Pardoning Profit: Neoliberal Transitional Justice in Côte d'Ivoire

by

Joanna M. Rice

A thesis submitted in conformity with the requirements
for the degree of Doctorate of Philosophy

Graduate Department of Political Science
University of Toronto
# Pardoning Profit: Neoliberal Transitional Justice in Côte d'Ivoire

Joanna M. Rice

Doctor of Philosophy

Graduate Department of Political Science

University of Toronto

2020

## Abstract

This dissertation builds on an emerging critical literature that contends transitional justice aligns with neoliberal governance by overlooking socioeconomic harms and by protecting elite interests. Using Côte d'Ivoire as a case study, the dissertation argues that contemporary transitional justice does not merely align with neoliberalism in postwar contexts; it advances this reordering of governing and social order by limiting the moral obligation on government and society to respond to structural injustices. By restricting the moral obligation to address the suffering of others to a limited set of human rights violations, transitional justice establishes a new moral order where harms caused by individual rights violations are recognised as intolerable and demands justice, but the suffering caused by grave inequality, deprivation and other forms of structural injustice are implicitly tolerated and hence more easily overlooked by the state and by fellow citizens. Transitional justice institutions thus shape post-conflict justice into a process that protects elite interests and excludes transformative reforms or more radical demands such as wealth or land redistribution. The national reconstruction process that followed Côte d'Ivoire's decade long civil war combined neoliberalisation and transitional justice as core priorities of the post-conflict regime. This dissertation shows that transitional justice in Côte d'Ivoire had the dual function of reinforcing neoliberal reforms while also legitimizing this reordering of
governance as just and democratic. As such, it served as the ideological foundation for President
Alassane Ouattara's expansive and market-oriented governance reform agenda while
simultaneously advancing a discourse domestically and abroad about the rights-respecting and
liberal democratic nature of the new government.
Table of Contents

PARDONING PROFIT: NEOLIBERAL TRANSITIONAL JUSTICE IN CÔTE D'IVOIRE I

TABLE OF CONTENTS IV

CHAPTER 1 1

1. NEOLIBERAL TRANSITIONAL JUSTICE 1

1.1. INTRODUCTION 1

1.2. NEOLIBERAL TRANSITIONAL JUSTICE 10

1.2.1. THE HUMAN RIGHTS CRITIQUE 11

1.2.2. THE ECONOMIC AND SOCIAL RIGHTS CRITIQUE 18

1.2.3. WHERE DO WE GO FROM HERE? 24

1.3. CASE STUDY: CÔTE D'IVOIRE 26

1.3.1. RESEARCH METHODS 28

1.3.2. NEOLIBERAL TRANSITIONAL JUSTICE IN CÔTE D'IVOIRE 31

1.3.1. COMMISSION DIALOGUE, VERITE ET RECONCILIATION 33

1.3.2. TOLERABLE AND INTOLERABLE SUFFERING 37

1.3.3. CÔTE D'IVOIRE AT THE ICC 42

1.3.4. PERMISSIBLE AND PUNISHABLE WAR CRIMES 44

1.3.1. WHY CÔTE D'IVOIRE? 45

1.3.1. THE QUESTION OF INTENTIONALITY 48

1.4. CONCLUSION 52

2. PURSUING MORAL RENEWAL: AN INTELLECTUAL HISTORY OF TRANSITIONAL JUSTICE 55

2.1. INTRODUCTION 55

2.2. PURSUING MORAL RENEWAL 56

2.3. THE TURN TOWARDS RECONCILIATION 59

2.4. MERGING FIELDS: PEACEBUILDING AND TRANSITIONAL JUSTICE 64

2.4.1. THE 'TOOL-KIT' APPROACH 69

2.1. CRITICAL RESPONSES 71
<table><tr><td>2.2. CONCLUSION</td><td>74</td></tr></table>

<table><tr><td>3. REWRITING INEQUALITY AS ETHNIC CONFLICT</td><td>77</td></tr></table>

<table><tr><td>3.1. INTRODUCTION</td><td>77</td></tr></table>

<table><tr><td>3.2. THE IVORIAN LAND AND LABOUR CONFLICT</td><td>79</td></tr></table>

<table><tr><td>3.3. THE PRO-DEMOCRACY MOVEMENT</td><td>91</td></tr></table>

<table><tr><td>3.3.1. DIVIDING THE YOUTH</td><td>94</td></tr></table>

<table><tr><td>3.4. THE SUCCESSION CRISIS</td><td>99</td></tr></table>

<table><tr><td>3.4.1. IVORITÉ</td><td>101</td></tr></table>

<table><tr><td>3.4.2. A COINCIDENCE OF DIOULA REPRESSION AND OUATTARA'S AMBITION</td><td>105</td></tr></table>

<table><tr><td>3.5. L'ANNEE TERRIBLE</td><td>110</td></tr></table>

<table><tr><td>3.5.1. GBAGBO ELECTED</td><td>113</td></tr></table>

<table><tr><td>3.5.2. "LE CHARNIER DE YOUPOUGON"</td><td>114</td></tr></table>

<table><tr><td>3.6. SO BEGAN A DECADE AT WAR</td><td>117</td></tr></table>

<table><tr><td>3.6.1. A VIRTUOUS REBELLION</td><td>118</td></tr></table>

<table><tr><td>3.6.2. 'LES ESCADRON'S DE LA MORT'</td><td>119</td></tr></table>

<table><tr><td>3.7. A TOPOLOGY OF YOUTH VIOLENCE</td><td>123</td></tr></table>

<table><tr><td>3.8. REWRITING INEQUALITY AS ETHNIC HATRED</td><td>128</td></tr></table>

<table><tr><td>3.8.1. ATONING BEFORE THE ELITE</td><td>132</td></tr></table>

<table><tr><td>3.8.2. TRANSFERRING BLAME TO AVOID TRANSFORMING INJUSTICE</td><td>135</td></tr></table>

<table><tr><td>3.9. CONCLUSION</td><td>136</td></tr></table>

<table><tr><td>4. PERMISSIBLE AND PUNISHABLE WAR CRIMES: SELECTING THE HEROES AND THE VILLAINS OF NEOLIBERAL PEACE</td><td>139</td></tr></table>

<table><tr><td>4.1. INTRODUCTION</td><td>139</td></tr></table>

<table><tr><td>4.2. NEOLIBERAL PEACEBUILDING</td><td>141</td></tr></table>

<table><tr><td>4.2.1. THE FRENCH INTERVENTION</td><td>145</td></tr></table>

<table><tr><td>4.2.2. THE WAGA ACCORD</td><td>147</td></tr></table>

<table><tr><td>4.3. CÔTE D'IVOIRE VOTES</td><td>149</td></tr></table>

<table><tr><td>4.3.1. "FREE AND FAIR"</td><td>149</td></tr></table>

<table><tr><td>4.3.2. ELECTION DAY</td><td>151</td></tr></table>

<table><tr><td>4.4. COUNTING THE COSTS</td><td>155</td></tr></table>

<table><tr><td>4.4.1. WAS THERE EVER A DEMOCRATIC OPTION?</td><td>157</td></tr></table>
4.5. THE WINNERS AND THE LOSERS OF NEOLIBERAL PEACE 160

4.5.1. THE GOLF REPUBLIC 161

4.5.1. BREAKING GBAGBO 163

4.6. GBAGBO'S CRIMES AGAINST HUMANITY 165

4.6.1. THE RTI RADIO PROTEST 165

4.6.2. THE ABOBO WOMEN'S MARCH 167

4.6.3. THE MARKET SHELLING 169

4.7. TAKING THE WEST 172

4.8. THE ABIDJAN CAMPAIGN 179

4.9. THE ICC IN CÔTE D'IVOIRE 183

4.9.1. NAVIGATING LEGAL PRINCIPLE AND PROCEDURE 189

4.1. CONCLUSION 192

5. THE PROFITS OF PARDON 196

5.1. INTRODUCTION 196

5.2. FIRST WAVE NEOLIBERALISM IN CÔTE D'IVOIRE 197

5.3. COMZONE INC 204

5.3.1. DEVELOPING THE NORTH 207

5.4. BUILDING NEOLIBERAL PEACE IN CÔTE D'IVOIRE 211

5.5. POST-CONFLICT NEOLIBERALISATION 215

5.5.1. ÉMERGENCE VINGT-MILLE-VINGT ! 217

5.6. RECONCILIATION IS GOOD BUSINESS 221

5.6.1. LAND PRIVATIZATION FOR RECONCILIATION: A CASE STUDY 224

5.7. CONCLUSION 227

6. CONCLUSION 230

6.1. NEW KIND OF IMPUNITY FOR A NEW GOVERNANCE ERA 231

6.1.1. AN ELITE EXCHANGE 233

6.1.2. TOLERABLE AND INTOLERABLE SUFFERING 242

6.1.3. PERMISSIBLE AND PUNISHABLE WAR CRIMINALS 247

6.2. WHERE DO WE GO FROM HERE? 249

BIBLIOGRAPHY 254
<table><tr><td>APPENDICES</td><td>288</td></tr><tr><td>APPENDIX 1: RESEARCH METHODS</td><td>288</td></tr><tr><td>COPYRIGHT ACKNOWLEDGEMENTS</td><td>296</td></tr></table>
# Chapter 1

# 1. Neoliberal Transitional Justice

## 1.1. Introduction

Advocates of transitional justice claim that, in order to build peace that lasts, citizens need justice both in the form of redress for the past crimes and in the form of strong and reliable governing institutions going forward. This helps end cycles of violence by providing an alternative to vengeance and by signifying a clear break with the past. In the wake of mass atrocity and repressive rule, transitional justice marks the start of a rights-respecting era, where rule of law is reestablished and the population is assured that justice will be done should their rights and freedoms again be denied. Transitional justice, in this sense, establishes the moral order of a country in the aftermath of war or atrocity. Ruti Teitel was one of the first scholars to describe transitional justice as a distinct field of study and practice. Even in these earliest pieces, she identified renewing the moral foundations of a society as a core aim of transitional justice (Teitel 1997). Amongst its achievements as a tool of moral renewal, transitional justice has helped end impunity for state-sponsored violence, it has facilitated the rejection of racist governments, and it has contributed to building more inclusive communities and institutions. These are remarkable feats that are rightly celebrated by those who advocate for transitional justice as a means of building more peaceful and just societies. There is, however, another side to the role transitional justice plays reestablishing the moral order of countries transitioning from periods of repression
or war.

Transitional justice is deployed in incredibly difficult contexts, under circumstances where it is impossible to satisfy every need and act on every priority. Given its inherently overburdened agenda, transitional justice must determine what priorities will guide justice-seeking and what concerns must be left aside. It is thus a truism at the heart of transitional justice work that, in the aftermath of war or atrocity, not all injustice will be corrected, much suffering will never be repaired and many perpetrators will go unpunished. The best transitional justice can offer is to seek an acceptable and fair way forward given the tough realities it operates within. In this sense, every transitional justice process is a negotiation between competing priorities that determines which injustices cannot be ignored and which injustices simply cannot be addressed. That negotiation creates a particular moral order going forward, defining what calls for justice matter most during the transition, what moral obligations will direct governance in the new era, and what demands for justice or reform will be excluded from the readdress and reconstruction agenda. There are, in other words, certain parameters around the moral order that transitional justice establishes in post-conflict countries.

These parameters, I contend, have proven largely inflexible to the changing dynamics of conflict over the last forty years. Those parameters outline a fixed moral order, predetermined by the political and physical human rights lens transitional justice uses to view the past and devise reforms for future governance. That narrow lens excludes structural injustice, inequality and deprivation as core concerns for doing justice and reestablishing moral governance in transitioning states (Mamdani 2002; Mani 2008; Miller 2008; McAdams 2011; Nesiah 2016). That exclusion happens to the benefit of a national and global elite who can reaffirm and legitimatize their privileges and their dominant standing by deploying transitional justice.
Transitional justice serves this purpose by signaling that moral and just governance is reestablished, while simultaneously silencing demands from the victims' community and other marginalized groups for wealth redistribution and other transformative reforms. Transitional justice, in order words, lays the moral groundwork for post-conflict governance that is both elite-driven and business-friendly, and exclusionary to low-income and marginalized communities.

This dissertation therefore goes beyond the argument that transitional justice is largely blind to the structural roots of conflict. The core concern here is with the moral order established by transitional justice in post-conflict contexts, the result of which is to silence demands for structural change and secure a sanctified place for the economic sphere and ruling elites beyond the reach of post-conflict reforms and outside the moral obligation of the state to its citizens.

The global spread of transitional justice has advanced political and physical human rights over the last forty years, but these processes have also closed judicial space to demands for social and economic justice. In doing so, it excludes citizens who cannot feel justice is done without major structural change included on the post-conflict governance agenda. In contemporary wars, the experience of victimhood is irreducibly connected to economic deprivation and the need for structural change for a majority of victims. In that sense, the 'justice' of transitional justice is unsuited to addressing the abuses experienced in contemporary conflict and is often unsympathetic to the suffering victims face in the aftermath. The loss of a breadwinner, a business, or the ability to support one's family due to injury or trauma are primary constitutive elements of victimhood, often shaping victims' lives more profoundly than an original, overt act of violation. Consider the following transcript excerpt from the *Commission de Dialogue, Vérité et Réconciliation* (CDVR) hearings of a woman known to the commission as 'Affair 27':
‘The Secretary of the session calls Madame Y. She enters and takes her place. The Secretary recounts the facts concerning her situation. The victim seems disoriented; her eyes are haggard. She does not speak French and is accompanied by an interpreter.’

President Banny (speaking Baoulé): Madame, are you alright?

Victim (speaking Baoulé): Thank you. We were in the bush in Duékoué. They killed my husband and cut him into pieces. They then forced me to prepare his flesh and eat it.

Finally, I managed to escape, I ran to a village and they took me to Brobo. Please help me be who I was before, please help me find some health again.

President Banny (in French): She was forced to eat the flesh of her own husband, she asks us to find her care. She has a child, doesn't she?

Interpreter (in French): According to her, the man who helped her in Brodo got her pregnant. She is asking over and over again for some funds to start a business. She says she needs to care for herself and the child.

A child of two years is presented to the Commission then handed to the mother who begins breastfeeding.'

In this testimony, the woman, known only by her case number, is making a demand for justice articulated as employment so she can meet her family's basic sustenance needs. She experienced unspeakable horrors and yet her testimony presents those experiences as inseparable from the ongoing suffering of desperate poverty. Accordingly, her vision of resolution and her demand for justice is focused on gaining the ability to make a living for herself and to care for her child.

After the session, she received a thirty-minute debrief with a counselor and was given a bus
ticket back to her hometown, with some cash for meals on route. This arrangement is drastically unaligned to her suffering and the forms of redress she requested. So much so, it feels unsettling, to suggest that the truth commission contributed to ‘doing justice’ in her case. She may not be speaking in precisely these words, but this woman envisions justice as a change away from an economic and social reality where she and her child have no prospects beyond the misery and indignity of desperate poverty, as it compounds past abuses.

Where poverty and victimhood are inseparable, moving beyond past violations is impossible for conflict victims without also addressing wider structural oppression and social inequalities. This is because, for many conflict victims, the consequences of structural oppression and grave inequalities stand in the way of the basic right to life and livelihood. Given that, any discussion of post-conflict justice is incomplete without a clear picture of how conflict victims and their families will survive and regain a sense of dignity. A post-conflict judicial process that fails to address this reality serves to silence the core of victim needs and demands. Transitional justice, I contend, does just that in many of its contemporary applications. By narrowing the scope of post-conflict justice away from clear and urgent needs voiced by citizens, the process establishes a new moral order in transitioning states that excludes the possibility of transformative change and blocks structural reforms that would displace elites or hurt their interests.

I use the term ‘neoliberalising’ to describe the way transitional justice serves as a gatekeeper, limiting the scope of justice-seeking to a project compatible with the interests of national and global elites. For David Harvey, the absence of a moral obligation on the state to address the economic and social welfare of citizens is a core characteristic of neoliberal governance (2005). As seen, transitional justice is similarly blind to the economic and social dimensions that meaningful justice requires given the lived realities facing conflict victims and their
communities. In transitional justice, like in neoliberal politics, poverty is the individual
responsibility of the poor, meaning citizens have no right to be free from the suffering it brings
and no guarantee of assistance in meeting even basic survival needs (Brown 2015).

Neoliberalism is a governance approach that prioritizes personal freedoms and liberty, especially
in regards to free markets, free trade and private property rights. In defending freedom of the
markets, advocates insist the influence of the state in public life must be reduced. Under
neoliberal governance, free market principles determine institutional and legal reforms, thus
reordering social and political life according to competition-led efficiency. In this view, any
imperfect attribute of a free market economy, be it mass unemployment or soaring inflation, is
considered a sign of imperfect freedom in need of still greater liberalisation. Yet when it comes
to policy implementation, reforms necessary to ‘free’ the public sphere from government
interference require extensive new regulation and legislation. Thus, in practice, neoliberalism is
not characterised by diminishing the state so much as it is a reorientation of the role of the state
towards securing free markets and strengthening elite privilege in both the public and private
sphere (Tadjbakhsh, 2009).

In the post-Cold War global governance era, neoliberal principles shape peacebuilding and post-
conflict reconstruction operations. As pioneers of neoliberal economics during the height of the
Cold War, Milton Friedman and the Chicago Boys described military intervention and neoliberal
financial reforms as a joint mission in countries occupied by US forces (Klein 2008). With the
collapse of the Soviet Union, a wave of brutal civil wars broke out around the global. In
response to the shifted geopolitical order, earlier neoliberal securitization literature influenced
new conflict theories that identified high poverty rates and economic isolation as root causes of
civil war (OECD DAC 1995; Collier and Hoeffler 2002 & 2004; Pugh 2005; Suhrke and Buckmaster 2005). In this view, the plights of post-conflict societies are primarily understood as economic dilemmas, requiring an approach that coordinates peacekeeping with programs promoting economic growth, foreign investment and business success. Correspondingly, global governance institutions based in New York, Washington and Geneva began prescribing increased financial growth and expanding markets as requisites for peace and stability (Berdal and Malone 2000; Russet and O'Neal 2001; Friedman 2005; Barbara 2008). Pugh coined the term 'The New York Dissensus' to describe a policy platform, first appearing in a 1992 report from the UN Secretary-General, that folds 1989 Washington Consensus principles into the global peacebuilding mandate (Pugh 2005). In a related critique, Roland Paris titled this new mandate 'liberal peacebuilding' in reference to the underlining assumption that peace is achieved through a combination of democratization, freeing markets and increasing international cooperation (1997). Today peacebuilding missions align efforts to reinforce democratic systems, foster new civil society and reestablish rule of law, with programs that strengthen property rights, transform tax systems, and secure market reforms (United Nations 2006).

Contemporary peacebuilding thus contributes to the global spread of neoliberalism to countries undergoing major political and social transitions after war. I characterise contemporary peacebuilding as a *neoliberal* project because its mandate promotes liberal values – such as democracy, human rights and rule of law – but those values are bound within economic restructuring requirements defined by Washington Consensus principles.<fnref n="1" /> Within that wider

<footnote n="1">¹ Pieterse refers to an ‘augmented Washington Consensus’ as a term for the revised set of global governance principles devised following the failure of Structural Adjustment Program (SAP) era development. These principles are at the core of the contemporary peacebuilding model. The augmented Consensus promotes strong and effective governance institutions in parallel with opening markets, deregulation and foreign investment as key measures for</footnote>
mandate, the contemporary peacebuilding model includes transitional justice as the central
component of operations, deployed to coordinate post-conflict justice and governance reforms
(Annan 2004). In this role, transitional justice, advances a wider neoliberal reconstruction agenda
by keeping poverty and structural violence outside the scope of post-conflict justice and reform.
That said, my contention that transitional justice has a neoliberalising effect on post-conflict
environments goes beyond an omission to act in defense of economic and social justice.

My central claim in this dissertation is that transitional justice *advances* market-oriented and
elite-led governance reform in the aftermath of war or regime change through the establishment
of a moral order that legitimizes and upholds neoliberal governance. Neoliberalism is not merely
the prioritization of business interests over social and environmental needs and democratic
processes. It is a governance approach that reorients political institutions and social
arrangements such that business interests take precedence over citizens’ wellbeing (Brown
2015). It is not a new observation that former conflict and disaster zones are a source of
greenfield sites for neoliberal governance (Klein 2008). Investors see potential in post-war chaos
for market expansion, resource extraction and lucrative reconstruction contracts. Notably, this
happens in a context where national governing institutions lack the capacity to tax profits or
regulate industry (ibid). Yet rebuilding in alignment with business interests conflicts with the

managing sustainable development (Pieterse 1998). For instance, the 2003 World Bank report on a revised
Consensus concluded that ‘creating wealth depends greatly on a set of rules securing property rights, governing civil
and commercial behaviour, and limiting the power of the state’ (Ayers 2008). Despite the notable addition of social
and political dimension, economic liberalization remained central. Accordingly, the term ‘good governance’ refers
to a UN wide effort across its missions to promote increased accountability, local participation, sustainable growth
and strengthened rule of law. ‘Good governance’ refers both to building democratic institutions and a commitment
to strengthening property rights, trade regulation and liberalizing tax systems. Some important examples of the
approach appear in the UNDP Discussion Paper on Governance for Sustainable Development (United Nations 2014)
and the UNDP commentary on good governance and development (United Nations Development Programme 2011).
For additional examples see “Promoting good governance in public private partnerships” (United Nations Economic
Commission for Europe 2008) and “Putting Economic Governance at the Center of Peacebuilding” (Hamilton and
Wachs 2008). Also, see the World Bank overview page on governance and development (World Bank 2017).
priorities and needs of a population who have suffered terrible violence. For a neoliberal
rebuilding project to be viable to citizens as well as onlookers from the international community,
its advocates must somehow legitimize the logical jump between market-orient reconstruction
and the claim that these are the priorities of a liberal and democratic regime that is committed to
its citizens. Transitional justice institutions resolve that tension. By limiting the scope of justice,
transitional justice establishes a new moral order that does not interference with – indeed, it
supports and legitimizes – neoliberal governance. This moral order shapes policy and
legislation, but more importantly, it has the deeper societal impact of defining what kinds of
suffering and abuses are henceforth tolerated and intolerable in the political community. In other
words, transitional justice establishes a post-conflict moral order that limits state responsibility to
its most vulnerable citizens and justifies a lack of empathy amongst more fortunate citizens for
the suffering of others.

Throughout this dissertation I refer to ‘parameters’ established by transitional justice that align
justice-seeking and moral responsibility with neoliberal principles. I use this term because the
image of drawing a border around the potential reach of justice illustrates a function of the
transitional justice model usually hidden by the assumption that these institutions are neutral, if
not inherently benign. No transitional justice process can address every form of injustice
experienced during war or atrocity. That is a truism of working in post-conflict contexts. These
institutions must place some limit on the scope of justice-seeking as a practical necessity of their
operation. That limit establishes a parameter between justiciable and non-justiciable concerns.
This distinction, in turn, defines the requirements and limits of the new regime’s moral
obligation to address injustice suffered by its citizens. As such, that parameter may be
practically necessary, but it is never neutral: it defines which types of suffering and criminality
require justice, reform and repair, and which calls for justice will be overlooked or only addressed in piecemeal ways.

As a necessary function of its operation, transitional justice establishes a parameter of intolerable forms of injustice and injustice that is deemed unfortunate yet permissible. As seen in the testimony of ‘Affair 27’, the forms of injustice that are excluded by that parameter are the same concerns pushed outside the public sphere by neoliberal governance. The implication is that transitional justice legitimizes tolerance for the forms of suffering caused by structural violence and compounded by implementing market- and business-oriented governance reforms in a context of post-war deprivation and destruction. The further implication is that transitional justice also legitimizes certain forms of criminality. Namely, the criminality behind an oppressive and exploitative social and economic order, preserved to ensure the continued dominance of business and ruling elites, and to advance their interests in the post-conflict area.

## 1.2. Neoliberal Transitional Justice

Transitional justice became a ubiquitous part of contemporary peacebuilding operations because the approach demonstrably contributes to advancing accountability, ending cycles of violence, and promoting national reconciliation (Annan 2004). It is not a coincidence, however, that deploying transitional justice towards those ends is an approach to peacebuilding that gained prevalence in parallel with the rise of neoliberal global governance. Transitional justice is popular in the current era because the model does not merely strengthen human rights and democratic values, it strengthens the particular version of those values found in neoliberalism.
There are practical aspects of its current use that especially emphasize the neoliberalism of the transitional justice approach – most notably, its central role in contemporary peacebuilding operations. That said, the reason transitional justice aligns with and advances neoliberal governance is not an extraneous circumstance of the model’s current uses. Rather, the opposite is occurring. Transitional justice is so prevalent in the current global governance climate because its neoliberalising effect is inbuilt to the model, thus laying the moral foundation on which neoliberal peacebuilding is built.

### 1.2.1. The Human Rights Critique

Human rights violations are the basic units from which a transitional justice process is built. A national transitional justice process comprises a collection of ad hoc post-conflict institutions, selected from a list of possible initiatives sometimes referred to as the ‘mechanisms’ or ‘pillars’ of transitional justice. This list includes truth commissions, reparations programs, criminal prosecutions, memorialization projects and various types of vetting or institutional reforms. Each institution plays a role in documenting and responding to specific incidents of human rights violations. In contemporary examples, numerous mechanisms are adopted simultaneously, with a truth commission usually serving as the central coordinating body (ICTJ 2013). This is because truth commission investigations are generally the basis for reparation programs and criminal prosecutions; their recommendations are the source of institutional and legal reforms; and memorialization, peace education programs and community reconciliation projects are often
incorporated into truth commission outreach programs.<fnref n="2" /> In an ideal scenario, the various coordinated mechanisms of a transitional justice process offer victims and the wider citizenry a broad form of justice-seeking that addresses past injustice while also helping rebuild the governing institutions and moral fabric of a post-conflict state.

Thus, at its most essential, a truth commission is an institution built to pressure liberal democratic reforms and advance accountability efforts by documenting and publishing testimony of grave and systematic human rights violations. Truth commissions operate on the assumption that recording many individual incidents of human rights violations can offer a window into widespread patterns of abuse and thus form the basis for a holistic kind of justice that includes repair, redress and reform. The testimony-based format of a truth commission was developed under the assumption that many accounts documenting the bare facts of human rights abuses will combine to tell a wider truth about the political and social circumstances surrounding those incidents. In theory, the sum of many individual incidents creates a comprehensive account of the abuses committed by a violent or oppressive regime.

In practice, however, the approach has a different effect. The version of ‘truth’ found by compiling many incidents of human right violations provides only a narrow window into the past. A truth commission tells the story of who wielded weapons and who succumbed to their

<footnote n="2">² Commission mandates usually include some language on the actions expected or required from government to implement its findings and recommendations, although it is generally considered undemocratic for an independent investigative body to legally force its recommendations onto the future state (ICTJ 2013). There are also practical reasons why this is unadvised by most TJ practitioners. The Liberian TRC, for instance, was established by legislation that bound its future recommendations into law. This ultimately produced a legitimacy crisis for the Commission as well as new government. Liberian President and Nobel Peace Prize recipient Ellen Johnson Sirleaf and many members of her government were listed amongst individuals to be vetted from public office, prompting President Sirleaf and her government to overrule the recommendations of the report and discredit the commission process.</footnote>
blows – moments in which direct perpetrators abused identified victims. It is a historic record
that rarely exposes exploitation networks, complex motivations and other political realities
surrounding specific acts of violence. The fundamental, constituting role of human rights
violations in the transitional justice model makes transitional justice a powerful tool for
advancing political and physical human rights however that same approach has ensured
individual, timebound experiences are the primary focus of post-conflict justice-seeking.

Transitional justice is demonstrably ill-suited to addressing experiences that are not easily
articulated as individual human rights violations (Miller 2008). This reflects a wider pattern,
documented in recent decades, of human rights activism being at once a powerful tool for
drawing attention to injustice while simultaneously limiting the transformative potential of social
movements founded in this tradition.<fnref n="3" /> French philosopher Alain Badiou is especially influential
in his critique of human rights and the activist movements adopting this approach. Human rights,
in his view, reflect an agreement from powerful authorities to not permit the worst possible
abuses, so long as the basic tenets of liberal capitalism are maintained. Human rights do not help
us envision a world transformed for the better nor do they build towards radical change (Badiou

<footnote n="3">³ See Sikkink 2011 on the potential of a human rights framework to bring social justice. Contrasting this view, there is a large body of literature on the limitations of the human rights approach. As a very brief summary, these critiques tend to focus either on human rights as a threat to culture and community cohesion, or – taking a more political lens – focus on the tendency for human rights to weaken or usurp revolutionary struggles. Amongst the best-known cultural critiques, Esteva and Prakash (1998) warn that human rights threaten cultural diversity because they demand that a single, liberal democratic, vision of good society is universally adopted. Authors argue that in many non-Western contexts this damages community life and cohesiveness by advancing individuals rights over the cultural fabric of community-based societies (see Charles Taylor 1992). On a related point, Spivak (1988) sees the human rights movement and its claims to intervene in foreign countries in defense of vulnerable groups as a direct evolution of the civilizing discourse used in the colonial era to justify domination (on this point, also see Inayatullah and Blaney 2012). Political critiques emphasize that the human rights approach depoliticizes injustice and dampens radical efforts for political change (Badiou, 2002). In a related critique, Samuel Moyn (2012) claims that the rise of individual human rights has come at the cost of broader reaching social movements such as economic and structural injustice (also see Harri Englund 2006). These critiques speak to a tendency for human rights to help address basic individual needs while simultaneously preserving the status quo against the demands of broader political struggles.</footnote>
1998 and 2001).<fnref n="4" /> In other words, human rights may help prevent the very worst from occurring, but they have a damping effect on revolutionary struggles demanding transformative change. They do not reimagine social and economic life, instead making the much more limited demand of ensuring individuals are free from the most heinous forms of abuse. It is hence not an accident that the spread of human rights activism accompanied the end of the Cold War and the rise of the global capitalism. This parallel timeline is noted by David Harvey who contends that the liberal insistence upon individuals as the foundational element in political and economic life opened the door to human rights activism. As a result, contemporary social movements rarely look beyond the individual level, rendering today's activist tradition poorly suited to mounting larger structural critiques (Harvey 2005, 78).

The same limitations that the human rights approach has placed on contemporary social movements are also seen in the transitional justice model. As a lens for understanding the past and shaping the future, human rights violations document a collection of individual, timebound experiences. Yet behind these specific incidents there are long legacies of collective suffering and structural injustice that remain largely unseen. This is especially problematic given the individuals most vulnerable to human rights violations – and who suffer the consequences most severely in the aftermath – come from groups put at risk by oppression and economic hardship (Sambanis and Elbadawi 2000; Goodhand 2001; Merry 2011). We have already established that the pain of a human rights violation is not limited to the time of its occurrence nor to the direct target of that abuse. This is particularly true where poverty and inequality reinforce physical,

<footnote n="4">⁴ This critique of human rights appears in a number of Badiou's works, however the ideas detailed above appear in Badiou, Alain (2001) *Ethics: An Essay on the Understanding of Evil* (London: Verso). My summary of the argument is informed by his explanation of the piece in a 2001 interview by Cox, Christoph and Whalen, Molly "On Evil: An Interview with Alain Badiou."</footnote>
material and emotional damages. That complexity is hidden by the purported universalism of human rights. The claim these rights are inalienable and equally possessed by all humans also implies it is equally unjust to all humans when those rights are violated. To imagine that diverse victims of terrible abuse all share a similar, core experience depoliticizes how and why violence occurs. It also reflects a privileged understanding of violence in which structural and economic injustice are peripheral to some imagined core constituting experience of victimhood.

This dynamic was apparent in the South African Truth and Reconciliation Commission (TRC) where, in hopes of stemming future conflict, the commission intentionally depoliticized its operations by viewing the past through the framework of universal human rights. By focusing on human rights as a common denominator amongst all victims, the TRC pushed the context surrounding abuses into the background. The human rights framework adopted by the South African TRC allowed Commissioners to demonstrate equal concern for like experiences regardless of the race or politics of individuals involved. The commission focused on creating detailed and accurate accounts of specific human rights violations, opting not to see these experiences through the politicizing lens of the daily oppression, poverty and humiliation perpetrated by the Apartheid regime against the black majority (Mamdani, 2002).<fnref n="5" /> In doing so, the commission invited outrage from some civil society groups by implying there was some

<footnote n="5">⁵ Mamdani (2002) gives the critical perspective presented here. For a discussion of the intentions and operations of the SA TRC, see Boraine (2000). As former TRC Head, Alex Boraine was known to reiterate a version of Mamdani’s critique in public statements, but presenting it as a positive feature of the TRC. When speaking retrospectively about the design and methods of the truth commission, Boraine emphasized, as a point of pride, that both the National Party and the ANC took the TRC to court. Most notably, the family of Steven Biko brought the amnesty provision before the South African Constitutional Court. In this case, the court upheld the legally of the amnesty process (AZAPO v. President of the RSA, 1996). Boraine considered anger from both sides a sign of the objective and fact-driven nature of the Commission. This reflection comes from discussions by the author with G. Simpson, founder of the Centre for the Study of Violence and Reconciliation.</footnote>
degree of moral equivalency between the actions of anti-apartheid activists and a white
supremacist regime committed to violently holding power.<fnref n="6" />

The truth commission's objectivity was a deliberate decision, intended to help facilitate a peaceful transition to inclusive democracy (Tutu 1999). It communicated to the still powerful white minority that the new regime was committed to moving on in a spirit of reconciliation, and that this spirit superseded the demands for more radical action from segments of the majority population. The TRC was able to communicate that reconciliatory message because human rights serve as a guarantee to all sides that each individual testimony will be assessed with neutrality and objectivity. In this sense, a human rights framework creates the impression of a common denominator linking vastly different experiences of wrongdoing. The value of neutrality and objectivity as a peacebuilding tool is evident in the South African example. The political

<footnote n="6">⁶ These feelings are expressed in studies conducted by the South African Centre for the Study of Violence and Reconciliation with victims at the time of the TRC (CSVR 2006). The moral equivocating problem caused by the commission's commitment to objectivity and legality is also visible in the anger shown for the amnesty process by victims (for example, see the court case opened by Steven Biko's family). The tension caused by this equivocating is particularly well-demonstrated by the unrepentant attitude of some black perpetrators appearing before the commission during amnesty hearings. Their words and their demeanor communicate that their actions were the work of freedom fighters, not criminals equivalent to the former regime and its security apparatus. For example, see the amnesty hearing for the three men who stabbed and stoned to death the American graduate Amy Biehl in a township outside Cape Town. A clip of the hearing can be seen in "Truth Commission Special Report: Episode 56 Part 3", available on Youtube at https://www.youtube.com/watch?v=N4xOZFzwr3w. Biehl's family came to South Africa to participate in the amnesty hearing and expressed forgiveness as a step towards the greater cause of reconciliation. The young men applying for amnesty in her case make it clear they are in no way equal to the white police officers who sat in their same seats. They explain they murdered Biehl as activists in a struggle for freedom. The closest they come to apology is expressing regret for killing the wrong sort of white person, with one explaining: "I realised we made a mistake, I took part in killing someone we could have used to achieve our ends". Winnie Mandela famously refused to play the role of 'perpetrator' for the sake of the TRC in her public hearings. Winnie Mandela was accused by numerous witnesses of direct responsibility for multiple cases of torture and murder, the most famous one being the brutal murder and torture of the fourteen-year old UDF member Stompie Sepei. In her opening statements, Winnie Mandela makes it clear she will not ask for amnesty because she does not need it. She plainly says she has done nothing wrong. Following days of testimony from victims and witnesses, the closest Mandela comes to an apology is repeating Tutu's words after he publicly implores her to show remorse. She finally responded "...for that part of those painful years when things went horribly wrong and we were aware of the fact that there were factors that led to that, for that I am deeply sorry." For a further discussion on Winnie Mandela's testimony and the moral tensions it represented in transitional South Africa, see the account of her hearings by TRC journalist Antjie Krog in 'Country of my Skull' (Krog 2000).</footnote>
negotiations that culminated in the TRC ended a civil conflict that saw over 20,000 deaths over the preceding decade (Hamber 1999). Whatever criticisms one might mount against the TRC, facilitating a non-military end to that conflict remains a remarkable achievement. It is nevertheless also important to identify the limitations of the approach, especially when applied to the deeply political task of doing justice for a terrible past.

Neutrality and objectivity are forms of moral equivocating that depoliticize the historic record, allowing the more complex motivations for and consequences of violent conflict to fade into the background. When looking through an objective lens, it is easy to lose sight of the very different ways people from separate social classes and life situations experience violence and oppression. This translates into a tendency for transitional justice to favour the status quo when it comes time to recommend reforms and seek resolution to past injustice. The problem with this approach is evident in the South African example. The South African TRC transfixed the country and, for that matter, the world more than any similar transitional justice process before or since. It conducted painstaking work detailing tens of thousands of accounts from victims and perpetrators of human rights violations, as they described pain and cruelty, and sometimes also apology and forgiveness. With those accounts as the basis for building a new era, the TRC reported on the past as a long series of individual experiences of political and physical human rights violations. Economic deprivation and structural violence were at the heart of Apartheid, and the atrocities of that regime were largely motivated by a desire amongst its leadership to maintain racial inequality and white dominance in the economic and public sphere.<fnref n="7" /> Yet the

<footnote n="7">⁷ In its most resent assessment released in 2015, the World Bank assigned South Africa a GINI index of 63, making it the world's most unequal country, according to this indicator. At that time, South Africa had a population of 55 million with 12.8 million living below the poverty line and representing 19.2% of the population. Although there was significant improvement from a highwater mark of 16 million in 2000, poverty rates are once again rising. On equity indicators, data gathered by the World Bank shows that from 1990-2017, the GDP has grown nearly five-fold</footnote>
South African transitional justice process responded to a long history of racial oppression with a redress and reform agenda that largely preserved the economic and social status quo. The result was a post-conflict reform and reconstruction agenda that launched the country into new cycles of violence, perpetuated by the continuation of a deeply unjust status quo.

### 1.2.2. The Economic and Social Rights Critique

My critique of the SA TRC echoes Mahmood Mamdani’s seminal response to the transitional justice process in South Africa, published soon after the release of the TRC report. His critique emphasized how the TRC’s focus on overt incidents of abuse masked the daily indignities and social injustices at the core of Apartheid (Mamdani, 2002). The piece first articulated a now common criticism of transitional justice. In order to receive assistance and recognition, critics say, transitional justice mechanisms require victims to make claims of political or physical human rights violations and, in doing so, preclude structural violence, oppression and deprivation as violations meriting justice (Duffield 2001; Laplante 2007, 2008; McGovern and Lundy, 2008; Mani 2008; Miller 2008; McAdams, 2001; Nesiah 2016). In other words, violent conflict and structural oppression are deeply intertwined yet transitional justice targets only the

<footnote>(from 111.9 billion USD to 510.9 billion USD) and per capita income grew from 9900 PPP USD to 12,889 PPP USD. However, for the bottom four-fifth of those on an income distribution scale, there has been no significant growth in their share of national income since 1990. The only notable difference in income distribution is a shrinking middle and lower middle class, and a growing share of wealth held in the top fifth of the income distribution scale. For the bottom three-fifth of the population, their collective share of the economy has actually shrunk from 17.5% to 15.4% since the transition to democracy (Sulla 2019).</footnote>
most overt examples of violation, as though such incidents have a tangible reality that exists independent from the context where they took place.

Structural violence, as defined by Uvin, is a combination of high inequality, social exclusion, and humiliation (Uvin 2004). In the post-conflict and post-dictatorship contexts where transitional justice operates, this manifests as unequal access to public services and resources, exploitation of vulnerable groups by those in power, and exclusion of minority or marginal groups from civic life and a decent livelihood. Elites preserve this status quo by using their privilege to consolidate opportunities and resources in the hands of a wealthier and more powerful few. Yet, to quote Vasuki Nesiah’s words, “challenging impunity has often been equated with individualized criminal prosecutions rather than efforts to contest the abuse of power enabled by structural injustice” (Nesiah 2016). Transitional justice, critics contend, largely ignores that wider context, approaching victimhood as a matter of individual and timebound suffering, delinked from its roots in structural inequality and oppression.

Victims do not experience violence as a distinct moment that happened in the past, and it misrepresents their experiences and needs to frame their accounts in this way. For a widow unable to provide sufficient food and shelter to her children following the wartime death of the family breadwinner, his death is a no less salient form of suffering than the many ways this tragedy manifests in her daily life. This point was illustrated in the moving account of a widow and mother of five I interviewed at a small victim centre in a ghetto outside Abidjan.<fnref n="8" /> When he was alive, her husband made a modest living as a repairman. Now her only income comes from

<footnote n="8">⁸ Anonymous widow in interview with author, Abobo, Côte d'Ivoire, June 2015.</footnote>
begging and sex work. Her children, she said, stood outside the door of the school every day trying to overhear the lessons because she was so behind on school fees, they were no longer allowed to enter. In her account, she made no distinction between the pain of losing her husband and the pain she felt watching her children go to sleep hungry every night in a leaking shelter or suffering from illnesses that would be easily treated had she money for a doctor. What is more, her account is not unique. Stories like this are common in every post-conflict context I have worked.<fnref n="9" />

Whatever good intentions may motivate transitional justice efforts, there is a growing body of research pointing to the fact that these initiatives are misaligned with the needs and expectations of victims (Hamber, Nageng and O'Malley, 2000; Mani, 2008; McGovern and Lundy 2008; McEvoy 2008; Mendeloff, 2004; Nesiah 2016). It is not only scholars voicing this concern. Many practitioners also acknowledge the exclusion of economic and social injustice is a major shortcoming in their work. This is evident in the increased attention transitional justice initiatives have dedicated to these matters in recent years.<fnref n="10" /> Most national-scale transitional justice programs launched since the new millennium included features like a designated truth

<footnote n="9">⁹ I worked on long term assignments as an international advisor to truth commissions in Côte d'Ivoire and The Gambia as well as providing technical advice to transitional justice institutions and victims associations in Nepal, Canada, Libya, Syria and to members of the UN Permanent Forum on Indigenous Rights.</footnote>

<footnote n="10">¹⁰ The OHCHR Report “Transitional Justice and Economic, Social and Cultural Rights” gives a practical overview of the increasing role granted economic and social rights in transitional justice mechanisms over the field’s history (OHCHR 2014). More recently, the United Nations and International Centre for Transitional Justice joint working group on transitional justice and the SDG+ responds to the lack of attention given to economic and social crimes in transitional justice. The group represents a new strategic direction for global UN work on TJ, now joining development and post-conflict justice-seeking as linked pursuits at the United Nations (Working Group on Transitional Justice and SDG+, 2019). As a specific example of an increased concern with economic justice in transitional justice, Colombia enacted a Victims’ Reparations and Land Restitution Law in 2011 even before planning its truth commission (Correa 2015). Likewise, the mandate of the Truth, Justice and Reconciliation Commission in the Philippines included root causes of marginalization, looking at displacement of indigenous communities and land grabs of their traditional land (Colina 2018).</footnote>
commission report chapter on marginalized communities, or special hearings on financial crimes and corruption. Though all timely efforts to address a clear deficiency in the field, these adaptions fall far short of providing substantive solutions to economic and social injustice.<fnref n="11" /> The standard transitional justice toolkit includes investigations, limited trials, public hearings, reporting, possibly reparations for direct victims, and often memorialization or community reconciliation initiatives. These are appropriate tools if we consider the aim of transitional justice to be some combination of fact-finding and reconciliation. The approach inevitably produces piecemeal results when applied to the task of addressing economic and structural injustice, particularly given the scale, gravity and complexity of these concerns in a post-conflict context.

More than anything, recent efforts to address structural injustice with the standard transitional justice 'tool kit' have illustrated how ill-suited the model is to addressing deep-rooted social and economic injustice. Consider, for example, the words of the Head Investigator at the Sierra Leone TRC. He described their work on economic crimes as follows,

> "Of course, we felt these stories were important, that is why we included the special chapter and hearings. But the fact is, no one read that chapter and those were our least popular public hearings."

Without denying the importance of economic and social justice to Sierra Leonean conflict victims, the investigator explained the unpopularity of special procedures on economic crimes as

<footnote n="11">¹¹ As an illustrative example of an effort to address economic injustice with transitional justice mechanisms, ICTJ senior expert on reparations, Ruben Carranza, provided me with footage from the collective reparations program in Peru. One initiative built a fish pond in a Peruvian peasant community where state forces massacred more than thirty people. The pond is presented as a success story in the film, without addressing the glaring question of what logic weighs a food-generating development project as compensation for a massacre.</footnote>
a matter of public disinterest. These issues, he concluded, are simply not as captivating as more
visible and overt human rights violations. Perhaps there is an alternative explanation. If
transitional justice initiatives contributed in substantive ways to transforming inequality and
economic deprivation, the commission would surely attract public attention. Drawing public
interest would be no issue if special hearings were replaced with a wealth redistribution program,
restructuring the economy, or serious consequences for the elites both in-country and abroad who
profited from the war.<fnref n="12" />

Such a suggestion will inevitably be met with the response that justice simply cannot mean
transforming every victim's life, particularly in a case like this where there are untold thousands
of victims and millions of others affected. The core purpose of adopting a transitional justice
approach is to do something when the scale of brutality and injustice is so vast, that nothing
seems possible. Transitional justice is a limited approach; it simply cannot fix every problem and
address every need. A transitional justice process is comprised of ad hoc and temporary quasi-
judicial institutions deployed in a tense and politicized environment. These institutions do not
wield the power to implement major institutional reforms, let alone orchestrate something as

<footnote n="12">¹² Reparations were made available to victims of who suffered more than 50% physical incapacitation or sexual violence. For most victims, that assistance was piecemeal, at best, and it did not even reach all eligible recipients. The National Commission for Social Action (NACSA), the Sierra Leonean state entity responsible for reparations, received $ 3 million US from the United Nations Peacebuilding Fund and an additional $ 5.5 million US from donors over the operational period of 2008-2014. Although the truth commission foresaw reparations in the form of pensions and social services for victims, most victims received a one-time interim relief payment of 100$ US. Select cases deemed most severe also received medical operations, vocational training and micro-grants (Ottendorfer 2014). Weaknesses in the registration process and implementation meant funds were unevenly distributed across regions, with some rural areas most affected by the war overlooked. Also, funds were often distributed by chiefs or local officials along patrimonial lines. By consequence, these dynamics subjected victims to the same inequalities and power relations at the root of the conflict (ibid). The NACSA 2017 annual report - the most recent available on the website - recognises that the program has still not reached all eligible victims (National Commission for Social Action NaCSA 2017). The NACSA says reparations were delayed due to the government's focus on reforming the military, police and justice sectors. Indeed, in contrast to the experience of many victims, a benefits program and demobilisation payments were available to ex-combatants (IRIN 2009).</footnote>
radical as large-scale wealth redistribution or transformative social reforms. Furthermore, it is
irresponsible and unfair to raise victim expectations by writing impossibly wide mandates only
to disappoint later when those promises go unfulfilled.

There are recent cases in which the architects of a transitional justice project attempted to adopt a transformative mandate. The best known of these examples is the Kenyan Truth Justice and Reconciliation Commission. The Kenyan TJRC adopted an extensive mandate including the promise of land reforms and mechanisms to address high-level corruption. The commission made little progress and was ultimately highjacked by political interests, with expert observers blaming its overburdened and unrealistic mandate.<fnref n="13" /> As the Kenyan case illustrates, transitional justice institutions are too limited to deliver tangible results on the politically volatile and enormous task of correcting longstanding structural injustice.

Since the potential for transitional justice to significantly advance structural and economic injustice is demonstratively limited, many practitioners conclude these matters are better left off the agenda. Transitional justice, they argue, should focus on advancing accountability and reparations for political and physical human rights violations and, where possible, contribute

<footnote n="13">¹³ Kenya is one of the first countries to include investigating large scale corruption and land expropriation in a truth commission. The TJRC's initial two-year mandate was extended three times. This was due to a combination of an overburdened commission and political interference permitted by the Chairmen, Bethuel Kiplagat. With a mandate covering all manner of economic and political crimes, and an investigation period going back to 1895, the commission was crippled by the scope of its project. The final report is criticized for giving piecemeal recommendations that are difficult to link with practical programs or reforms (Ndungú 2014). The Land Chapter was one of the most controversial in the report. Some of the TJRC commissioners were persuaded to give an advanced copy of the report to the president and, under pressure from his office, agreed to alter paragraphs that alleged criminal activity by President Kenyatta's family (Ndungú 2014). These commissioners also agreed to delay the release of report until after the 2013 elections. Further undermining the TJRC, the National Assembly amended the Truth, Justice and Reconciliation Act to only require that the government 'consider' recommendations rather than be obliged to implement. As a follow-up to the TJRC, the anti-corruption mechanism adopted by the Kenyatta government is an elite-led effort, designed to leave patronage systems intact and ensure impunity for those in power (Carranza and Ndonga 2019). Ronald Slye, a former TJRC commissioner critical of the commission's outcome, commented that the government has "only addressed corruption rhetorically or selectively, through what is perceived as prosecution of individuals who are not in favor of the current leadership" (ibid).</footnote>
some small steps towards wider structural reform, perhaps through truth commission report recommendations or through programs like security sector vetting. After all, transitional justice was designed to achieve a particular set of aims, and we undermine our ability to deliver even these more limited goals by extending the transitional justice mandate to an unbounded list of structural and economic injustice concerns.<fnref n="14" />

### 1.2.3. Where do we go from here?

The scholars and practitioners advocating a limited yet achievable transitional justice mandate offer a well-reasoned conclusion, and one that this difficult to counter. I would argue, however, that this position is informed by a narrow view of the problem. Their rationale is based on the common assumption in liberal discourse that any effort to advance human rights and liberal values is inherently worthwhile.<fnref n="15" /> Such thinking suggests that, since advancing rights and freedoms is never wrong, the only relevant discussions in the field of transitional justice are about its potential positive impacts. As the argument goes, since there is demonstrably little that can be achieved on economic and social injustice with the transitional justice approach, there is

<footnote n="14">¹⁴ For examples in the TJ literature by technical experts recommending a limited mandate, see ICTJ's practitioners guide to writing TRC mandates (Gonzalez 2013). Also, Albing-Lackey cautions against including corruption in truth commission mandates, noting it is not a human right under international law (Albin-Lackey 2014). Lars Waldorf notes TJ already creates high expectations amongst victims and thus risks creating more disappointment when it oversteps the already stretched limits of the model, explaining there are simply not sufficient time, resources or capacities to expand the project to broader issues of economic and social rights (Waldorf 2012).</footnote>

<footnote n="15">¹⁵ As an important early contribution to critical literature on liberalism, see Hannah Arendt's *Origins of Totalitarianism* (1951) regarding the (not-automatic) conditions under which a person gains the 'right to have rights.' Also see Micheal Walzer's (1984) 'Liberalism and the Art of Separation', in which he describes the role of liberalism in creating borders around social and political life, separating off public from private spheres. Amongst many others contributors, influential critiques of a post-Cold War 'liberal consensus' include Étienne Balibar (2009) and Jacques Rancière (1999).</footnote>
nothing more to say on the matter. Countering that position, I contend the topic holds great
relevance precisely *because* the model is so poorly suited to addressing these concerns.

Regardless of whether there is a solution available within transitional justice, the model's failure
to address structural injustice is not neutral. That failure has consequences on victims' lives and
on the potential of their communities to recover from war by shaping governance and public
institutions in the post-conflict era. Irrespective of whether transitional justice could advance
economic rights or resolve structural violence, leaving these matters unaddressed is, itself,
adopting a stance on the issues, and one with important impacts for transitioning societies.

Transitional justice does not operate in a sphere separate from economic crimes and structural
violence; oppression and poverty reinforce past abuses, extend suffering and create new
vulnerabilities to abuse and repression. Omitting these matters from post-conflict justice-
seeking establishes a new regime where overt acts of violence are indeed reprehensible, but other
more insidious forms of injustice are implicitly tolerated. As a result, the 'justice' promised by
transitional justice safeguards the economic sphere from restructuring and ignores demands for
substantive change expressed by victims' groups and other marginalized communities. As seen
in the preceding pages, that limited vision of justice and the resultant tendency of transitional
justice to safeguard the status quo is built into the transitional justice model itself. The
transitional justice approach is based on a commitment to liberal principles such as respect for
human rights and dignities, yet, as we have seen, the model places inbuilt limits to those
principles. Paralleling neoliberal governance, transitional justice advances liberal values but
only to the point those values might interfere with economic interests or threaten an established
social hierarchy. When deployed as a state-building tool, meant to reestablish moral order, the
vision of justice and morality advanced by transitional justice serves to reinforce neoliberal
governance and, more importantly, gives legitimacy to this reordering of society.

## 1.3. Case Study: Côte d'Ivoire

After a decade of civil war, the new Ivorian regime implemented a reconstruction agenda characterised by sweeping neoliberal reforms and an extensive transitional justice process. That transitional justice process is best known for launching the ICC trial of former president Laurent Gbagbo: the world's first international criminal trial of a head of state for crimes against humanity. Ivorian transitional justice further included a lengthy series of domestic special trials, a national truth commission, a large-scale demobilisation program and the promise, still unfulfilled, of a national reparations program. That national process of justice-seeking and democratic renewal accompanied a neoliberal reform agenda praised in the global business community. "Never before has an African country been so well sold to international investors as Côte d'Ivoire in the last five years", reported one business consulting firm (Gweth 2017). That success was equally celebrated in the international finance community. At the end of Alassane Ouattara's first presidential term, the IMF listed Côte d'Ivoire as one of the 'World's Ten Best Reformers', following a jump of 10 spots in the World Bank's 'Doing Business' country index (International Monetary Fund 2016). A combination of political stability, justice-seeking and economic growth far beyond projected figures earned President Ouattara's management of the transition rare praise in an era when most civil wars reignite within a decade of signing peace accords. When Côte d'Ivoire's UN peacebuilding mission finally ended in 2017, the UN Secretary General finished his statement by recommitting UN support to the Ouattara
government, citing “the implementation of outstanding reform activities with a view to ensuring that the hard-won peace can be sustained and the country and its people will continue to progress and thrive” (Office of UN Secretary-General 2017).

High praise from the world's most powerful global governance institutions speaks to why Côte d'Ivoire is an illustrative case study of transitional justice's neoliberalising effects. That effect is more consequential than the mere alignment of transitional justice and neoliberal reforms on the national reconstruction agenda. The more important impact of that effect is the fact that powerful global actors deem Côte d'Ivoire's reconstruction as a success story. In the international media and in UN documents, Côte d'Ivoire's transition is characterised as a liberal democratic success where justice was done for the past while simultaneously attracting vast foreign investments and regrowing the business sector. Côte d'Ivoire's reconstruction was indeed a success story for the Ivorian elite, whose kleptocratic rule was at the root of the conflict in the first place. It was also a success for domestic and foreign business owners who profited from the war and again from the sell-off of national resources and industries in its aftermath. The view was quite different, however, from the lower rungs of the social hierarchy.

As the coming chapters detail, neoliberalisation and transitional justice – the dual priorities of national reconstruction — combined into a reconstruction agenda that negated the socio-economic origins of the war and legitimized aggressively market-oriented governance as just and good. Moreover, it achieved this while avoiding accountability for the ruling elite and punishing enemies of free-market capitalism on the international stage in a one-sided judicial process. Told in these terms, the Ivorian ‘success’ appears to be a cynical story of foreign and national elites profiting out of conflict. Yet here is the dynamic that makes this such an illustrative case of the neoliberalising effect of transitional justice: the Ivorian reconstruction agenda was *not* merely a
business-oriented economic growth plan with a cynical pretense of justice to hide elite profit-seeking. Post-conflict justice was extensive and supported by massive national and global investments of time and resources. Rather than simply *hiding* the wrongdoing of elites or the suffering of low-income communities, transitional justice *rewrote* the moral script defining what constitutes good governance and a just society. That work redefining moral values to align with the priorities of neoliberal governance established a new moral order in postwar Côte d'Ivoire where aggressive neoliberal reforms could be pursued in the name of justice and democratic transition.

### 1.3.1. Research Methods

I lived in Abidjan, Côte d'Ivoire for a year and a half prior to conducting my field work. During this time, I worked for an international organization as a technical consultant on two separate contracts supporting the TRRC truth commission as well as civil society groups engaged in the transitional justice process. In this role, I worked closely with victims' associations and with the truth commission statement-taking team (a group who, in their regular jobs, worked for community centers, local NGOs and social services as psychologists, nurses, social workers and in other similar roles). My work focused on involving children and youth in the transitional justice process, meaning I also built a large network of youth activists from both sides of the political spectrum. At the end of my contract, I remained in Côte d'Ivoire for nearly one year of fieldwork. During that time, I conducted approximately 75 interviews and focus groups (see Appendix 1 for a detailed list). To complete this research, I relied heavily on the network I built of victims' leaders, social workers and youth activists both as participants and to help identify other potential interviewees. My fieldwork was divided between time in Abidjan and trips
inland to visit local community centres. On my trips inland, I did two tours of the centre-west
region, one of the south-west, and one crossing the central and northern regions.

During the course of my fieldwork I interviewed direct victims of the conflict as well as persons
from other vulnerable groups who could potentially be put at risk by participating in my
research. Lee Ann Fujii's work on ethical considerations in political science research
emphasizes the need to think broadly about the potential risks a specific context might pose or a
particular individual might face as a research participant (Fujii 2012). As a framework to help
guide those ethical considerations, Fujii suggests thinking through the dilemmas of power
difference, the dilemmas of proximity and the dilemmas of publication involved in field research
(ibid). I will briefly address these points as they relate to the Ivorian postwar context and to
participants in my field research. Please refer to Appendix 1 for additional information on steps
taken to protect research participants from potential harm.

Dilemmas of power difference were a major concern in my fieldwork as many of those
interviewed knew me from my previous job where I represented a powerful international
organisation dedicated to victim support. Although I was careful to explain before and during
interviews that my doctoral research was not related to my former job, the expectation from
some interviewees that benefits might come from participating was understandable. Managing
that expectation was thus an ongoing challenge. More concerning still were the 'dilemmas of
proximity'. Some research participants faced possible social and, in some extreme cases,
potentially also physical risks by affiliating with a foreign researcher. Conflict victims face social
stigma in this context, particularly when those victims are female. Moreover, very few
perpetrators were jailed at the end of the conflict and some were even granted positions in the
security services. It is therefore possible that some perpetrators continue to keep an eye on
people they once victimized. By consequence, there is a possibility that being seen with a foreign researcher could have serious consequences for conflict victims.

To mitigate the risks posed by dilemmas of power and proximity in my field work, I conducted most interviews with people who had an existing public profile as an activist or official: for example, NGO staff, victim leaders, or government employees. Victims' accounts were very important to my research and I interviewed approximately twenty direct victims. Note that in all but a handful of cases detailed below, these interviews were with the leaders of local victim associations. Interviewing victims' leaders meant I met with people who regularly spoke in public about their experiences. These were also people who regularly engaged with foreigners, with the state and with the media. For these individuals, participating in my research posed little new risk of social stigma, of threats from perpetrators, or of psychological stress. This choice of interviewee had some downsides. For example, I interviewed significantly more men than women. That said, given I was primarily seeking information on experiences dealing with transitional justice institutions, the victims' leaders were well-placed to share this information.

I had the opportunity to interview some individuals from more vulnerable groups thanks to my prior association with local NGOs and community centres. Those I refer to as 'more vulnerable' include former child combatants, female conflict victims, persons who were minors during the conflict, and sex workers. For interviews with more vulnerable individuals, I relied heavily on the assistance of social workers or other psychosocial support persons. These interviews were held as focus group discussions, as per the stated preferences of those involved, and accompanied by a psychosocial support worker with an established relationship to the participants. Also, I did not reach out to these more vulnerable individuals directly. Support workers identified potential participants who were most likely to enjoy being interviewed and
who were unlikely to experience stress or harm by participating (i.e. such as social stigma or
pressure from family members). Asking support workers to assist me also meant the participants
had access to a reliable and trusted person should any concerns arise after the interview that
required follow up.

As stated above, a majority of those interviewed were victims' leaders and professionals working
in the human rights sector. Regarding the dilemmas of publishing information shared during
interviews, these actors face a small but nonetheless real risk of harm if identified. Reprisal
could, for instance, become a concern if the political situation in Côte d'Ivoire worsens and
criticisms that were once tolerated become dangerous. A minority of interviewees are from
vulnerable groups and could face significant social, physical or psychological harms if identified.
Recognizing the potential risks to both these groups of publishing identifying information, the
names and other identifying details of interviewees are changed throughout this dissertation. I
have provided only the minimum details needed to present a coherent account: details such as a
hometown or general job title. As an exception to this rule, I have provided the names and job
titles of well-known public figures who consented to being interviewed in that capacity. Please
find further details on confidentiality and consent procedures in Appendix 1.

### 1.3.2. Neoliberal Transitional Justice in Côte d'Ivoire

In Côte d'Ivoire transitional justice served the dual function of reinforcing neoliberal reforms
while also legitimizing this reordering of governance and social norms as just and democratic.
The Ivorian transitional justice process established an ideological foundation for Alassane
Ouattara's expansive neoliberal reform agenda while advancing a discourse domestically and abroad about the liberal and democratic nature of the new regime. Côte d'Ivoire became one of Africa's fastest growing economies and the continent's most attractive foreign investment markets during President Ouattara's first term (Ananou 2015). During that period, inequality grew apace with the country's rapid postwar industrialization and privatization. Due to a massive increase in the cost of living and the dismantling of public services, social development indicators in Côte d'Ivoire match states with a fraction of its industrial and economic power (World Bank 2015).<fnref n="16" /> Approximately half the population now lives below the extreme poverty line: a significantly higher percentage than seen during the pre-war economic crisis and even during the ten-year conflict itself (World Bank 2015).

Civil war gripped Côte d'Ivoire for the decade following the launch of a rebellion in September 2002 aimed at ending President Laurent Gbagbo's regime. Western powers intervened in the Ivorian war firmly on the side of the rebels and their champion for the presidency, Alassane Dramane Ouattara (or 'ADO', as his countrymen call him). Ouattara is a former IMF director and was the political leader behind the rebel forces. Although pro-Ouattara forces were no less destructive or cruel than their Gbagboist adversaries, the foreign intervention justified its support to Ouattara as a humanitarian necessity required to prevent a genocidal campaign by Gbagbo's forces, declared imminent, against the Northern Dioula population. Stability returned in 2012, but only after a bloody electoral crisis culminated in the joint French-UN regime change

<footnote n="16">¹⁶ According to the World Bank, Côte d'Ivoire has an economy and financial resources comparable to Morocco and Tunisia (World Bank 2015). While Côte d'Ivoire had a life expectancy of 52 years in 2015, both Tunisia and Morocco's were 76 years at that time. In the ECOWAS group, only Chad, CAR, Lesotho, Nigeria and Sierra Leone had lower life expectancies than Côte d'Ivoire when this data was collected. In 2017, Morocco had a primary education completion rate of 93%, compared to Côte d'Ivoire's 73% completion (no data was available for Tunisia that year). Also in 2017, the under-five years child mortality rate in Morocco is 23 children out of 1000 while Tunisia is 17 out of 1000. In Côte d'Ivoire, the rate was 84 out of every 1000 children (World Bank Group 2020).</footnote>
operation that finally secured Ouattara's presidency. In the conflict's aftermath, the new government and the United Nations Peacebuilding Mission to Côte d'Ivoire (ONUCI) together launched a national transitional justice process.

Ivorian transitional justice was a public demonstration that just and good governance had returned to the country. The process signalled that this new regime was committed to liberal democracy and would be a responsible member of the international community. Today that image continues to ring truer than any evidence to the contrary. That image endures despite significant body of testimony linking the rebel forces to acts of ethnic cleansing. It also endures while assistance for the war's many victims is left off the reconstruction agenda and while the number of desperately poor Ivorians rapidly grows. As we will see in the coming chapters, the transitional justice process ultimately provided almost no support to victims and undermined their demands for assistance. Instead, serving a quite different purpose, transitional justice played a foundational role establishing the legitimacy of the new government. The legitimacy garnered by the transitional justice process made neoliberal reforms not only acceptable to citizens and foreign observers, the close alignment between neoliberal governance and the moral order established by transitional justice institutions made those reforms appear to be a moral imperative in the transition to peace and good governance.

### 1.3.1. *Commission Dialogue, Vérité et Réconciliation*

The *Commission Dialogue, Vérité et Réconciliation* (CDVR) was established by presidential decree in July, 2011, with the goal of achieving “reconciliation and reinforcing social cohesion in
Ivorian communities” (CDVR 2014). President Ouattara named Charles Konan Banny
Commission President and appointed a panel of ten Commissioners. <fnref n="17" /> According to the CDVR
Report, the group were named ‘following a long consultation process’, although no further
information is available regarding the consultation procedure or participants (ibid). Although the
commissioners represented diverse ethnic and religious backgrounds, all were elites based in
Abidjan.<fnref n="18" /> Charles Banny is, himself, one of the country’s wealthiest individuals as well as a
former Prime Minister.<fnref n="19" /> In the CDVR Final Report, the commissioners summarize their
methodology as the work of ‘ending conflict in public life’. The statement on methods places
surprisingly little emphasis on investigations or collecting testimony, and makes no mention of
reparation or accountability. The commission’s work, the report explains, was “bringing the
population together over a shared vision and values based on respect for difference, respect for
the state and its institutions, a common culture of civil law and a return to solidarity” (ibid).<fnref n="20" />

<footnote n="17">¹⁷ Three of them were honorary commissioners, inactive in the work of the commission, though nonetheless beneficiaries of the generous salary allocated to this role. The honorary commissioners included the multi-millionaire and football superstar Didier Drogba, whose representative arrived at the CDVR headquarters every four months to collect his salary. This fact is particularly unsettling when contrasted to the almost complete absence of funds allocated to reparations and support for victims (this information was shared in an interview with an anonymous staff member at the CDVR, April 2013).</footnote>

<footnote n="18">¹⁸ The group further included prominent businessmen, a high-power commercial lawyer and a politician. Their high standing in Ivorian society was reflected in the budgeting of the commission. A source within the CDVR alleged that the commissioners assigned themselves annual salaries ranging from $100,000$ to $400,000 USD, claiming the salaries should match their regular jobs. Note that the median income in Côte d'Ivoire is approximately one US dollar per day. The group took multiple international trips in the course of their work, further subsidizing their salaries with per diems. Both in the CDVR report and in a public statement made at the time of its release, Banny justified how little of their mandate was finally completed by complaining that the 15$ million USD budget allocated to the CDVR could not cover the significant costs of operations (UNOCHA 2014). After the salaries and expenses of the commissioners were paid, it is unsurprising there was little left for operations, let alone for victim support.</footnote>

<footnote n="19">¹⁹ Banny was a Presidential candidate during the 2015 election, meaning he was campaigning for office while still heading the truth commission.</footnote>

<footnote n="20">²⁰ Only one of the CDVR’s listed ‘operational methods’ includes a reference to truth-seeking. The list of methods starts with the simple statement, ‘dialogue’, followed by the above cited quote on bringing the population together. The third method is listed as “accessing the truth and identifying lies, and ridding public life of the lies that continue to circulate”. The fourth method regards promoting good governance, promising “to make a rights respecting</footnote>
Although the commission was operational for three years, little work was done before the final six months.<fnref n="21" /> The commission achieved little in terms of investigating or establishing the truth about the past. Nevertheless, the process was highly publicized, and narrated by constant television and public statements from the Commissioners and the government about reconciliation amongst ethnic groups and the responsibility of all Ivorians to participate in “perfecting the Ivorian nation”.<fnref n="22" /> The powerful impact these messages had on the post-war environment is evident in the fact that more than seventy-thousand people found their way to CDVR statement-taking centers in the three month window when the commission collected testimony.

The national statement-taking campaign lasted only three months, from April through July 2014.<fnref n="23" /> Nonetheless, during this short time, the CDVR collected 72,483 statements detailing 104,548 incidents.<fnref n="24" /> Although the sheer number is impressive, the majority of statements were

<footnote>country, where the security system and government work for everyone". The other four listed 'methods' are all focused on promoting unity, social cohesion and 'the shared value of living together' (CDVR 2014).</footnote>

<footnote n="21">²¹ The CDVR Final Report acknowledges that little was achieved in the first two years of the process (2014). In their statement on the matter, the commissioners blame both a lack of funding and the government's lack of preparatory work prior to appointing the commission. It was also the case that the commissioners were slow to hire staff, agree on a work plan and implement programs. This is, at least in part, due to the fact that most members of the senior staff continued to do their regular jobs on top of their duties at the commission.</footnote>

<footnote n="22">²² This was a slogan adopted by the CDVR and prominently displayed on a banner across the Commissioner's platform at public hearings.</footnote>

<footnote n="23">²³ Although there was a small pilot phase and some preparatory work, the offices essentially operated for the CDVR from 28 April through 31 July 2014 when the national statement-taking campaign was in effect. For the majority of the three years that the CDVR operated, 'local commissions' had no official function but were nonetheless rented and staffed, paid for by international donations and Ivorian taxpayers. In the final year of the commission and even beyond the official end of the CDVR, Charles Banny effectively used the local commissions as campaign offices in his bid for president in the 2015 elections (Interview with anonymous CDVR staff, April 2013).</footnote>

<footnote n="24">²⁴ It is worth noting that the CDVR had some merit as a fact-finding body. Statement-takers were responsible for keeping statistics on the testimonies they collected across the country. This means the aggregate number of violations published in the tables included in the CDVR report are a fairly accurate reflection of witness and victim statements. Although a desk review of public sources and three months of statement-taking without further investigations cannot be deemed a representative or highly reliable source on a decade long conflict, those numbers are nevertheless the most comprehensive data available of the Ivorian conflict. Of the 104,548 specific violations</footnote>
never analysed, let alone verified. The CDVR Final Report was handed to President Ouattara in
December 2014, just four months after the statement-taking campaign ended and one month after
the final boxes of statements arrived in headquarters (ibid). This is not enough time to code,
verify and analyze seventy of thousand cases and that fact is obvious when reading the CDVR
Final Report. The report provides only a few pages of analysis, and does not refer to any specific
incident or testimony, despite identifying more than one hundred thousand grave human rights
violations.

Instead of findings, the CDVR report ends with some reflections from the Commissioners.
Though only a few pages long, the statement reveals much about the CDVR leadership's
understanding of their role in the country's transition. The authors offer moral guidance to a
population they characterise as divided by hatred, and they hold up transitional justice as a means
of renewing public life in a modern liberal democracy. The opening paragraph reads, "our
society has lost the culture of restraint; the ability to comport oneself, to endure hardship, and
respect norms and morality." It continues, "this has hurt the economic, social and political order.
It has formed a culture of excessiveness and impulse, and it does not allow the development of
entrepreneurship... instead encouraging dependence, denegation of solidarity and a reduction of

reported by the CDVR, 12,082 were cases of murders, disappearance or forced disappearance; 10,730 were accounts of torture or other severe injuries; 45,939 were reports of destroyed property; and 1,359 were accounts of gender-based violence. Approximately 47% of these incidents happened in the final year of the war, with the other half spread out over the preceding decade (CDVR 2014). This is valuable information, particularly given a lack of reliable casualty rates is used, even today, to misrepresent the severity and impacts of the war. Though a snapshot of the war rather than undisputable fact about violations committed, the CDVR report is the only comprehensive data that can counter the official numbers given by the United Nations. The UN officially maintains that an estimated 3000 people died during the entire ten-year period, including military deaths (note the CDVR death rate counts 'murdered and disappeared' individuals, meaning those who died on active military duty *should* not be included. This distinction, however, is not specifically stated in the Final Report. Moreover, these lines are difficult to define in any contemporary war, and the various kinds of ad hoc militias active in Côte d'Ivoire make it more difficult still in the Ivorian case). For reasons explained in Chapter Four, the official UN numbers are misleadingly low and downplay the devastation caused during the conflict. As we will later see, the remarkably low death count helps tacitly hid the complicity of the UN and other members of the international community in some of the more horrific episodes of the civil war.
the concept of fraternity to only fellow beneficiaries”, which the report then defines as “in-group/out-group thinking”. Overall, the CDVR process, and especially the commission’s final report, put little emphasis on the actual work of truth-seeking. The focus was almost entirely on giving moral lessons to the population and performing symbolic acts of turning the page on the country’s past.

### 1.3.2. Tolerable and Intolerable Suffering

The CDVR reproduced the narrative that had dominated international news and diplomatic communiqués during the conflict: an account of bloody civil war motivated by ethnic hatred (Human Rights Watch 2001). As seen above, the CDVR report issued to the public was little more than a methodological overview of the commission’s work.<fnref n="25" /> The impacts of the CDVR instead came from the statement-taking process, from airing public hearings, and from

<footnote n="25">²⁵ If anything, there was a pro-Gbagbo bias at the CDVR. That bias was a poorly kept secret once Banny launched his presidential campaign and began making public statements accusing ADO of dividing the country and promising, if elected, to return Gbagbo from the Hague (Campaign speech by Banny at an opposition campaign rally, Youpougon, Côte d'Ivoire August 2014). This was, of course, a tactic for attracting Gbagbo's support base rather than a genuine concern for the jailed ex-president. Nevertheless, it showed the CDVR was no instrument of the ADO administration. The commission was independent and had numerous open confrontations with the president around funding, extensions and other matters of its operations. This was seen by the international community as evidence that the ADO regime was truly committed to uncovering the truth and ensuring a legitimate transitional justice process. That said, looking beyond public squabbles over operational details, the more significant matter is that the commission made no bold claims about the root causes of the conflict and gave no researched analysis of what happened. It presented no challenge to the leadership of either ADO or Gbagbo's camp, instead painting a picture of violent youths and leaving elites from both sides unnamed. If anything, Ouattara likely wanted the CDVR to discredit his layman rebel soldiers by characterizing them as radical and violent youth. During the war civil, amidst claims of championing the marginalized Dioulas' cause, the rebellion had appealed to and recruited tens of thousands of youth from the most marginalized and lowest-income communities in the country. After the war, these men expected to be well-rewarded for their role putting ADO in office. In the years that followed, ADO's neoliberal restructuring of the economy and his elite-oriented governance went drastically against those expectations. During the post-war period, these former rebels became a thorn in the new government's side. They used blockades and public disturbances with increasing frequency to extort more and more 'demobilisation' funds from Ouattara's regime. These incidents are ongoing and have grown in recent years, culminating in a mutiny in 2019 that won each fighter 18,000 euros in exchange for a return to calm (Bauselaire 2019).</footnote>
statements made by its leadership and government partners in the media and in speeches.

Although the hearings were effectively closed to the public, select transcripts and footage were released. These provide vignettes into the war, as curated by the commissioners. Testimony was balanced in the sense that both sides of the conflict were represented amongst participating victims and perpetrators. That said, the commission did not analyze or investigate the testimony it collected. The CDVR presented the past exclusively through the lens of an ethnic war, fought by radicalised youth. As we see in Chapter 3's detailed account of the conflict, that narrative hides more than it reveals. The sum of incidents of violent confrontation between ethnic 'others' does not add up to the larger context of exploitation and plutarchy that surrounded the conflict nor does it expose the political manipulations and acts of extortion that characterised the top leadership on both sides of the partition line. That wider context disappeared from the CDVR's account, leaving only snapshots of the most overt and horrific acts of the war.

Reframing the narrative in this way circumvented a long history of structural inequalities, imposed under colonial rule and maintained by an oligarchic and often heavy-handed ruling elite. The truth commission instead told about a national crisis of moral failure driven by irrational hatred of ethnic and religious others. It is true that youth militias and ad hoc auto defense squads committed the bloodiest acts of the war, however the youth-led violence that characterized the conflict was a response to decades of exploitative rule, culminating in a series of economic and political crises. The civil unrest that followed from those crises was manipulated by the ruling class as they negotiated power struggles within the top tier of Ivorian society. Rather than an ethnic conflict, the Ivorian civil war is more accurately characterised as a violent eruption at the breaking point of a kleptocratic regime that was still holding over from the *France Afrique* era. Ouattara's rebellion primarily recruited poor and extremely poor descendants of regional
migrants and northern labourers, whereas Gbagbo's core supporters were from a middle class rapidly slipping into poverty. In both instances, these were young people reacting to their exclusion from a social and economic system that benefited a small few at a time when opportunities were shrinking for the rest.

The transitional justice model is premised on the assumption that history can be pieced together by aggregating many individual accounts of the past. This tends toward overemphasizing hatred of ethnic 'others' as a motivation for violence. When giving testimony before a truth commission, victims are encouraged to focus on the specific acts of cruelty they were invited there to describe. They are usually directed back to the 'facts of the case' by a legal counsel should their testimony veer to other matters. The focus on individual acts of brutality inevitably writes a narrative where abuses result from personal failings such as anger, hatred or intolerance. This, in turn, shifts blame onto the most visibly violent individuals, shielding the architects and beneficiaries of conflict from culpability. As a result, the transitional justice approach is apt to overemphasis the role of ethnic hatred in a conflict and, by the same token, is ill-equipped to analyse the complex structural and historic roots of conflict.

Transitional justice thus tends towards simpler narratives in which violence is caused by moral failure, resulting from intolerant or misguided people, rather than rooted in social injustice or oppression. Wherever prejudice is considered the primary reason for conflict, the response will focus on 'changing hearts and minds.' This makes peace and reconciliation a technical project of re-educating illiberal masses rather than recognizing that the resentment of those hearts and opinions of those minds are bound within longstanding and often legitimate grievances. The narrative hides the reality that, to address the past and prevent the reoccurrence of conflict, reforms aimed at affecting transformative change and addressing legitimate citizen grievances
are needed. This, in turn, excuses the ruling class from the responsibility to acknowledge and
address structural injustices.

In Côte d'Ivoire, characterizing youth militants as would-be 'genociders' pushed blame onto
radicalized young Ivorians and, in doing so, helped exonerate the oligarchs who orchestrated and
profited from the war. The CDVR, headed by a group of state-appointed political and business
elites, went even further. It presented the ruling elites as champions of forgiveness, ready to
rebuild together despite the uncooperative and unruly masses. This was an astute deployment of
transitional justice on the part of the CDVR leadership and their government sponsors. Even
when a perpetrator regime is overthrown, as it was in Côte d'Ivoire, the new elites who replace
them are often equally enmeshed in the sources of structural injustice. Transitional justice tends
to be blind to this reality, homogenizing the interests of victims and citizen groups with the
interests of the new decision-makers in a replacement regime (Nesiah 2016).<fnref n="26" /> As a result,
transitional justice is easily hijacked by members of the ruling class and used as a platform for
the new face of an old elite to gain legitimacy and to control narratives about the past. As CDVR
commissioners and in government statements, the Ivorian elites declared their dedication to build
peace and reconcile a country divided by hate. The newfound commitment to reconcile amongst
the elites had important effects beyond that stated aim; it served as a mutual agreement amongst

<footnote n="26">²⁶ The transitional justice model was invented as a tool used by pro-democracy activists and their civil society allies, many of whom where direct victims themselves, to undermine the lingering power of unseated authoritarian regimes in Latin America from the late 1970s through the early 1990s. Today, the contexts where transitional justice efforts are deployed rarely match that original one. The critique made by Nesiah (2016) reflects the consequences of that shift in context. Civil society movements and victims' groups are secondary players in the decision-making and implementation of contemporary transitional justice. Instead, these processes are now constructed by high-level politicians, with the funding and oversight from the UN and foreign donors. Although the role of national and foreign elites shaping these processes does not necessarily undermine the independence and objectivity of TJ institutions once established, these mechanisms are nonetheless designed and deployed by high level politicians and foreign policymakers. They thus have a fundamentally different focus and impact than those not created by and for victims or civil rights activists.</footnote>
elites to preserve the status quo, while presenting their continued dominance as a triumph for
peace and liberal democracy.<fnref n="27" />

Here we reach the crux of the issue. The tendency of transitional justice to treat ethnic hatred as a root cause of conflict protects elites from accountability and helps preserve their interests during post-conflict reconstruction. This is because ethnic war, by definition, is caused by irrational hatred of an ethnic other. The problem, then, is an intolerant citizenry and not legitimate grievances such as desperate poverty, social exclusion or oppressive rule. Focusing on the population's moral failings as the cause of conflict pushes structural inequalities and elite privilege off the reform and justice-seeking agenda, with important implications for future governance. Transitional justice, as we have seen, is deployed to re-establish moral order in the wake of atrocity. By consequence, transitional justice does not simply push structural injustice outside the parameters of its operations, it establishes a new moral order in which these forms of suffering are largely irrelevant to the work of righting past wrongs. This, in turn, advances neoliberal reforms in a post-conflict country by establishing a new standard of good and democratic governance in which poverty, inequality and exploitation are off the reform agenda. In this view, such suffering is deemed the concern of those experiencing it, and neither the fault nor the responsibility of political leaders or fellow citizens.

<footnote n="27">²⁷ For example, anyone following the story of ethnic war told by the international media would be confused to discover that President Ouattara invited a significant number of FPI political elites to his inauguration party, yet few of his militant leaders were included on the invite list (Fofana 2009).</footnote>
1.3.3. Côte d'Ivoire at the ICC

Compared to the CDVR, criminal prosecutions both nationally and at the international level played a more enduring role in the country's transition. A series of domestic special trials launched soon after Ouattara took power and is ongoing today. For the purposes of this dissertation, the domestic trials are set aside. The Ivorian accountability process is instead analyzed through the International Criminal Court (ICC) case against former President Laurent Gbagbo and his Youth Minister Blé Goudé. Gbagbo was the first head of state to stand trial before an international court on the charge of crimes against humanity. The international community once held up his trial as the symbol of a new era in global justice, where dictators would finally be held accountable (Okello 2019). To the great surprise of many onlookers, the ICC judges acquitted both men in a six-to-one ruling on January 15th 2019 (ICC Trial Chamber 2019).

Gbagbo was not only acquitted, the trial did not go beyond the prosecutor's submission, meaning the defense had not even presented its case when the judges decided the process could go no further (ibid).<sup>28</sup> The decision to end the trial followed seven years of proceedings during which time 132 witnesses were called (eighty-two heard), ten thousand documents were reviewed and

<footnote n="28"><sup>28</sup> The official statement from the ICC outlining the failures of the prosecutor's case listed the following four points: First, the prosecution could not demonstrate a 'common plan' existed to keep Gbagbo in power, let alone that such a plan involved crimes against civilians. Second, the evidence did not substantiate the claim that the state or its organization aimed to attack civilians, nor that a policy of attacking civilians existed. Third, the prosecution did not show that the speeches of Gbagbo or Blé ordered, solicited or encouraged crimes to be committed. The judges actually wrote in their decision that the speeches presented to the court showed the opposite: that the two men encouraged peaceful resolution to the conflict in their public statements. Finally, the prosecutor could not show that either of the accused knowingly or intentionally contributed to the crimes for which they were charged. The judges went further, saying that the prosecution primarily provided indirect evidence not specific to the actual charges. They noted that such indirect evidence is not permissible in court but, even if they had accepted it, that indirect evidence still did not provide proof of a policy of attacking civilians (ICC Trial Chamber 2019).</footnote>
hundreds of hours of video footage submitted. The presiding judge described the evidence as
“mountains of documents purportedly supporting that case, none of which could confirm it in the
slightest” (Peniguet, 2019). The official delivery of decision declared that this rare instance of
an acquittal before hearing from the defense reflected “how exceptionally weak the Prosecutor’s
evidence [was],” later repeating that “the credibility and reliability of the evidence [was]
seriously questioned” (ibid).

At the time of Gbagbo's arrest, the international community and the ICC prosecutor's office
were certain of his guilt.<fnref n="29" /> During the seven-years spanning Gbagbo's arrest and acquittal, his
ICC indictment for crimes against humanity was a powerful symbol of the widely-accepted
belief that Laurent Gbagbo is a war criminal and his regime was a dictatorship. Likewise,
President Alassane Ouattara's reliance on international justice and his close cooperation with the
ICC was an equally powerful symbol of his rights-respecting, democratic government. After
years of investigations, multiple extension requests, hundreds of witness statements and
thousands of documents, the prosecution could not find sufficient evidence to build a viable case
against Gbagbo, let alone secure a conviction. The vast gap between public expectations of the
case and the reality that followed relates to the role of the international justice system enabling
the global governance community by building the moral legitimacy of likeminded regimes and
discrediting opponents of the western liberalism.

<footnote n="29">²⁹ For example, see Luis Moreno Ocampo's statement on the day the Gbagbo was charged by the ICC. Ocampo declared Gbagbo planned and directed while “[his] forces targeted civilians believed to be supports of Mr Ouattara, and the attacks were often directed at specific ethnic or religious communities” (JusticeInfo 2011). Hillary Clinton, then US secretary of state, also issued a comment on that day warning ‘dictators around the world to take note’ (D. Smith 2011).</footnote>
### 1.3.4. Permissible and Punishable War Crimes

Many individuals who led the rebellion and subsequent civil war were behind Côte d'Ivoire's miraculous postwar economic recovery. These warlords and their men committed grave atrocities against civilians, including episodes of ethnic cleansing and mass executions. In the aftermath of conflict, Ouattara's warlords were granted effective immunity by transitional justice institutions at both the national and international level. Meanwhile, the ICC, with guidance from the international peacebuilding mission to Côte d'Ivoire (ONUCI), opened a one-sided trial against Laurent Gbagbo and Blé Goudé. No member of Ouattara's regime was indicted despite the known involvement of his warlords in civilian massacres with significantly higher death tolls than the crimes for which Gbagbo and Goudé stood trial.<fnref n="30" /> That said, this is not merely a cynical story of victors' justice. Neither the new Ivorian regime nor the international community ignored demands for accountability after the war. Quite the opposite: both the range and scale of

<footnote n="30">³⁰ Note that stating the culpability of Ouattara and his associates is not an assertion of Gbagbo's innocence. Gbagbo's camp committed grave and systematic human rights violations. The ICC charges reflect events that indeed took place, even if the ICC could not prove Gbagbo's direct role in planning or orchestrating those crimes. Even his staunchest supporters do not deny the existence of pro-Gbagbo death squads, contesting only the extent of their crimes and whether Gbagbo in fact commanded the groups. The high-profile murder of a Canadian-French journalist Guy-Andre Kieffer who disappeared while investigating corruption in the cocoa industry is the most detailed available account of Gbagbo's shadow security service at work (Kieffer 2004). The matter of Gbagbo's direct involvement in the death squads and alleged war crimes remains a fierce debate in Ivorian society. In seeking an answer to these questions, I interviewed numerous people close to the former president, including individuals from his professional and his personal life, as well as representatives of the RDR opposition who worked with him. These associates expressed the overall opinion that Gbagbo was an academic and an idealist by nature, and did not have the stomach to directly plan the violence that was ultimately done in his name. Even Alassane Ouattara, who worked closely with Gbagbo earlier in their political careers, expressed this same opinion in the first year of the conflict – though, evidently, he changed his mind later on (FIDH 2000). That said, Gbagbo could benefit from death squads and their crimes without needing to personally command the units or order attacks on civilians. He had high ranking officials acting on his behalf who were able to stomach the violence that maintained his regime. Most infamous amongst them were Simone Gbagbo (though she was also later acquitted of crimes against humanity in an Ivorian court), her security chief Anselme Seka Yapo "Seka-Seka" (found guilty of murdering General Guei and implicated in Kieffer's murder (Jeune Afrique 2016h)), and General Bruno Dogo Blé (Trial International 2015).</footnote>
transitional justice mechanisms deployed in Côte d'Ivoire show a major financial, time and personnel investment made in the name of post-conflict justice. Amongst those mechanisms, the ICC trial in particular legitimatized the claim that Côte d'Ivoire's transitional justice process was morally sound and reflected the ethical standards of the highest office in the international justice system.

The ICC's selective accountability reflects the principle that human rights and freedoms are of fundamental concern in global governance institutions, but only to the extent these values do not impinge on important economic or elite interests. Rather than a case of victor's justice, the ICC Côte d'Ivoire trial reflected the neoliberalism of contemporary global governance policy and practice. The Ivorian transitional justice process embodied that principle by creating a clear delineation between punishable war criminals and war criminals who, though perhaps reprehensible, are nevertheless permissible in the eyes of the international community. In practice, this principle translated into an international criminal trial in which, on one side, the men and women most responsible for human rights abuses committed in support of Gbagbo's pseudo-socialist state are held accountable by domestic and international justice. On the other side, those most responsible for similar as well as much graver abuses do not have the title of war criminal attached to their name, even in cases where their crimes are well-documented in public records and painfully alive in national memory. Instead, these men are addressed by domestic and international institutions only according to their new identities: as the industry leaders and business tycoons they became after the war, in large part thanks to wealth and resources expropriated during the conflict.

### 1.3.1. Why Côte d'Ivoire?
For all the criticisms one can mount against it, the transitional justice process in Côte d'Ivoire was not illegitimate by international standards. There are examples of transitional justice rendered a sham by political interference or co-option, but Côte d'Ivoire is not one of them.<fnref n="31" /> Elements of the Ivorian transitional justice process were poorly implemented, and the process showed signs of manipulation by powerful interest groups.<fnref n="32" /> Nevertheless, we cannot dismiss the problems with Ivorian transitional justice by simply saying these would have been avoided, if only Ivorians had followed the established international standards and principles. The Côte d'Ivoire process checked most boxes demanded by foreign donors and watchdogs (Hayer 2001; OHCHR 2006; ICTJ 2013). No matter how disappointing the final results of Ivorian transitional justice may seem, those outcomes were not the result of a co-opted or sham process. Moreover,

<footnote n="31">³¹ Paige Arthur discusses how the field developed standards of legitimacy and illegitimacy in her conceptual history of transitional justice (Arthur 2009). The Kenyan TJRC is a recent example of arguably (or partially) illegitimate transitional justice that received wide international attention after the Commission Chairman cowed to the ruling party and helped cover up of their role in the post-electoral violence, corruption and land grabs (see earlier footnote on the Kenyan TJRC). The standard example of illegitimate transitional justice is the 1974 Ugandan ‘Commission of Inquiry into the Disappearances of People in Uganda since 25 January 1971’. Incidentally, this process - essentially an impunity-granting body - was the first truth commission to call itself such. The case study is discussed in Hayner’s article Fifth Truth Commissions (Hayner 1994). Myriads of other examples are available of political leaders manipulating these processes in whole or part to control narratives about the past, punish or delegitimize political rivals, avoid accountability, and win international recognition as good governments while avoiding substantive reforms. For some critical assessment in the academic literature, see Csilla Kiss (2006) on Hungarian post-USSR transitional justice, Susan Thomson (2011) on the Gacaca Courts in Rwanda, and Sandra Rubli (2013) on the Burundian process.</footnote>

<footnote n="32">³² The thin CDVR report and a lack of investigations or analysis was an embarrassment to many of the commission staff and to those in the international community working with the truth commission. The commission was nevertheless well-received by the public and operated at least well enough to collect a huge number and diversity of testimony in a short period of time (UNOCHA 2014). It should also be mentioned that the failures of the CDVR report were not the result of a state coverup or an unwillingness to analyse their data on the part of the commissioners or senior staff. The CDVR poorly managed time and financial resources and, from the start, had an unrealistically short operational period. It thus ran out of time and money, and should have been extended – a problem common to virtually every truth commission. Instead, the CDVR ended abruptly because both Ouattara and Banny were running in the presidential election in 2015 and neither were willing to extend the commission into the election year. Had that timing been different, Banny would perhaps have requested another extension and the report could have improved. That is not to say, however, that the focus on ethnic violence and youth perpetrators would likely have shifted. This framing was built into the CDVR mandate and operations from the first stages of the process and firmly held by key members of the commission (CDVR 2014).</footnote>
the degree of manipulation and operational problems seen in the Ivorian case were not uncommon. By definition, transitional justice operates in contexts where institutional failure is the norm. For the approach to be useful, it needs to be robust to that reality or face the existential problem of only functioning where it is unneeded.

Transitional justice mattered to Ouattara because it was an opportunity to show that liberal democratic rule had replaced dictatorship in Côte d'Ivoire. It was therefore important to the regime that Ivorian transitional justice was backed by international supporters and widely perceived as legitimate both in and outside the country. Thus, for the large part, the CDVR followed established international standards defining a legitimate transitional justice process.

First, the process was independent from government interference. During the two years I worked as an advisor to the commission, I did not observe political interference by the state. Moreover, the commissioners openly challenged the Ouattara administration on a number of issues without consequences to their operations. Second, the CDVR was also an impartial process. The commission was careful to present a balanced account at its hearings and in public statements, and strived to equally hear from perpetrators and victims in both camps. Third, the commission was broadly inclusive. Commissioners and staff represented diverse ethnic and regional backgrounds. The commission also collected a remarkable number of statements from diverse demographics and regions, and implemented special measures to ensure women and children could fully and safely participate. Finally, the government encouraged international oversight at every phase, meaning technical advisors and watchdogs monitored each stage of the process.

Given the CDVR largely respected established international standards and guidelines, its failures reveal problems with transitional justice as a field as much as they point to matters unique to the Ivorian context. Likewise, the ICC is the highest body in the global justice system, meaning its
one-sided trial, built on assumptions rather than evidence, speaks to problems with international justice more than it exposes issues specific to Ivorian transitional justice. While elements of both the CDVR and ICC trial were shaped by unique dynamics in the Côte d'Ivoire context, these processes also speak to wider issues within transitional justice as a global field and practice. For that reason, Côte d'Ivoire is a useful case study when analysing the effects of transitional justice on post-conflict governance and social reforms. The proceedings and outcomes seen in the Ivorian case are more or less typical of the transitional justice model, as currently defined by international standards and guidelines. It is an example of the accepted transitional justice model, molded to serve elite interests at both the national and international level, but nonetheless largely aligned with established standards and best practices. Anyone interested in transitional justice therefore ought to be interested in Cote d'Ivoire as a typical example of how these processes operate and their impacts on post-conflict contexts in the contemporary era.

### 1.3.1. The Question of Intentionality

A key question remains regarding my contention that transitional justice has a neoliberalising effect on post-conflict environments. I claim that effect is inbuilt to the transitional justice model. Does this claim imply transitional justice is *intentionally* deployed to advance neoliberalism in post-conflict sites, or is that effect an accidental outcome of an otherwise benign project?

Neoliberalism is a term used by those critical of the approach. For these critics, labelling a policy or program neoliberal is an allegation that social welfare is being neglected in favor of financial growth and business success (Brown 2015). The architects of a transitional justice process surely do not wish to actively deny social justice to less fortunate citizens or block victims from
achieving a better life. Even the best-intentioned of policymakers, when tasked with the
challenge of rebuilding after a period of conflict and destruction, will nonetheless find it
convenient to adopt a reform agenda that garners praise for his or her commitment to justice and
liberal values, while simultaneously avoiding any serious challenge to the standing and economic
prospects of the elite. Recall it is a common pitfall of the transitional justice model to assume
replacing an aggressor regime means an overhaul of the governing structure. In reality, the new
regime is often comprised of elites from the same background and social standing as their
predecessors (Nesiah 2016).

There is no easy solution to the tension between citizen demands for transformative justice and
the neoliberal governance priorities pushed by the international community and often shared by
national elites (as was the case in Côte d'Ivoire, for instance). Transitional justice allows
policymakers to navigate that tension, not because the model offers a solution, but rather because
the field has effectively turned a blind eye to the challenge it presents. In the absence of a good
solution to the challenge posed by economic and social injustice, transitional justice literature
and practice are essentially devoid of debate on the complications of balancing economic
interests with social justice demands. Decisions at the intersection of justice and economic
interests are treated as technical matters, outside the scope of the field, to be discussed in closed
door meetings between foreign experts and governing officials. It is quite unlikely those state
officials and donor country representatives overtly scheme to deploy transitional justice as a
means of minimalizing victim demands while advancing business interests. Nonetheless, these
actors are aware, if only inadvertently, of the convenience provided by a 'growth versus justice'
blind spot in the transitional justice model. This is evident wherever a new regime deploys
transitional justice as a strong statement on human rights and democratization, yet
simultaneously restructures economic policy to favour markets over social spending or dismantles social movements that make more radical demands for change.<fnref n="33" /> It is equally evident in the contemporary global governance and peacebuilding model. Transitional justice offers policymakers a comfortable middle road between requiring a new regime to demonstrate its commitment to citizen rights, but without compromising future economic opportunities for the sake of correcting past wrongs.<fnref n="34" />

This explanation gives little insight, however, into the motivations of practitioners championing

<footnote n="33">³³ See Sriram on the alignment between neoliberal peacebuilding efforts and the timing of transitional justice initiatives (Sriram 2007). Carranza writes on transitional justice contributing to a separation of the economic sphere from other peacebuilding priorities (Carranza 2008). Some country case studies of neoliberal restructuring following from peacebuilding missions that featured transitional justice as a core part of the post-conflict agenda include Pemunta on postwar neoliberal peacebuilding in Sierra Leone (2012); Bliesemann de Guevara on peacebuilding constraining recovery due to neoliberal reforms that restricted governance in Bosnia and Herzegovina (2008); and Robins on the co-option of the peacebuilding agenda by elites through transitional justice in Nepal (2012).</footnote>

<footnote n="34">³⁴ Founded by Koffi Annan in 2003, the UN Peacebuilding Commission and, later, its subsidiary the Peacebuilding Support Office, are the global coordination bodies of peacebuilding efforts worldwide. Under Annan's leadership, the Peacebuilding Commission adopted transitional justice into its operational principles. To borrow the term of used by international law scholar Thallinger, it is a central authority offering 'guardianship' to these processes (Thallinger 2007). The neoliberalism of peacebuilding is seen in an operational agenda that links classic liberal values such as democratic governance, equal rights, equal access to justice and rule of law into a wider economic project that includes freeing markets, deregulation of business and labour, and encouraging rapid growth and foreign investment. Evidence of this dual agenda is found in the package global governance tools deployed by UN peacebuilding missions in postwar zone. The World Bank adopted justice and rule of law as central part of its core agenda from the mid-1990s, and specifically began coordinating with transitional justice initiatives from 2010. The Bank committed in 2011 to continue including justice as an "integrated part of projects focusing on public sector reform, governance and anti-corruption, citizen security, private sector and economic development, urban and social development, poverty reduction, gender equality, and natural resource management" (The World Bank 2015). More recently, the World Bank developed a Humanitarian-Development-Peace (HDP) Nexus approach as a guiding principle of postwar projects, with the aim to leverage a country's 'comparative advantages' to address the causes and consequences of war. The impact of such efforts is significant, given the World Bank Group State and Peacebuilding Fund are currently the largest global trust fund available to conflict zones (Bank 2019). Since 2017, The United Nations and World Bank 'Partnership Framework for Crisis-affected Situations laid out a coordinated support platform for conflict and post-conflict zones. That support framework includes a list of recovery needs assessments as well as governance effectiveness assessments and public expenditure reviews (United Nations Peacebuilding 2019). Stated goals of the joint framework connected implementing the UN peacebuilding *Pathways to Peace* as a tandem to 2030 Agenda for Sustainable Development, as defined in the SDG+ initiative (ibid). Note that SDG+16 refers to transitional justice as necessary to the effective implementation of the agenda.</footnote>
the transitional justice approach. Each step in a transitional justice process, from design through all phases of implementation, depends on the work of many national and international activists and advisors. These people chose their profession because it offers an opportunity to assist some of the most vulnerable populations on earth. Without question, such individuals do not purposefully contribute to undermining the hopes of conflict victims for meaningful change.

More likely, there is incongruence between the intentions and impacts of these actors because such a reality is hard to perceive, especially since no one ever wants to see such incongruence in her or his own work. One's field of vision is limited when positioned inside a transitional justice institution and clouded by the complexities of surrounding circumstances, making it is difficult to see the long-term effects of one's efforts.

That said, with some reflection, it is possible to perceive that many small decisions contribute to an overall pattern of failing to meet victims' expectations and needs. I am referring to the daily decisions that practitioners make to tolerate desperate poverty and other forms of terrible suffering caused by structural injustice. These decisions are made based on the operational principle that such struggles are indeed tragic, but beyond the purview of transitional justice.

Practitioners equally make daily decisions to continue moving ahead with a justice-seeking process, even when it is evident elites are using the mechanisms for personal gain, or to write a narrative that shields them from scrutiny. Such decisions are justified by a belief that transitional justice will advance universal human rights and help defeat impunity, even if progress is slow and the wins are small. In this understanding, it becomes extraneous that, for most victims, their suffering and their demands for change are outside the scope and potential impacts of transitional justice. Since justice and human rights are universally desired and righteous pursuits, every small step towards those goals is better than nothing. Anyone who has worked as a humanitarian
will recognize the language of ‘small steps’ and ‘incremental change.’ Although these are a
valuable reflections in tough times, these idioms are easily overstretched to excuse mistakes and
ignore evidence that one’s work is not having the intended impacts or may even be working
against one’s best intentions.

1.4. Conclusion

It is not a new observation that transitional justice comes from a liberal democratic governance tradition, and that these origins limit its potential to support transformative change in contexts recovering from war or atrocity. Others have found that the focus on individual human rights violations within a transitional justice approach contributes to the failure of these institutions to acknowledge a wider context of structural injustice (Mamdani, 2002; McEvoy 2008; McAdams 2011; Nesiah 2016). Others have also documented that this incomplete analysis of injustice translates to a tendency for transitional justice to deliver piecemeal forms of relief to victims (McGovern and Lundy 2008; Mendeloff, 2009; Miller 2008; Snyder and Vinjamuri 2003; Mani, 2008).

Beyond an inbuilt liberal project, a new critical literature has emerged claiming transitional
justice actually has a *neoliberalizing* effect on the contexts where it is deployed. In a chapter
theorizing the political economy of transitional justice, Maria Carolina Olarte and Hannah
Franski observe that the global spread of transitional justice has supported neoliberal
globalisation through its failure to question core assumptions at the heart of TJ operations:
namely, the assumed separation of political and economic spheres, and the assumption that
liberal democracy is neutral and a universal good (Franzki and Olarte 2014). Simon Robins has written a case study illustrating this dynamic in Nepal's transitional justice process (2012). The piece demonstrates how transitional justice allowed Kathmandu-based elites to supersede the more radical advocacy agenda of the rural and indigenous victims' community. The discourse used in Nepal's transitional justice process served to push social and economic reforms off the agenda of an ultimately neoliberal political transition (Robins 2012). Josh Bowsher builds his theory of neoliberal transitional justice from Wendy Brown's framing of neoliberalism as a dual process in which "people are 'amassed' as stakeholders taking part in economic activities while simultaneously being individualised as "responsibilised' and self-sufficient entrepreneurial units" (Bowsher 2018). Bowsher contends that transitional justice parallels that process by bringing a traumatized society back together with a 'shared truth about the past' but, in doing so, simultaneously individualizes citizens as victims of human rights violations. This dual act results in an 'empty solidarity' that Bowsher considers foundational to neoliberal governance. Thus, in Bowsher's view, transitional justice establishes an environment for neoliberalism by restoring social cohesiveness, but on terms that do not threaten the neoliberal project (ibid).

My contribution to this emerging literature is an explanation of transitional justice's neoliberalising effect as a consequence of the 'parameters' around moral obligation that these institutions establish in contexts undergoing major political transition. By restricting the moral obligation to care about the suffering of others to a limited set of human rights violations, transitional justice establishes a new moral order where the suffering caused by individual human rights violations is intolerable and demands justice, but the suffering caused by grave inequality, deprivation and other forms of structural injustice are implicitly tolerated and hence easily overlooked by the state and by fellow citizens. Transitional justice institutions thus shape post-conflict justice into a process that protects elite interests and excludes transformative
reforms or more radical demands such as wealth or land redistribution. Moreover, this dynamic
extends well beyond rebuilding a judicial sector to be more business-friendly. Transitional
justice reshapes the moral order of a post-conflict context in ways that secure a sanctified status
for the economic sphere and its elite beneficiaries, beyond the reach of justice institutions and
post-conflict reforms. My contention that transitional justice has a neoliberalising effect thus
refers to more than a technical project of advancing policies in support of business and financial
interests (though these outcomes are certainly part of the dynamic I am describing). The
neoliberalising effect is foremost an ideological project. Transitional justice advances neoliberal
reforms by reshaping the moral order defining state responsibilities and societal norms in ways
that legitimize government prioritizing of economic growth and business success over social
justice and citizen wellbeing.
2. Pursuing Moral Renewal: An Intellectual History of
Transitional Justice

2.1. Introduction

The field of transitional justice was first described as a series of self-contained national
movements promoting social change and accountability during democratic transitions from
dictatorship in the 1990s in Latin America (Teitel 1997). This early scholarship emphasized the
potential of transitional justice to renew a nation's standards of morality by strengthening
accountability, rebuilding civic trust and reaffirming rule of law (Zalaquett 1989 reprinted 1990,
Teitel, 1997, Joinet 1997, Kitz 1995). Hence, from its earliest days, transitional justice was
credited with the ability to rewrite the moral code of post-conflict states. Today, as in the past,
practitioners deploy transitional justice mechanisms as a means of renewing the moral order and,
in doing so, shaping the comportment of governments and citizens in a post-conflict era. In a
significant departure from the earlier examples, however, most contemporary transitional justice
processes are embedded within wider peacebuilding operations. This configuration has seen
transitional justice rapidly reproduced in a wide variety of contexts with little adaption from a
now standardized model. By deploying a standard form of transitional justice around the globe,
these initiatives reflect the vision of justice and moral order shared by elites from the global governance community and their allies in a newly appointed national government. Moreover, this top-down approach has come at the expense of voices from victims and local communities.

The implication is that transitional justice, as a form of moral renewal, advances the goals and values of high-level state and global governance actors much more readily than it reflects the groups it purportedly represents.

The present chapter reviews transitional justice literature with two purposes. First, the chapter presents an intellectual history of the field, mapping a shifting yet consistent use of transitional justice as a means of moral renewal in countries transitioning from war or atrocity. Second, the chapter documents the merging of transitional justice into a core component of contemporary peacebuilding. I contend that in this role transitional justice has become a powerful tool for advancing the values and governing principles of the neoliberal global order in countries undergoing major political transition.

## 2.2. Pursuing Moral Renewal

Transitional justice became a field of study in the early 1990s in response to investigative commissions created to document the crimes of recently deposed dictatorships in Chile and Argentina. In both countries, former military leaders remained powerful players despite citizen-won transitions to democracy. The continued influence of the ousted regimes and the threat of their reprisal meant criminal trials were impossible in the foreseeable future. Rather than accepting impunity, the new democratic leadership in Argentina, shortly followed by that of Chile, envisaged an alternative form of accountability. Jose Zalaquett was Commissioner to the Chilean truth commission, the *Comisión Nacional de Verdad y Reconciliación*. In his seminal
1989 article, “Confronting Human Rights Violations Committed by Former Governments”, Zalaquett outlined the many challenges of rebuilding democratic principles and rule of law following authoritarian rule. In his reflections, he explained that the aim of establishing a true democracy in the wake of atrocity requires accountability for the crimes of the regime, yet the fragility of transition often makes criminal prosecutions of the former rulers impossible (Zalaquett 1989 reprinted 1990). In response to this dilemma, he asserted that even in a context where impunity is inevitable, the state still has a responsibility to reduce victim suffering by uncovering the truth about past crimes. Zalaquett held truth-telling about the fate of lost loved ones as a minimum requirement of justice after atrocity, reasoning that a truth-telling process can, at very least, acknowledge suffering of victims and their families, and form the basis for reparations and institutional reforms (Zalaquett 1989 reprinted 1990).

Ruti Teitel is credited with coining the term transitional justice as a way to describe the ‘self-conscious efforts of the post-Cold War transitional regimes in Latin America, as [the new democracies] experimented with a new conception of justice’ (Teitel 1997, 2000 and 2008). A body of literature soon developed reflecting on the lessons learned from the original Latin American efforts (Orentlicher 1994; Popkin and Roht-Arriaza 1995; Roht-Arriaza 1995; Mendez 1997). The human rights lawyers and activists writing this foundational literature shared the goal of building a body of jurisprudence that would help secure an inalienable and universal right to judicial action in response to the crimes of authoritarian regimes. Where criminal trials were impossible or impractical, the transitional justice scholarship advocated for fulfilling that inalienable right to justice by establishing non-criminal investigative commissions with extensive
mandates that include recommending reparations and devising reforms to government, security forces and social services.<fnref n="35" />

The human rights activists, commission staff and legal scholars involved in documenting the early Latin American initiatives were motivated by the conviction that transitional justice could, and should, travel abroad to be reproduced globally in the wake of atrocity.<fnref n="36" /> Notable amongst these scholars, Neil Kitz took on the immense task of publishing a comprehensive four-volume compendium of transitional justice jurisprudence written to that date (1995). The volume emphasized the multi-faceted nature of transitional justice by cataloguing past initiatives into ‘pillars’ of the field. These categories included commissions of inquiry, select prosecutions, lustration and purges, and restitution or reparations programs. Kitz’s pillars are still reflected in the list of mechanisms contemporary practitioners consider the cornerstones of transitional justice: truth-seeking, criminal accountability and amnesty, reparation, institutional reform and, added more recently, memorialization and reconciliation initiatives.

Even in the early days, some of the field's forerunners already envisioned transitional justice not merely as an alternative to criminal prosecution, but as a much-needed addendum. In his work

<footnote n="35">³⁵ Velasquez Rodriguez vs. Honduras was a key legal victory for transitional justice proponents. This decision by the Inter-American Court of Human Rights gives the first reference to a 'right to truth' by deeming forced disappearance a form of torture committed by the state against the family and loved ones of the disappeared. This a first major victory for the early Latin American transitional justice advocates would become the basis for many future claims that truth-seeking and investigative commissions are the legal right of victims and the wider political community. In an early piece, written when the field was first building a basis in laws and norms, Mendez and Vivanco explained the active way practitioners developed transitional justice jurisprudence, emphasizing the importance of pulling together different elements of international, regional and domestic law in order to build the case for a right to truth, justice and reparations in the wake of atrocity and repression. (Mendez and Vivanco 1990).</footnote>

<footnote n="36">³⁶ Notably, in the early work of Roht-Arriaza and Popkin, while arguing for the expansion of the field, they already began reflecting on the risks of applying the same processes too broadly beyond the unique contexts where they first emerged (Popkin and Roht-Arriaza 1995).</footnote>
‘Trying the Violators of Human Rights’ Malamud-Goti (1989) explained the distinction between perpetrator trials, which he considered always a form of a victors’ justice, and the holistic vision of accountability possible within a transitional justice approach. Perpetrator trials, he wrote, reflect a political decision focused on displacing members of the old regime. In contrast, the primary aim of transitional justice is to provide victims with a sense that justice is being done and, in doing so, create the foundations for democratic values and rule of law in wider society. Notably, even in this early piece, his argument is premised on the idea that transitional justice serves as a form of moral renewal, deployed to reestablish societal principles destroyed by war, repression or atrocity.

## 2.3. The Turn Towards Reconciliation

The negotiated transition ending Apartheid in South Africa represented a first major reimagining of transitional justice. Rather than framing transitional justice as an alternative to accountability, the architects of the South Africa Truth and Reconciliation Commission (SA TRC) were primarily focused on the potential for transitional justice to serve as a forum for national reconciliation. To a large extent, reconciliation was a new iteration of the same moral renewal efforts seen in Latin American truth commissions. Like the examples before it, South African transitional justice was adopted to re-establish moral standards for society and governance by balancing the responsibility to do justice for the past with the practical imperative of moving forward and rebuilding. As a notable difference, however, the project now aimed to reshape beliefs and reform behaviour on all sides of the conflict rather than clearly setting blame at the feet of a defeated dictatorship.
Archbishop Desmond Tutu, Chairman of the South African Truth and Reconciliation Commission, was an influential proponent of the idea that retributive justice brought little of what a society and, he argued, also victims need in order to leave behind the legacies of unjust and repressive rule. He envisioned a national scale truth-seeking and reconciliation project as the antidote to state-sponsored violence and moral corruption normalized under Apartheid (Tutu 1999). In Tutu's vision, restorative justice was not meant to invalidate victim demands that perpetrators be punished for their crimes. Instead, he proposed truth and reconciliation as an alternative form of punishment that would allow other national priorities to also hold precedence, given the highly tenuous circumstances surrounding the transition to democracy (Minow 1999).<fnref n="37" /> Trials against the architects and henchmen of Apartheid were a dangerously divisive option in a moment when the country could not risk further discord (Amstutz 2005). More to the point, the terms of the transition negotiated between the ANC and the National Party promised immunity to most members of the Apartheid regime. Accepting these constraints, Tutu and his contemporaries proposed restorative justice as a 'principled compromise' that gave up demands for punitive action in exchange for national healing and reconciliation (Dwyer 1999). Of course, there is no universally shared understanding of 'reconciliation.' The scholars and lawyers who designed the SA TRC faced the nearly impossible tasks of defining this future 'reconciled' state and, much more difficult still, devising tools that would bring a deeply divided and incredibly diverse country to that place.

<footnote n="37">³⁷ For Martha Minow (1999) the appeal of restorative justice was that it began looking at criminal regimes and their institutions with a more complex and holistic understanding of how a criminal apparatus operates and maintains repressive policies.</footnote>
From 1995 and lasting nearly a decade, defining reconciliation and envisioning ways it might be achieved was a central project of transitional justice practice and literature. Authors and practitioners presented varying perspectives on reconciliation. Some saw the problem as a process of cultural transformation whereas others approached the question as a philosophical project. Some writers focused on technical measures, recommending policy and institutional reforms, while others cited the necessity of strengthening social movements and civil society. Still others focused on reconciliation as a psychological project requiring various forms of individual and communal therapy.<fnref n="38" /> Some feminist theorists also showed enthusiasm for ‘reconciliation’ as a gender-sensitive alternative to criminal justice. They observed that, unlike perpetrator trials, truth commissions did not require intensive investigative techniques focused on

<footnote n="38">³⁸ Scholars approaching reconciliation as a cultural change were influenced by the work of Johan Galtung and his ‘conflict transformation’ approach to peacebuilding (Galtung 1996). These scholars include Hugh Miall, whose work emphasizes the need to shift public attitudes through transitional justice initiatives, and Louis Kriesberg who writes of reconciliation as a cultural process that requires understanding and overcoming ‘social asymmetries’ resulting in marginalization of less privileged groups (Miall 2004; Kriesberg 2007). A similar approach was advanced by Bloomfield, Barnes and Huyse who write on reconciliation as a process of society learning to share both suffering and collective responsibility (2003). Amongst those more focused on reconciliation as a political process, Hizkias Assefa emphasizes the role of civil society actors in nationwide reconciliation programs while Neil Kritz writes on reforming governance policy as a key contributing factor in reconciliation (Assefa 2005; Kritz 2009). Long and Brecke designed a quantitative study to measure the effects of reconciliation, examining the frequency of ‘reconciliation events’ in post-conflict contexts (Long and Brecke, 2002). The South African TRC President, Alex Boraine, took a more technical direction in his writing on reconciliation, describing a process of constructing a shared history and actively limiting the possibility of denial about the past (A. Boraine 2006). Relatedly, in another set of practical efforts, various NGOs have produced guidebooks on how to promote reconciliation, for example see the Cartias’ handbook ‘Working for Reconciliation’ (Starken 1999). In the field of political science, scholars adapted existing theories of political pardon to the practical challenge of national reconciliation, with Torpey (2003), Griswold (2007) and Douglas (2001) contributing to this topic. Beyond these political theorists, other philosophical and theological writing discuss collective experiences of mercy, forgiveness and acknowledgement as the core of reconciliation (Report of the South African TRC, 1998; Minow 1998; Lederach 1995; Tutu, 1999; Rigby 2001). Psychologist Dan Bar-On writes on reconciliation as a social healing process involving the whole society in a kind of collective therapy (Bar-Tal 2000). Also looking at reconciliation through the lens of psychology, James Gibson gave the contrasting view that truth-seeking is as likely to cement resentment as engender reconciliation (2000). Similarly, Alfred Allan wrote on the traumatizing effects on victims of participating in a national reconciliation process (Allan 2000). South African Brandon Hamber is best known for long term studies with victims on the psychological impacts of truth-seeking, however he also wrote on the psychology of reconciliation during the course of the TRC process (1998).</footnote>
the most degrading aspects of a crime. Approaching justice as a process oriented towards storytelling and forgiveness offered more flexible and supportive spaces for victims of sexual violence and other vulnerable groups (Dissel and Ngabeni 2003; Daly and Stubbs 2006). A further school emerged that approached reconciliation as a communal and cultural process, built around the southern African idea of ‘Ubuntu’, a concept meaning harmony and unity (Allen 1999).<fnref n="39" /> Citing Ubuntu as a community-oriented approach to forgiveness, authors imagined that pardoning perpetrators was an empowering act for victims that could simultaneously heal society and form the basis of a new civil order (Kiss 2000; Llewllyn and Howse 1999; Boraine 2000). The common thread joining all these approaches was a sense that the apparent tradeoff between justice and peace made in a transitional justice process need not be seen as a sacrifice so much as an opportunity to move the political community forward by gaining the benefits of national reconciliation and healing.

Although reconciliation focused transitional justice originally appealed to psychologists and social workers, their enthusiasm diminished by the late 1990s when the world had witnessed enough transitional justice processes to begin studying the long-term impacts of participation on victims (Hamber 1999). Researchers found that reconciliation places an incredible moral and emotional burden on victims and their loved ones. For the sake of the wider community, victims are encouraged to face and even forgive perpetrators in exchange for abstract promises like

<footnote n="39">³⁹ Quoting Allen: “Giving victims an opportunity to tell their stories demonstrates that they are now admitted to the category of responsible agency from which the predecessor regime attempted to exclude them. It is a form of recognition that acknowledge the historical fact of exclusion from legal recognition and seeks to reverse the imposition of passive status by encouraging victims to act in public by telling their stories.... a kind of public ritual of recognition of the moral agency of those previously excluded - a public marker of these citizens' rightful passage into equal consideration and respect" (Allen 1999). Allen's is a claim about the power of feeling accepted through public performance. He understands reconciliation as an emotional response that comes when a victim feels the sympathy and acknowledgment of public officials and other community members. Also see Roman and Choi 2009 on reconciliation as a political outcome of public performance.</footnote>
forgiveness, healing and national reconciliation (Gutmann and Thompson 2000). In an overview
of psychological reports and ethnographic case studies about victims' experiences with truth
commissions, Mendeloff concluded that at least 70% of victims reported feeling let down by the
process and approximately half regretted their participation (Mendeloff 2009). His research
revealed that, although many victims reported positive feelings immediately after participating in
a truth commission or similar measure, these effects were short-lived and often followed by
feelings of abandonment and renewed trauma. In the medium to long-term, where reparations
and psychological care were not made available (and, in practical reality, these supports rarely
are), many victims reported feeling betrayed and more isolated than they had prior to
participating in transitional justice (Mendeloff 2009. Also see Hamber 2002-2003; Hamber,
Nageng and O'Malley 2000; Gibon 2004; Theidon and Laplante 2007).

As these studies suggest, transitional justice efforts have limited measurable impacts when it
comes to improving the lives of victims. These critical pieces give empirical evidence of
something already implicitly observable in the transitional justice model; namely, that victims'
wellbeing is a secondary concern. Victims' lives do not radically change by participating in
transitional justice. Had that been the primary aim, the field and the mechanisms it deploys
would have developed in quite different directions. The focus may be on victim experiences, but
these processes are about moral renewal for the wider political community. The purpose is to
reestablish right and wrong, and not merely by naming and shaming members of the last regime.
Transitional justice sends a message to all citizens about the societal and governance changes
and commitments needed to establish a more just society. Victim testimony to a truth
commission is not merely – I would argue, not mostly – for the sake of a victim's own sense that
justice is being done. It is a symbolic expression of the sacrifice a nation accepts in order to leave
the past behind and establish a new moral order.<fnref n="40" /> The main innovation of the reconciliation school was to treat that sacrifice as its own form of justice, claiming it opens the possibility to a more holistic kind of redress that can only come from reconciling and renewing the political community. In other words, in this configuration moral renewal, itself, became the ‘justice’ of the transitional justice model.

## 2.4. Merging Fields: Peacebuilding and Transitional Justice

In the post-Cold War era, the notion that transitional justice could help end conflict while renewing moral order resounded in the international community. Transitional justice, advocates declared, could end cycles of violence after egregious atrocity, found a new era of democracy and even achieve a certain form of justice while doing so. With the collapse of the Soviet Union, global governance institutions based in Western democracies gained unprecedented authority and influence to determine a new world order. By the late 1990s and early 2000s, these institutions and their leaders struggled with a new challenge posed by devastating and horrifically violent civil wars that erupted in the wake of a shifted geopolitical order. As chief prosecutor at the ICTY, Justice Richard Goldstone famously wrote that transitional justice “removes history as a point of contention among former adversaries, allowing them to work together constructively in new a power-sharing arrangement” (1996). Goldstone’s rearticulation of transitional justice

<footnote n="40">⁴⁰ Hannah Arendt made a similar observation in her account of survivor testimony during the 1961 Eichmann trial in Jerusalem. Even in this early example, she notes that survivor testimony was selected, not to tell their experiences or because it was relevant to the case, but to tell a founding narrative for the Israeli nation. She explains that the majority of witnesses came from Poland and Lithuania, giving testimony of Auschwitz, Treblinka, Chelmno and Majdanek. Only four witnesses came from Theresienstadt even though it was the only camp where Eichmann had considerable authority. Prosecutor Hauser stated that survival had earned these witnesses the right to be ‘irrelevant’ to the case and called his witness selection a ‘picture painting’ exercise (Arendt 1963).</footnote>
illustrates that peace-making between former belligerents, not reconciliation or victim rights, became the stated aim of national scale transitional justice efforts during the post-Cold War era. As one piece in a wider peacebuilding strategy, diplomats and international legal experts in the late 1990s onwards deployed transitional justice as a negotiating tool to help convince warring factions to come to the table and seek political solutions to their military disagreements (Boraine 2000).

In the years immediately following the collapse of the Soviet Union, failed humanitarian interventions in Rwanda and Bosnia prompted a reassessment of the diplomatic community's peacekeeping strategy. Kofi Annan's UN Secretary-General 1992 Report, *An Agenda for Peace*, made 'peacebuilding' a mainstream concept in the international community. The report declared that the UN would shift its focus from managing ceasefires into a long-term commitment to consolidate peace and initiate rebuilding after war. The shift introduced a holistic approach to peacekeeping that would take on the complexity and the long-term challenges of managing nation-scale military interventions and humanitarian emergencies in post-conflict contexts.

There is significant crossover between prominent United Nations officials and high-level transitional justice practitioners, and this was the case from the first days of the field.<fnref n="41" /> During the early 1990s, in his role as the United Nations Special Rapporteur on Restitution, Compensation and Reparations for Gross and Consistent Violations of Humans Rights, Theo

<footnote n="41">⁴¹ UN Conventions played a significant role in building the field. Of particular importance, the Geneva Convention and its additional protocols are key original sources for building transitional justice jurisprudence and practice. Of particular note, see “Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field” (1950). Also, the Convention for Armed Force at Sea (1950), the “Geneva Convention Relative to the Treatment of Prisoners of War” (1950) and the “Geneva Convention Relative to the Protection of Civilian Persons in Time of War” (1950).</footnote>
Van Boven played an important role adapting the Latin American experiences to a global practice. A second major contribution came from Diane Orentlicher who, in 2004, was appointed by the UNHCR as an Independent Expert to update the Joinet 'Impunity Principles' on the rights to reparation, accountability and non-recurrence after atrocity (Orentlicher 2005; Joinet 1997). Her work transformed Joinet's more philosophical piece on emerging jurisprudence into a policy-oriented document outlining the rights and obligations expected from international law in the aftermath of war or atrocity.

By the mid-2000s, a global network of lawyers and transitional justice experts was deployed internationally across UN missions and operational sites. This is referenced in Kathryn Sikkink's term 'justice cascade' describing a new status quo where heads of state can no longer count on impunity in the face of a global accountability network (Sikkink 2011). In El Salvador, Guatemala and Haiti, UN experts lead truth commissions and other judicial initiatives within coordinated peacebuilding operations (Laplante 2008). In Sierra Leone, Liberia and Timor Leste, the UN deployed transitional justice as a bargaining piece during peace talks, trading effective impunity for truth-seeking and an end to war. In Kosovo, the UN worked with transitional justice experts to organize trials and truth-telling efforts along with vetting and reform programs for the local judiciaries, police and prison services. Reflecting these developments, a 2004 report to the General Assembly by UN Secretary General Kofi Annan described transitional justice as a guarantor of global peace and declared that transitional justice should have a central role in all future UN Department of Peacekeeping Operations (DPKO) missions.

Annan's optimism that transitional justice would be an important contributor to the wider aims of global peacebuilding was not unfounded. Transitional justice opened a middle road that permitted compromise between warring factions without ignoring the demands of victims and
their communities. That said, including transitional justice in peace negotiations provided political and military leaders with blood on their hands the opportunity to participate in post-conflict governance. A pattern emerged of powerful actors relying on transitional justice as a soft option for addressing citizen demands for accountability. Snyder and Vinjamuri (2003) express this succinctly,

> "Elites adopt truth commissions and other accountability strategies as much for political cover as for any other reason, in order to give legitimacy to less human rights-friendly policies that enable more hard-headed bargaining to proceed."

Transitional justice became a way for actors from all sides of a conflict to demonstrate their commitment to rule of law and justice without disturbing the status quo or exposing themselves to the scrutiny of judicial institutions (Tepperman 2002). Through transitional justice, yesterday's belligerent became today's peacebuilders, gaining recognition from the international community and the subsequent benefits of donor support.

This approach to transitional justice – a crude trade of peace for impunity, with some form of truth-seeking added on the end – is referred to as ‘peace for justice’ or ‘truth for justice.’ The idea that truth-telling is a sufficient stand-in for justice within a peace agreement was always an uncomfortable compromise and is rarely accepted today as a legitimate transitional justice practice, even amongst the most pragmatic practitioners. Moreover, international legal norms no longer permit amnesty for war crimes, meaning any national level amnesty can be overruled in a
regional or international court.<fnref n="42" /> In practice, regimes still design transitional justice processes that include amnesties, but in the broader field, ‘peace for justice’ is a settled debate.

Although the field has moved on from the core dilemma ‘peace for justice’ once posed, the approach reshaped the practice of transitional justice in ways that never shifted back. Adopting transitional justice into peacebuilding meant the design and scope of these institutions became matters codified in peace settlements and negotiated by powerful actors. Questions regarding the scope or type of justice needed, or the sacrifices victims are expected to make for the sake of peace, became issues in a wider dossier negotiated between high-level representatives of the state and the diplomatic community. In the original Latin American and South African examples, transitional justice was a response to pre-existing settlements. In that sense, it was an effort to make morally untenable concessions already made in the name of peace more acceptable to society and to victims. I am not claiming that original model offered victims better settlement terms: the original model responded to settlements that included no justice. Victims’ groups and civil society actors adopted transitional justice in hopes of changing that reality, even a small amount. Including transitional justice in high level discussions, from the start of a

<footnote n="42">⁴² Amnesty was most famously assigned by the South African TRC however it was not alone in this practice. Notably, the amnesty laws that accompanied truth commissions in South Africa, Argentina, Chile, Peru and El Salvador were part of a peace agreement that preceded the decision to hold a truth commission, with the commission designed as a step towards justice in the face of practically and legally imposed impunity. In these examples, excluding only South Africa, amnesty laws were since challenged and revoked. After the South African TRC, amnesty and truth commissions merged into a single process. Official or effective amnesties where also agreed to in the Sierra Leone, Liberia and Timor Leste truth commissions. Although these were widely celebrated cases at the time as examples of successful peacemaking through transitional justice, these are also cases of the ruling class trading victims’ rights to justice in exchange for the end of conflict. This is not necessarily an illegitimate trade, but it clearly requires serious reflection on what kind of grave risks face society as a whole that would merit denying victims their right to justice. The ongoing Gambian TRRC is currently granting amnesties to perpetrators of war crimes in exchange for full confessions. The TRRC offers victims minimal consultation and no veto over these decisions. In a context where the former regime has no political power and there is no threat of a return to violence, this practice is morally dubious, at best. Notably, amnesty has a different and more controversial standing in law than a reduced sentencing agreement or plea deals, such as those adopted in the Peace and Justice Act negotiated during the Colombian peace process.</footnote>
settlement process, can unquestionably advance justice in ways that were impossible in those
original examples. That said, as a major contrast from these earlier examples, victims and civil
society activists are no longer the main drivers behind the design and implementation of
transitional justice. The mandates, mechanisms and objectives of contemporary transitional
justice are determined by government actors and by representatives of the international
community, in accordance with established global standards and best practices. Victims and
civil society groups are consulted at a later stage about how their interests and concerns fit within
that model. Setting aside the question of whether this leads to better or worse outcomes for
victims and citizen groups, it certainly produces profoundly different outcomes and makes
transitional justice a fundamentally different experience for those participating.

2.4.1. The ‘Tool-Kit’ Approach

Merging transitional justice with global governance produced a shift in transitional justice scholarship towards more instructive works focused on the ‘how-to’ of post-conflict justice-seeking (Brahm 2009; Abrams and Hayer 2002; Crocker 2000; Husye 1995). Priscilla Hayner wrote the much-cited article “Fifteen Truth Commissions” soon followed by her book on the same topic (Hayner 1994; Hayner 1996; Abrams and Hayner 2002; Hayner 2001). The two works compared past truth commissions with most of the text devoted to listing the criteria Hayner considered necessary in a legitimate and well-implemented process. Mark Freedman followed with his own contribution to the technical literature with the publication of “Truth Commissions and Procedural Fairness” (Freedman 2006). The book gave clear and easily transferable instructions on the legal procedures he deemed necessary in a truth commission. In these and similar volumes, technical experts created a succinct set of instructions aimed at helping governing elites, UN staff and NGO partners to reproduce transitional justice anywhere
in the world (Freedman and Hayner 2003; UNHCR 2006; ICTJ 2013; Grieff 2006). The ‘tool-kit’ approach to transitional justice created an explosion of handbooks and pamphlets outlining the best practices needed to gain international recognition as a creditable and legitimate transitional justice mechanism.

The shift towards technical assistance came at the expense of victims’ activism and involvement.

In the ‘tool-kit’ model, expertise comes from outside in the form of expensive consultants who can boast little local knowledge but much general experience navigating international organizations and high-level policymaking circles. Critics warn that the field now follows a cookie cutter approach, reproducing transitional justice initiatives rapidly and across a broad array of contexts by overlooking key aspects of local history, conflict dynamics and victim experiences (Colin 2008; Pensky 2008; Tepperman 2002; Mendeloff 2004). As McAdams writes,

> "...The challenge of reckoning with the past is not like a fancy buffet, where one pauses to review a menu of options and then chooses the most attractive dishes: 'I'll take two truth commissions, one short trial, but no property issues, thank you.' If only the challenges of governance were this easy!" (McAdams 2011)

Rama Mani further explains that transitional justice now appears in a huge diversity of contexts while making only minor changes in the original model: "In its eagerness to promote transitional justice", he writes,

> "...the international community has a tendency to simplify the complex claims of rectificatory justice in low-income post-conflict societies, and to search for a single
definitive solution that could be applied, with minor adaptation, across disparate cases”

(Mani 2005)

Likewise, for Christine Bell, approaching post-conflict justice as a 'toolkit' of possible activities means ignoring a vast number of widely varying conceptual and political dilemmas; challenges that cannot be resolved by reducing transitional justice to a list of technical options (Bell 2009). Standardization means that transitional justice is rightly criticized for presenting blanket solutions to complex and context specific problems. Despite these critiques, the 'tool kit' approach remains prolific, in large part because it is so well-suited to the current trend of embedding transitional justice within peacebuilding missions. As a standardized tool of moral renewal, transitional justice signals a national commitment to liberal principles like human rights and individual freedoms, but it also leaves complex political dilemmas like inequality, structural violence and economic crimes off the agenda. That is to say, transitional justice is deployed within a peacebuilding operation to address crimes that are clearly connected to longstanding economic and structural injustice, yet the mechanisms – by applying a standard toolkit – overlook complex social justice demands in favour of political and physical crimes.

## 2.1. Critical Responses

This brings us to the critique that transitional justice approaches the challenge of doing justice for the past in ways that divide violations and victimhood from broader oppression and structural violence. Mahmood Mamdani (2002) published his critique of the South African Truth and Reconciliation Commission soon after the TRC's report was released. In the piece, Mamdani identified the TRC's lack of consideration for economic and social crimes as a fundamental failure of the transitional justice model. In his view, the report downplayed the economic and
structural consequences of Apartheid. It focused on the conflict between “a fractured political elite” when the greatest crime of Apartheid was creating and maintaining a racist governing apparatus that prospered by repressing the majority population. He argued that the true challenge of building a new South Africa was not reconciling victims of political crimes, such as torture and assassination, with their perpetrators. Moving beyond the past would instead require overcoming the deep injustices that endured between the beneficiaries of Apartheid and the population oppressed by that political system.

Zinaida Millar (2008) expanded on Mamdani’s critique, contending that, as a consequence of its blindness to the economic or social history of conflict, transitional justice actually contributes to structural injustice. For Millar, separating strategies for economic redistribution, land reform and structural reforms from transitional justice helps perpetuate the myth that “the origins of conflict are political or ethnic rather than economic or resource based.” In her argument, allowing this myth to go unchallenged advances an “entrenched ideology of elites” that pretends the history of economic oppression is disconnected from the specific human rights violations documented by a transitional justice process.

For Mana Rami, the consequences of leaving structural and economic injustice unaddressed in transitional justice processes are easily identified:

> “The trends are well documented in South Africa, Guatemala, Haiti or Kosovo, levels of criminal violence and consequent homicide after the purported transition to peace exceed those during the violent conflict, meaning before ‘peace agreements’ were concluded or transitions occurred” (Rami 2008).
Without making an explicit claim to a causal connection between increased criminal violence and transitional justice efforts, his piece notes that crises of criminality and social violence in post-conflict settings have grown ‘apace’ with the global transitional justice movement. In other words, for Rami, peace and justice efforts that leave the structural roots of conflict unaddressed merely transform the violence of war into new kinds of exploitation and conflict. By removing structural injustice from the peace and reform agenda, transitional justice played a central role transforming political violence into ‘criminal’ or ‘social’ violence.

Rami, Miller and Mamdani helped grow an emerging body of critical literature by authors concerned that transitional justice contributes to securing or consolidating the power of elites and, at times, also neo-imperial interests in post-conflict environments (McGovern and Lundy 2008). We need not look far to find examples of transitional justice deployed to advance democracy and liberalism (or, as I contend, *neoliberalism*) in territories conquered by western world powers. As Lundy and McGovern write,

> "... [transitional justice projects] are directed at reconstituting post-conflict societies in the image of western liberal democracies, establishing this model as the ideal type and setting externally defined limits to the field of permissible action."

Examples of this liberal democratization project were seen during the US invasion in Iraq and the coalition occupation of Afghanistan. High-level policy makers in international organizations and governments adopted the discourse of transitional justice in these military campaigns to justify intervening in ‘failed statehood’ (Bell, Campbell and Aolain 2007). In these examples, contemporary transitional justice took on neo-colonial undertones as a civilizing project deployed to correct morally bankrupt governments and rebuild in the image of western liberal democracy (Bell and O’Rouke 2007).
That moralizing effect of transitional justice advances liberalism and, more specifically, a version of liberal ideology that discounts the significance of the economic and social context surrounding conflict. In this regard, transitional justice does not simply align ideologically with liberal principles, it reflects the aims of neoliberal governance. Transitional justice advances those aims within a national process of moral renewal, deployed in a political community to re-establish moral standards for governance and social order. That moral renewal project renders transitional justice a powerful tool of neoliberalism by doing the ideological work of legitimatizing governance that is diverted away from citizen demands and towards elite interests.

## 2.2. Conclusion

Within the transitional justice model, citizen demands for major structural reform and redistribution are set aside to instead address political and physical rights violations. This was a characteristic of transitional justice from its origins however the consequences are much more pronounced in contemporary contexts than in the original examples seen forty years ago. This is because the nature and the root causes of systematic human rights violations transitional justice addresses have much changed during that period. Today transitional justice is most often adopted after largescale civil wars in low-income and high-inequality countries. These wars can result in direct victims numbering in the hundreds of thousands, the majority of whom experience physical violence as intrinsically connected to ongoing and often extreme poverty.

The type of perpetrators leading this violence are also different, as is the nature of their crimes and the impacts of those crimes on the prospects of peace and reconciliation. Only a minority of victims in a contemporary transitional justice process testify about hidden crimes, committed on
orders from an established security apparatus, within a wider system of state repression. Truth
commission mandates are still written with that image in mind and these stories remain a
disproportionate focus of their work, but this reflects adherence to an old model rather than the
realities of contemporary conflict. Today victims are more likely to speak of horrific and often
intentionally visible acts, committed by loosely associated warlords, militias, neighbourhood
defense groups, rogue security forces and various other actors, many of them joining the violence
for profit or to settle scores.

The aim of transitional justice, from its origins, was to find a moral and just response to past
violations that would ensure victim suffering is corrected and can never happen again. In the
earlier contexts, that goal was significantly advanced by investigating and – when possible –
punishing key perpetrators within a military or police apparatus. This is because the approach
had the direct impact of exposing and dismantling structures of repression in these contexts. The
same model is a poor fit within the chaos and social collapse of most contexts where transitional
justice is applied to today. Truth commissions repeat horrors that are already well-known and
shame individuals who often glory in their own brutality or, on the other extreme, who acted in a
context of such chaos and terror that commissions get caught in the polemics of deciding who is
really a perpetrator and who is a really victim.

More importantly, the tendency of the transitional justice model to look for the victims and
perpetrators of earlier contexts in current cases is problematic because it has produced a
transitional justice approach that often hides more than it reveals about the structures and
beneficiaries of contemporary conflict. Behind the overt violence there is a political and
economic class who manage governance and the business sphere in ways that first created and
then profit from a context of violence and repression. These people are often impossible to link
with atrocities happening on the ground. They are seldom directly involved; they merely create
and benefit from those circumstances, while others fight over the resultant injustice and social
breakdown. By consequence, this elite class is hidden in plain sight by the blind spot of the
transitional justice model on matters of structural violence and social injustice.

Transitional justice is a process of devising resolutions and reforms needed to correct the past
and ensure it never happens again. Considering that aim, its work ought to focus foremost on the
elite class standing behind the overt horror of war, regardless of whether those are the direct
perpetrators of human rights violations. As the architects and beneficiaries of structural
inequalities and social injustices that result in the kind of social collapse seen in modern civil
war, exposing and dismantling that system would get much closer to achieving the stated goals
of transitional justice than is possible within the current standardized model, framed within the
narrow parameters of the human rights approach. In practice, transitional justice does not just
fail to expose the culpability of elites in creating violence and repression, the model is easily
leveraged to legitimize and re-establish their dominant standing in society. In its current
applications, transitional justice is deployed to hide the architects of structural violence and
protect the beneficiaries of grave social injustices at the root of the conflict. As such, it has
become a means for advancing neoliberal restructuring in postwar contexts by securing elite and
financial interests during the transition and undermining citizen demands for transformative
reforms and redistribution. The following chapters illustrate this process through a case study of
the civil war and subsequent transitional justice process in Côte d'Ivoire.
# 3. Rewriting Inequality as Ethnic Conflict

## 3.1. Introduction

Testimonies gathered by the Ivorian national truth commission are filled with accounts of youth gangs from opposing ethnic groups attacking and pillaging urban neighborhoods and rural villages. These are stories of irrational blood lust, spurred by hatred of an ethnic 'other'. By framing the conflict narrative in this way, the truth commission pushed the moral obligation to do justice for the past off the ruling class and onto the wider population. The CDVR did this by addressing Ivorians as xenophobic people who must atone for their intolerance. That narrative excused the business class and ruling elite for their role creating an oppressive political and economic governance system that, long untenable, finally broke down into civil war. The truth commission, however, avoided serious consideration of the structural injustice and longstanding oppression that drove the country to war in the first place. With its focus on horrific scenes of ethnic violence, the CDVR depicted a country crippled by illiberal hatred and saved by the willingness of a cosmopolitan ruling elite to reconcile. Moreover, it perpetuated the image of the
new regime as one committed to development and stability, charitably helping a population of
would-be *genocidaires* atone for their terrible past by launching a nationwide transitional justice
project.

As we will see in the coming pages, the discourse of ethnic war and the perception that youth
were the primary instigators of violence misrepresent both the nature and causes of the conflict.
This reframing of the past was deployed by the ruling class, through the work of the national
truth commission, to deflect their responsibility for the civil war onto the masses and to
legitimize a national reconstruction process made by and for the country's wealthy elite. Since
ethnic hatred is always a detestable justification for violence, the only obligation this account
demanded of the new government was to re-educate an intolerant population. Rewriting a long
history of struggle and oppression as an ethnic war thus exempted the new regime from
addressing the root causes and consequences of conflict. If longstanding structural injustice were
recognized as the root cause of conflict, fundamental and legitimate grievances stemming from
that experience would need to be addressed in order to do justice for the past and prevent future
unrest. Addressing such grievances would require major institutional reforms and redistribution
of wealth, resources and opportunities. By perpetuating a narrative of ethnic war at the CDVR,
the ruling class avoided demands for serious structural reform. Not only that: this narrative also
ensured that building a better future was articulated as helping the masses learn tolerance and
reconciliation. Accordingly, the responsibility for achieving that better communal life was
transferred off the elites and onto the wider, ostensibly intolerant, population.

Focusing on ethnic hatred as the driver of conflict is one of the clearest ways transitional justice
advances a neoliberal moral order in post-conflict contexts. Masking the structural injustice and
economic reasons for the country's collapse behind a narrative of xenophobic violence ensured
that, as a new liberal democratic regime, the Ouattara government was under no moral obligation
to address the demands of an ostensibly racist population. A just national reckoning for the past,
instead, became a project of ‘responsible’ ruling elites overruling the impulses of the ‘intolerant’
population. The Ouattara regime’s neoliberal reform agenda exacerbated the root causes of the
conflict, deepened the concentration of wealth in the hands of a small economic elite, and hurt
communities already struggling in the aftermath of a decade long civil war. Yet the way
transitional justice framed responsibility for the conflict and, by extension, the moral obligation
to right past wrongs, meant that this reconstruction agenda was celebrated as the work of a good
government, committed to citizen well-being. The transitional justice process, in this way, built
a new moral order in Côte d’Ivoire that cast the Ouattara government as a liberal democracy,
committed to good governance, even while it redirected governance towards rapid economic
growth and freeing markets, at the cost of worsening poverty for the majority population.

3.2. The Ivorian Land and Labour Conflict

Colonial rule in early twentieth-century Côte d'Ivoire played an important role constructing
contemporary ethnic categories and giving those categories political salience. Under French rule,
Côte D'Ivoire was governed by a policy of indirect colonization called the *Indigénat*. Although
the *Indigénat* was portrayed as a form of accommodation to local custom and traditional
governance, in reality it established and consolidated a tiered legal regime in which different
rules and rights applied to Africans as compared to Europeans (Loucou 2012, 112).<sup>43</sup> The policy was successful in part because it exploited the willingness of some traditional leaders to use the colonial presence as a means of settling pre-existing power struggles. Thus, in administering the *Indigénat*, colonial overlords relied on local chiefs ready to collaborate with them, and replaced those who resisted with more cooperative allies (ibid).

To increase revenue from its most lucrative West African colony, French authorities set up plantations throughout the fertile Western region by importing migrant labour from the arid North and from Upper Volta (today's Burkina Faso, Guinea and Mali). The West of Côte d'Ivoire is the traditional homeland of the Krou, an ethnic subgroup including Bêté, Dida, Wê, Kroumen and Guère peoples. The West is also the heart of the cocoa, coffee and rubber industries, making the practice of replacing traditional leadership with nobles sympathetic to French authority most heavily practiced in that region (ibid, 260; Chauveau 2000). The so-called 'Baoulé-French compromise' refers to a colonial governing strategy that secured resource exploitation for the French by handing over local authority and industry management in the fertile West to landlords from the monarchic Baoulé ethnic group based in the centre-East. Notably, Côte d'Ivoire's celebrated first President, Félix Houphouët-Boigny (FHB), and the majority of his governing class were Baoulé industry leaders-come-politicians who grew to prominence thanks to their ethnic group's privileged standing under French rule.

<footnote n="43"><sup>43</sup> Indigénat laws included punishments for refusal to pay colonial taxes, refusal to participate in forced labour (12 days a year were required of all adult men), disrespect of European 'agents', prohibition on any speech, song or story disrespectful to a French or European representative and the prohibition from opening any school or religious space without colonial permission.</footnote>
The French colonial overlords also had a special, though more exploitative, relationship with the Sahel nomadic groups encouraged to migrate from northern lands to labour on plantations in the West. In Ivorian parlance, these peoples are often grouped together under the language category ‘Dioula’ or simply under the somewhat pejorative term ‘Northerners.’<fnref n="44" /> An ever-increasing stream of northern labourers was necessary to continue expanding the lucrative plantation system in the West. Colonial administrators took advantage of the vulnerabilities Dioulas faced as foreigners working manual labour in the traditional Krou territory (J. P. Dozon 1997). Displaced from their homeland and granted less rights than the locals, migrant workers were considered more compliant and dedicated labourers than the Krou inhabitants. The colonial administration also valued the Dioula for their traditional role as regional traders. Dioulas served as commercial agents for the early circulation of European goods in local markets and were relied on as mediators between European entrepreneurs and local communities (Cutolo, 2010, 537).

The success of the colonial planation system depended on a double act of exploitation in the Western region. Dioula labourers were exploited with low-paid, uncertain living conditions and precarious work. Yet the system equally depended on expropriating land from Krou communities in the region. To sustain that system of double-exploitation, and thus continue expanding the lucrative cocoa industry, the colonial administration devised a land policy that has remained a source of deep tensions to this day. In 1935, in a move to consolidate its foreign control, the

<footnote n="44">⁴⁴ A ‘Northerner’ is a term often used to encompass Dioulas, Malinkes and Burkinabes, regardless of whether they are migrants or born to Sahel communities indigenous to Côte d’Ivoire. While Côte d’Ivoire has a large population of migrant workers from outside today’s borders, there are equally Sahel communities dating their presence in Ivoirian territory back to the 12th century. There is no historical basis to the claim that these Senufo, Malinke and other Sahel groups are ‘less indigenous’ to Côte d’Ivoire than the Southern ethnicities. Indeed, the southwestern Krou groups were themselves migrants from the West, much like the southeastern Akan migrated from present day Ghana. There is thus an implicit offense in the term ‘northerner’ as it can imply that all people from Sahel regions, even those descended from groups who have lived in Côte d’Ivoire for centuries, are foreigners.</footnote>
colonial administration declared that all land left unused for 10 years would become state property. The policy put pressure on chiefs and their communities to transform ‘la forêt noire’ [uncut forests] as quickly as possible into cocoa and coffee plantations (later also pineapples, palm oil and rubber). In its official wording, the declaration gave original occupants the opportunity to transform their status as traditional owners into legal deed holders. In practice, the process of declaring landownership was bureaucratic difficult and based on foreign laws and values. It is unlikely the colonial regime ever expected the *autochthone* population to participate in the administratively complex process of securing a deed. Instead, the declaration effectively forced westerners to loan their land at a much faster rate to regional migrants in order to keep their claim as landholder and inhibit the colonial state from repossessing it as ‘unused’ plots to be reallocated to agribusiness (J. P. Dozon 1997; Chauveau and Bobo 2003).

While the Krou traditionally lived from sustenance farming, the newly cleared lands and their migrant labour force produced cocoa and coffee for sale in European markets. Foreign agribusinesses were granted special privileges by colonial administrators, benefiting from trade incentives and assistance provided by the French authorities (Loucou 2012, 123). Most phases of commercial cocoa production – collection, transport, storage and shipping – were privatized early in the colonial period, meaning these sectors were firmly in the hands of foreign entrepreneurs at the time of independence in 1960. In that year, foreign investors controlled 50% of the Ivorian economy, and France received 65% of Ivorian exports while providing 74% of imports (Loucou 2012, 141 & 153). In the years that followed, Houphouët-Boigny's Franco-oriented governance policies consolidated the economic dominance of French businesses and entrepreneurs in Côte d'Ivoire.
At decolonisation, the French authorities handed the property rights for most of the national territory to the new independence era government. Effectively, this made the central government the landlord of most citizens in Côte d'Ivoire (Boone 2007). The significance of this land transfer is a complex but crucial feature of Ivorian politics even today. First, it should be noted that Houphouët's *Parti Démocratique de Côte d'Ivoire* (PDCI) was neither democratic nor was it originally a political party. The PDCI was the descendent of Côte d'Ivoire's first labour syndicate, the *Syndicate des Agricultures Africaines* (SAA). This was a colonial era labour union formed by successful Ivorian plantation owners who unionized to defend their trade and land rights in the face of foreign competition. The SAA was the product of colonial policies that had supported the development of a small but wealthy economic elite made up of Ivorian – primarily Boualé – plantation owners and industry leaders. In 1960, when the French transferred authority to the Ivorian people, they handed power directly to the PDCI: an oligarchic political party formed from the SAA and headed by cocoa industry tycoons. Under Houphouët-Boigny's leadership, the PDCI ruled Côte d'Ivoire for the next thirty years as a one-party state.<fnref n="45" />

Once in power, the new PDCI government revitalized colonial era policies aimed at growing the agricultural sector by all available means. Houphouët-Boigny announced his own version of the colonial land law in a 1962 Declaration proclaiming, "*la terre appartient a lui qui met on*

<footnote n="45">⁴⁵ Independence era PDCI elites accrued vast wealth in the cocoa and coffee industries thanks to tight controls exerted over Ivorian agriculture by the dominant role their syndicates played in Ivorian politics (i.e. the PDCI party itself was one such syndicate). The syndicate system was not limited to agribusiness, however. By 1952, nearly a decade before independence, there were 22 syndicates across Côte d'Ivoire representing 63% of the state economy (see Loucou 2012). The syndicate network reached into the core of each industry, controlling production and trade down to the level of the individual workers themselves. Building on the colonial administration, Houphouët created a complex patronage system that combined the state bureaucracy and the syndicates within it. The result was a vast patronage network connecting each rural farmer or urban labourer, through syndicates and bureaucrats, direct to the authority of President Houphouët-Boigny.</footnote>
valeur” [the land belongs to he who works it]. The declaration met with such resistance in the National Assembly that it technically never entered Ivorian law. Nevertheless, Houphouët’s authority was so absolute that the decree held the character of law in the eyes of many Ivorians and foreign businesses. In a second famous decree, President Houphouët characterized himself as a Pan-Africanist paternal figure, welcoming ‘brothers’ from all other French West African states to ‘share a life in common, here in Côte d’Ivoire’ by coming to fell the lush Western forests and cultivate the land (Dembélé 2002 in Cutolo 2010; Chauveau 2000; Losch 2000).

Together, the two declarations amounted to reviving the former colonial policy of giving western indigenous communities the choice between land expropriation by the state or inviting northerners to cut virgin forests and cultivate the land under customary tenancy bonds. This resulted in an alarming rate of expansion of the agricultural sector, with 90% of the country's woodland deforested in the half century following independence.<fnref n="46" /> Effectively, President Félix Houphouët-Boigny had re-established in the independence era, the double act of exploitation at the heart of the ‘Baoulé-French compromise’. Under his rule, French and Boualé industry elites shared the significant profits of a booming agricultural sector, while migrant labourers endured precarious working conditions and Western *autochtones* could do little to prevent their traditional lands from being expropriated for cocoa cultivation.

Houphouët and his ruling elite thrived by establishing an internally-contradictory property rights system that pitted migrant workers against indigenous westerners. In his speeches, Houphouët generously invited workers from Mali and Upper Volta (now Burkina Faso) to come share the

<footnote n="46">⁴⁶ Following the boom of agribusiness in 1950, 16.5 million hectares of forest were cut in Côte d’Ivoire. This deforestation rate was one of the highest in the world during the 50 years following independence. The situation is unimproved in recent years: from 1990-2015, Côte d’Ivoire had the world’s single highest deforestation rate according to the UN FAO (Food and Agriculture Organization of the United Nations, 2016).</footnote>