Chicago Journal of International Law

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This Article argues that transitional justice, by increasing efforts to include corporate accountability within its various mechanisms, may confront the global structures of rule that systematically produce conditions of violence within formerly colonized nation-states. Building on work by Giorgio Agamben and Homi Bhabha, I demonstrate that the very notion of a “transition” around which transitional justice is articulated derives from a nineteenth-century understanding of history that reflects the ideology of development which supported the colonial system. Moments of violent historical discontinuity, legally conceptualized as “states of exception,” provide the paradigmatic bases for models of transitional justice. But, in the history of the postcolony, this state of exception functioned as the generalized rule for governance. Accordingly, following scholars Achille Mbembe, Laurel Fletcher, and Harvey M. Weinstein, transitional justice must adopt an ecological approach that embraces the lived historical experience of the postcolony, including its unique structures of governance. The history of Sierra Leone provides a case study of how the legacy of colonial governmentality persists in the present global order, creating the kinds of atrocities that transitional justice aims to remediate. Specifically, the colonial model of indirect rule has become reconfigured such that the postcolonial government secures legitimacy by meditating between local populations and non-state actors, including transnational corporations. To restructure these relationships effectively, transitional justice must, therefore, engage with the ongoing work toward corporate accountability. By advocating for legally binding mechanisms addressing corporate impunity and incorporating the U.N. Guiding Principles into the work of Truth and Reconciliation Commissions, transitional justice can further advance its core objectives and the movement toward corporate accountability more generally.