess around the world, that Western ideas of justice cannot be transplanted and applied universally in a world that is going through significant social, structural and historical change?

Almost all international institutions were crafted on the basis of European law. 

This notwithstanding, there are countries in the European offshoots (Canada, the US, Australia) that may refuse to be held accountable by those very international (supra-national) institutions. They will use their own law (domestic legislative processes) to prevent international law from reaching them.

For an ITRC to be successful, it would require a lot of humility and acceptance that the post-war liberal international order was created in the image (largely) of the US and the North Atlantic Community.

Detailed scrutiny of the legal and institutional bases of international organisations created after World War 2 shows that most of the countries that are now expected to adhere to international law are beyond the borders of the European world. 

Those countries may have a different approach to justice; it may not be punitive, and focus instead on restoration, forgiveness, humility, non-violence, collaboration and diversity.

In the current period, these are dismissed as “globalism”, “multiculturalism”, “wokeness” and (even) “race-baiting” when it holds the Europeans and settler colonial powers to account.

Though I am not a political realist, I have come to believe that the powerful will do as they please and what they can, and that the weak will suffer what they are made to suffer. DM