ARTICLES How Power Dynamics Influence the “North-South” Gap in Laurel E. Fletcher and Harvey Transitional Justice M. Weinstein “North-South” Dialogue: Bridging the Gap in Transitional Justice Workshop Transcript BERKELEY JOURNAL OF INTERNATIONAL LAW VOLUME 37 2018 NUMBER 1 ABOUT THE JOURNAL The Berkeley Journal of International Law (BJIL) (ISSN 1085-5718) is edited by students at U.C. Berkeley School of Law. As one of the leading international law journals in the United States, BJIL infuses international legal scholarship and practice with new ideas to address today’s most complex legal challenges. BJIL is committed to publishing high-impact pieces from scholars likely to advance legal and policy debates in international and comparative law. As the center of U.C. Berkeley’s international law community, BJIL hosts professional and social events with students, academics, and practitioners on pressing international legal issues. The Journal also seeks to sustain and strengthen U.C. 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BERKELEY JOURNAL OF INTERNATIONAL LAW VOLUME 37 2018 NUMBER 1 CONTENTS HOW POWER DYNAMICS INFLUENCE THE “NORTH-SOUTH” GAP IN TRANSITIONAL JUSTICE Laurel E. Fletcher and Harvey M. Weinstein................................................................................................1 “NORTH-SOUTH” DIALOGUE: BRIDGING THE GAP IN TRANSITIONAL JUSTICE Workshop Transcript....................................................................................................................................29 BERKELEY JOURNAL OF INTERNATIONAL LAW VOLUME 37 2018 NUMBER 1 BOARD OF EDITORS Editors-in-Chief LAUREN KELLY-JONES NATHAN KELLER Managing Editor ALLISON MURRAY Senior Publishing Editor Senior Submissions Editor MARIBETH HUNSINGER Senior Executive Editor CHARLOTTE CHUN JULIA JACOVIDES Internal Supervising Editor External Supervising Editor PAULA GERGEN Executive Editor TAE KIM JIARUI WANG Publishing Editor Submissions Editors ELIZABETH GLUSMAN Senior Development Editor NORAH ARAFEH HILARY WONG BRENDEN GLAPION Blog Editor MICHAEL DAV ID HARRIS EDWARD RICHTER Symposium Editors LEYLA KARIMZADEH CASSANDRA CALDERON SARAH MANEVAL HARRIS MATEEN ROBYN PARISER ISAAC RAMSEY Web Editor NIKITA YOGESHWARUN Senior Articles Editors SARAH ALMOND PIKE MADDIE BOYD ANDI MADDOX LUNA MARTINEZ GOMEZ ZHU ZHU Articles Editors DEBORAH CHOI CAROLINE SOUSSIOFF YEJI HAN AMBER MUHAMMAD ISAAC WEBB ASHLEY LEE LIJA SILIUNAS ALEXANDRA ZARETSKY Faculty Advisors MARCI HOFFMAN KATERINA LINOS How Power Dynamics Influence the “North- South” Gap in Transitional Justice Introductory Essay by Laurel E. Fletcher and Harvey M. * Weinstein INTRODUCTION ............................................................................................. 2 I. WORKSHOP FORMAT ................................................................................. 5 II. WHAT DID WE LEARN? ........................................................................... 5 A. Dynamics of Colonialism in Transitional Justice Interventions ............................................................................ 6 1. Collective Memory and Legacies of Colonialism .............. 8 2. Collective Amnesia and International Transitional Justice Interventions ...................................................................... 9 B. Dynamics of the Legalization of Transitional Justice ............ 10 1. The Legal Framework of Transitional Justice and the Politics It Promotes ......................................................... 11 2. The Politics of Social Justice as Transitional Justice ..... 14 C. Dynamics of Research Extraction .......................................... 16 1. North-Based Researchers, South-Based Sites ................. 17 2. Extractive Pressures on North-Based Research .............. 19 3. South-Based Researcher-Practitioner Dynamics ............ 21 D. Funding Dynamics ................................................................. 22 1. Funding Top-Down Priorities ......................................... 22 DOI: https://doi.org/10.15779/Z38QN5ZB61. * Laurel E Fletcher is Clinical Professor of Law, University of California, Berkeley, [email protected]; Harvey M Weinstein is Senior Research Fellow, Human Rights Center, University of California, Berkeley and a retired Clinical Professor, School of Public Health, [email protected]. The order of authors is alphabetical. The authors would like to thank the members of the Steering Committee for and the participants in the workshop giving rise to this publication, North-South Dialogue: Bridging the Gap in Transitional Justice, for dedicating their considerable energies and talents to this effort to think together about how to address current troubling dynamics in the field and for their valuable feedback. We also thank Mark Drumbl and the participants of the 2018 ISA conference for helpful comments on an earlier draft of this essay. We are grateful to Katrina Natale for her research support and to Olivia Layug Balbarin for preparing the transcript. Any remaining errors are our own. 1 2 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1 2. Funding Interventions vs. Funding Structural Changes . 23 3. The Dilemma of South-Based Grantees .......................... 24 4. Funding Reparations ....................................................... 25 III. WHAT’S NEXT? ..................................................................................... 26 CONCLUSION .............................................................................................. 28 INTRODUCTION Transitional justice is an area of inquiry, a set of practices, a form of politics, a career, and/or a source of hope and disappointment, to name a few of its facets. Centered on the idea that in the aftermath of mass violence or periods of repression, societies need to undergo processes to address past harm to ensure a peaceful future, transitional justice unabashedly offers itself as a moral project, a ritual cleanse. A community of interested actors—advocates, funders, policy makers, practitioners, scholars, and victims—is invested in its success. Although how success is defined varies with how the actor interprets the events that trigger a transitional justice response. While stakeholders are essentially in agreement around fundamental questions of goals and tactics, the “community” is not static. Critiques of transitional justice abound within the community, generally focused on shortcomings in theory and practice. An important part of the critique has been that transitional justice as now conceived is top-down, formulaic, overly focused on international criminal prosecutions, limited to civil and political rights, and, in the worst case, nothing but a shill for global capitalist expansion. In response, there have been calls for a transitional justice that is bottom-up; transformative; economic, social, and cultural rights-focused; and responsive to corporate complicity and to structural inequities. In turn, critics who think transitional justice continues to overpromise and overreach question this expansive agenda. Concerns are raised about a move away from an accountability-focused agenda toward interventions that are development-focused or even nation-building. The extent to which advocates and victims have succeeded in making victims a central focus of transitional justice does not appear to have brought satisfaction to victims nor to their advocates. Disquiet remains. The gap between the ideal and the reality is brought into sharp relief when attitudes towards these processes are examined through a prism of the relationships between the so-called “Global North” and “Global South.” However, even