Abstract
Excerpted From: Cosmas Emeziem, Who Is to Guard the Guardians Themselves? Russia's Invasion of Ukraine, Racism and Transitional Justice, 20 Loyola University Chicago International Law Review 1 (Winter 2023) (205 Footnotes) (Full Document)
Transitional Justice is articulated and narrated as a set of judicial and non-judicial measures for accountability and remediation of mass human rights violations, reparation, restoration, (re)affirmation of just public order, and prevention of repetition in the aftermath of conflicts or authoritarian regimes. Transitional Justice is also about foresight, imagination, and proactive justice. Institutions and societies can respond to threats to human rights, such as conflicts, by timely and tailored (re)imagination and reform of institutions and practices, thus dismantling those foundations that bolster impunity and encourage violence against others, such as racism.
This is vital because racism in Transitional Justice is not unique to the (sub) discipline. Rather, racism in Transitional Justice is an iteration of racism in International Law. To dismantle racism in Transitional Justice, scholars must see these tangles between International Law and racism-- which have continued to morph and shape the times and branches of the law.
Unearthing racism is crucial because racism in transitional justice is both a backward and forward phenomenon--a swinging rapier that marks the temporal dimensions of the experiences of racialized communities and peoples around the world. is an ever-present problem because although the human cohabitation of the earth across cultures, times, and climes is given, the existence of ideologies of domination has often created avenues of alienation and violence.
Racism is also backward in providing easy foundations of inferiorization--to justify previous violence and sow the seeds of future violence. is also mutant and coopts other forms of prejudices such as Nazism, antisemitism, and violent nationalism in service of its inherently discriminating goals. It is forward because it consolidates the othering and consequent violations through acts of violence, cycles of violence, theories of inferiority, silencing, and total domination. This can be done by ensuring that vulnerable populations and communities are overawed or exterminated so that no one is left to tell the story.
At other times, those who survive are forever silenced out of fear: “The casualties are not only those who are dead, they are well out of it, [ ... ].” By so doing, the narratives and memories of violence are preempted so that what is remembered, or the memories of the atrocities are colored to suit the interests of the conquering power. This robs the living by ensuring nonrecognition, remediation, reparation, and restoration. It also inspires impunity. The enduring temporal and inter-temporal significance of these can be dispositive. Over time, the story of the victims could become mere
--if not complete erasures--on the vast narrative of international law.
I contend so because international law's structures, encounters, and narratives have often been about racial othering and consequent violations. Sometimes, these violations are deemed proper for the “civilization” and “development” of the victims. This is the source of racism in Transitional Justice. At other times racism is embedded in the hierarchies and relationships formed in international law and its effect on the dynamics of international relations. Many scholars of the global South continue to explore the theme of racism, although doctrinal international law often peripheralizes, if not wholly avoids, the discussion of race.
To overcome racism in transitional justice, we must engage these grounds of racialized encounters in international law. This is vital because when imperial powers and interests are implicated, accountability and transitional justice become almost impossible. This can be seen in international law and the domestic sphere with violent law enforcement against Blacks and minorities--and how that often escapes reckoning.
Imperial powers ignore our protestations because they deem themselves the guarantors of international order. Scholars sometimes enable these imperial dispositions by emphasizing “the clash of civilizations” and the easy resort to unilateral use of force in international law. The powers of the members of the United Nations Security Council (UNSC-P5) consolidate this commitment to a presidium that is answerable only to itself, either as a composite entity or to themselves individually: so “who is to guard the Guardians themselves [ ... ] in crime, complicity guarantees silence.” Such plenary powers, when misused, can cause significant harm to communities and peoples, as is currently the case in Ukraine.
Thus, on February 24, 2022, when Russia commenced a new phase of the war against Ukraine, it was advancing an imperial pursuit and, at the same time, justifying it with rhetoric of otherness, superiority, and a claim of the right of conquest and domination. The war has been condemned by many countries of the United Nations (UN) and other international and regional organizations such as the European Union (EU) and the North Atlantic Treaty Organization (NATO). Equally, an action has been commenced at the International Court of Justice (ICJ) seeking to hold Russia responsible.
The International Criminal Court (ICC) has also followed up on aspects of the problem with an indictment of Putin. Yet, the question remains whether there would be more significant transitional justice accountability and what that may look like. Would it be a Nuremberg-styled Tribunal or a Truth Commission in Kyiv? These questions are crucial in understanding the (im)possibilities of accountability when a member of the United Nations Security Council or other big powers violates international law. Nonetheless, UN resolutions on the war in Ukraine are crucial in analyzing the ongoing iteration of the belligerency between Russia and Ukraine on many grounds.
Three grounds are essential to our discourse. First, the United Nations General Assembly (UNGA) framed its resolutions as aggression against Ukraine. This means that the UNGA has identified a prima facie situation of a war of aggression, implicating Russia's state responsibility in international law. Having been so identified, the war and postwar accountability measures relevant to a war of aggression have also been implicated. At the minimum, a Nuremberg-styled Tribunal, or as we saw in the Yugoslav War Crimes Tribunal, is essential to any post-conflict accountability mechanism.
Second, International Criminal Court measures can be issued against leaders and other key players in the War. In many respects, the issues involved are questions of universal jurisdiction. States may, therefore, use available resources within their sovereign powers to pursue accountability. Finally, situations of aggression require reparative accountability and have been exerted in similar circumstances in international law.
Still, we should recall that this phase of the war in Ukraine is an extension of the belligerence between the two countries since 2014 when Russia annexed Crimea and subsequently claimed and occupied other Ukrainian territories. These claims of Russia have been faulted by scholars and policy institutions, as attested to by the UN resolutions on the war in Ukraine and previous resolutions focusing on Crimea. Regardless, Russia continued and maneuvered a referendum to consolidate the Crimean annexation from Ukraine as a case of self-determination.
The damages and costs of wars to humanity and international law have not been fully articulated. Like other wars, the conflict in Ukraine has a high destructive capacity. Wars alter destinies and sometimes eliminate entire communities. The more difficult aspect, though, has been the ambivalence of international legal operators towards a deracialized international law and order. In other words, racism has endured in international law and order. Certain peoples have often been viewed as inferior; thus, their conquest and domination is a natural cause and calling of the principal structures of international law. This is evident in the war in Ukraine now--especially considering the rhetoric of inferiority from Moscow.
The disposition to dominate has inspired many wars of expansion, conquest, and violations of human dignity--which are never reckoned with in transitional justice. This lack of reckoning for historical injustice continues to affect the tenets of transitional justice, especially as it pertains to colonial violations and reparations for historical injustices such as enslavement, lynching, dispossession, displacement, and forced assimilation through the Indian residential school system.
For centuries, tribes, nations, and peoples, perceived as the racial other, have been at the mercy of dominant forces to the ruin of humanity. The global law and order founded on racial supremacy can never be a source of sustained peace and deracialized transitional justice. It will always be brittle and dependent on the continued strategic games of states and dominant powers. In other words, a deracialized international order is a fundamental standard for global justice, collective just security, and a deracialized transitional justice.
The continuity of treating specific populations, groups, and peoples as disposables is a significant problem in international law. This has enduring legacies for transitional justice. The defunct Soviet Union had considerable labeling of communities even within the Union, suggesting that 'some are less than others.’ Perhaps we can also consider the insular cases in the United States increasingly highlighting the imperial circumscription of groups based on race and other categories.
Other symptoms of the racial orders we maintain domestically and transnationally can be seen in migration policies and the dehumanization of suspected immigrants and workers. In apartheid South Africa, Blacks were required to carry passes based on supremacist laws and regulations. Colonized peoples under British rule were also “British-protected persons.” They were designated based on the discretion of colonial administrators. The exclusion of people in the colonies from British citizenship was a tool of racial ordering, control, and domination. Continuities of othering are also apparent in the case of the Rohingyas and other targeted groups worldwide.
Hence, the politics and promises of being categorized as unequal, inferiors, incomplete citizens, and inchoate sovereigns remain with us. Sometimes, these designations set the foundation for mass human rights atrocities. What has been lacking is not the imaginative insight to design tools of discrimination, othering, and violence but the willingness to apply that creativity to produce an inclusive and deracialized international law order and transitional justice.
The inability of the United Nations (UN) to facilitate an amicable settlement of the Ukrainian war and the insistence on territorial expansion by Russia reveals the persisting inertia within our multilateral institutions. The entanglements of the five permanent United Nations Security Council (UNSC-P5) members with these problems have further exacerbated the incapacitations of our international institutions to reach for justice, accountability, and enduring peace.
We must imagine new pathways that will guarantee the equality of all peoples, even amid unequal capacities and material resources. This entails accepting the realities of racism in the system and working to dismantle them. In Part I, this Article sheds light on the problems of global (in)justice, war, and postwar accountability. Part II probes the conflict in Ukraine--examining its imperial foundations and self-determination entwined with the conflict. Part III highlights how racism manifests through time, place, manner, epistemologies, and logic(s) of international law and transitional justice. Part IV delves into collective just security--exploring how Critical Race Theory (CRT) and Third World Approaches to International Law (TWAIL) can help foster a less imperial and racialized international system and transitional justice. In Part V, the Article further contends that lasting global peace does not lie in violent domination. Part VI concludes the Article with suggestions on pathways to deracialized international law and transitional justice.
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The ongoing conflict in Ukraine is a reminder of the failure of the global community to achieve peace and equitable security. International law has often been used to perpetuate hierarchical relations between states, resulting in systemic imbalances and the audacity of powerful nations to flout legal norms without fear of reprisal. To address these issues, a reconceptualization of the approach to global peace is necessary, which entails holding all stakeholders accountable for Ukraine's current plight.
The article argues for the decolonization of the foundational structure and evolution of international law and policy, which can be achieved by adopting theoretical frameworks like Critical Race Theory and Third World Approaches to International Law. To achieve lasting peace, multilateral structures must prioritize inclusivity and equity over balance-of-power, which perpetuates discriminatory application of international law. Recognizing the impact of war on individuals, democratic processes, and mental health is essential to addressing the issues of transitional justice faced by racialized communities.
Equally, subaltern ideals of recognizing our common humanity across lands and climes can inspire new hopes of peace, global justice, accountability, and security for all peoples in an unequal world in the second decade of the 21st century and beyond. directly affronts our common humanity and humanity law, which transitional justice promises. Therefore, a deracialized and people-oriented approach to international law holds a better promise for peace in our world.
Hence, we cannot be indifferent to the plight of others or assume that we are too distant from the problems of conflict and impunity because parts of our societies are committed to the pathways of domination and violence. These are spaces where we should work to make a difference through transitional justice projects and deliberations--because there are “deaf republics” everywhere.
Drinan Fellow and Visiting Assistant Professor of Law, Boston College Law School, Newton, MA. He serves on the Editorial Board of the African Journal of Law and Justice System.
