This project will focus on the general critiques leveled against transitionaljustice and its prioritization of civil and political rights over economic and social rights. In addition to these critiques, there is a growing body of feminist critical scholarship that examines the way transitionaljustice mechanisms have failed to adequately address crimes of sexual violence against women. See for example, Karen Engle, “Feminism and its (Dis)contents: Criminalizing War time Rape in Bosnia-Herzegovina,” The American Journal of International Law 99, no. 4 (Oct, 2005): 778-816. Other critical feminist scholarship has focused on the way the western adversarial model of justice has tended to reduce women to mere victims lacking agency. For example, see Julie Mertus, “Southing from the bottom of the well: the impact of international trials for wartime rape on women’s agency,” International Feminist Journal of Politics 6, no. 1 (2004): 110-128. Finally, in terms of the argument made here, the work of Fionnuala Ní Aoláin is important as it examines the way transitionaljustice mechanisms have tended to hierarchize civil and political violations of bodily integrity at the expense of violations that are a result of the lived experience of women during conflict. As Ní Aoláin argues, “[w]omen experience violence in multiple forms in many societies. Violence is experienced in both the public and private spheres … in conflicted societies, women remain vulnerable to intimate violence but are also, as has been extensively documented, the target of sex-based violence that is intimately related to the methods and means of warfare used by combatants. International law has historically avoided regulating such sex-based violence” (832). The narrow focus on civil and political rights means that, while some harms experienced by women will be addressed by transitionaljustice mechanisms, many will not. The social context of violence must necessarily be addressed in order for transitionaljustice mechanisms to better respond to the various ways women have experienced conflict. See: Fionnuala Ní Aoláin, “Political Violence and Gender During Times of Transition,” Columbia Journal of Gender and the Law 15, no. 3 (2006): 829-849.
win-sets’, and as such constitutes a necessary condition for a policy shift, but ‘without domestic resonance’ this is insufficient (1988:430). The decision of political elites to revise a well-entrenched framing is often shaped by electoral, security, symbolic and other political considerations, rather than explained exclusively by normative adaptation. Drawing on the same theoretical framework, Martin and Sikkink have highlighted the importance of domestic constituencies in filtering external pressures in several Latin American countries (1993). Although the study acknowledges the power of external normative pressures in bringing about post-transitionaljustice and the erosion of prolonged silences, it also highlights the pivotal role of domestic politics in utilizing or resisting these normative influences, a point frequently disregarded by the prescriptive orientation of the literature. Most importantly, the study fits in with a broader trend towards bridging the gap between the international and comparative politics (Caporaso 1997); it shows how international norms have come to revise the nature of pact-making, while highlighting the importance of domestic actors and institutions.
In the beginning of this essay a holistic approach to transitionaljustice is de- scribed in terms of its instruments and processes (five key pillars) and its pur- pose and objectives (as defined by ICTJ). It has been demonstrated that gacaca incorporated initiatives relating to all five key pillars (accountability, truth re- covery, reconciliation, reparations and institutional reform) as determined by Boraine & Valentine. The main objectives of transitionaljustice have been de- fined as the recognition of victims and the promotion of peace, democracy and reconciliation. In-depth analysis suggests that gacaca has at times achieved some of these goals. However, it appears that there were opportunities to com- plement gacaca with additional measures in order to improve its purpose in terms of a holistic approach to transitionaljustice.
In the beginning of this essay a holistic approach to transitionaljustice is described in terms of its instruments and processes (five key pillars) and its purpose and objectives (as defined by ICTJ). It has been demonstrated that gacaca incorporated initiatives relating to all five key pillars (accountability, truth recovery, reconciliation, reparations and institutional reform) as determined by Boraine & Valentine. The main objectives of transitionaljustice have been defined as the recognition of victims and the promotion of peace, democracy and reconciliation. In-depth analysis suggests that gacaca has at times achieved some of these goals. However, it appears that there were opportunities to complement gacaca with additional measures in order to improve its purpose in terms of a holistic approach to transitionaljustice.
provided recommendations on how we could best draw upon these resources and the resources of outside entities to better address rule of law issues through our peace operations. The report of the Task Force is a useful catalogue of resources available within the system and is already proving valuable for the coordination of our efforts. As a follow-up, a Rule of Law Focal Point Network has been established at Headquarters, comprised of specialists representing 11 departments and agencies, to facilitate coordination on rule of law issues and to strengthen our support to rule of law aspects of peace operations. Much more remains to be done. We need additional tools and mechanisms to promote gender justice. There is still no common database of the instruments, tools, experiences and best practices accumulated by the system and no web-based means to access them from the field. Developing such capacities will be a focus of our activities for the future. This year, we will issue a number of new rule of law policy tools and will convene technical meetings to collect and analyse relevant experiences, including a technical workshop on transitionaljustice experiences this fall. Preparation is under way for tools relating to justice sector mapping, transitional criminal codes, basic policy approaches to hybrid and domestic prosecution for serious violations, guidance on approaches to the creation of truth commissions, legal system monitoring methodologies, a review of reconciliation approaches and guidance on public sector vetting. Finally, planning has begun for the creation of a transitionaljustice web resource.
The current context is also characterized by a shift in the settings in which transitionaljustice is pursued. When transitionaljustice measures were initially developed in Latin America for states transitioning away from authoritarianism, they were used to repair repressive and abusive state institutions. In the last decade, they have increasingly been applied to fragile states and post-conflict environments, which tend to lack functioning state institutions with demonstrated authority over an entire territory. The crimes being examined in these settings are often more a product of social chaos than of policies of systematic state abuse. This deep shift in the context for transitionaljustice demands greater analysis of its tools and approaches to ensure that they are suitably adapted to bring about justice and accountability.
As well as grassroots initiatives, another alternative approach to transitionaljustice involves mechanisms initiated and established by regional governments. Such an approach involves representatives of the state at a lower level, and at the same time can accommodate local participation and practices. Regional state officials or elites sometimes initiate such policies, but mostly it is elements of civil society, including NGOs and victims, who initiate and sometimes lead such processes in collaboration with local governments. One example of this approach is the Greensboro Truth and Reconciliation Commission in North Carolina, in the United States. The Commission was set up in 2004 and was claimed to be the first of its kind in the United States. The Commission started in the 2000s when a group of Greensboro residents and other concerned individuals recognised that problems in their community—including racism, distrust between police and African American residents, and poor working conditions— were connected to a tragic event on November 3, 1979 when members of the Ku Klux Klan, a right wing extremist movement, and the American Nazi Party shot and killed five protesters at a rally opposing the formation of the Ku Klux Klan. The Commission‘s mandate was to examine "the context, causes, sequence and consequence of the events of November 3, 1979" for the purpose of healing and transformation for the community. 5 The former Greensboro Mayor established a local Truth and Reconciliation committee, hoping that by establishing an accurate collective memory of the event, the community would better understand how to move forward (Williams, 2009: 144-145).
Yet, notwithstanding the growing popularity of public hearings and testimony, and in contrast to the considerable body of publications concerning issues related to most detailed questions on truth commissions and transitionaljustice in general, public hearings have provoked surprisingly little criticism. If at all, critics have stressed problems of procedural fairness (Freeman 2006), security (Hayner 2001), and the like. Some (mostly feminist) theorists have stressed gendered expectations and the privileging of rape stories at the expense of all other experiences of women survivors (Ross 2001; Theidon 2007). Selection processes have also been addressed (Coxshall 2005). Nevertheless, to a wide academic and professional community, the general democratic value of testimony and public hearings seems to be a matter of common sense.
So, that transitional regimes do not have a right to repudiate unilaterally debts incurred by an odious forebear does not mean that investors in such regimes will have a right to collect when the accounting is done. Those who invest in abusive regimes do so either because they want to support the inhumanity or because they want to profit by it, directly or indirectly. In the first case, the lender certainly does not have clean hands, and equitable considerations may warrant voiding the contract whether or not investors can be held liable for supporting abuses. In the profit-taking cases, complicity and greed during the reign of an odious regime provide grounds for tort liability that promises to at least offset financial obligations transferred to the new regime. The form and structure of this offset inevitably will be a function of the contingencies of particular regimes and individual transactions. In some cases, loans may be forgiven or restructured. In others, the terms of contracts for capital investment may be renegotiated. In all cases, however, the resolution in transition of financial obligations incurred by a predecessor regime will advance truth-seeking and full accountability rather than coming at the cost of these moral and transitionaljustice imperatives.
Latin America has neither suffered the majority of mass atrocities in the contemporary world nor the worst of them but, after a sustained period of transition to democracy, it holds the record for the most domestic trials for human rights abuses. Argentina is an emblematic case in Latin America and the world. Due to the early development of its human rights trials, their social impact and their scale, it has a leading role in what is known as ‘the justice cascade’. Until recently, leading scholars in sociology of punishment have studied the penality of ‘ordinary crimes’ through causally deep and global narratives largely from the perspective of the Global North. State crimes and regional paths of transitionaljustice have been neglected in their accounts. This paper will question this state of affairs – or ‘parallelism’ – through an exploration of the punishment of both ‘common crimes’ and ‘state crimes’ in Argentina, thus contributing to the growing body of scholarship on southern criminology.
prevailing ideas about how transitionaljustice impacts democratic institution-building (whether negatively or positively) are overall poorly conceptualised. There is a need for more theorising about the causal mechanisms linking both. Indeed the negative findings drawn here from the Ugandan case do not necessarily mean that transitionaljustice in general has no impact on democratic institution-building. Rather, it could simply signify that other, as yet unidentified, causal mechanisms are at play. Moreover, the fact that a particular pathway of impact, such as de-legitimation, can have both a positive and negative impact demonstrates that more attention needs to be paid to specifying the component parts of proposed causal mechanisms. There are clearly multiple ways in which processes of de-legitimation or empowerment can operate. These processes may moreover operate differently in function of the context in which they take place. Understanding the different steps and conditions under which transitionaljustice operates these effects is essential to improving our ability to assess its impact, and identify when transitionaljustice will and will not make a positive contribution.
Transitionaljustice literature has highlighted a negative relationship between enforced disappearances and reconciliation in post-conflict settings. Little attention has been paid to how human rights issues can become stepping stones to reconciliation. The article explains the transformation of the Cypriot Committee on Missing Persons (CMP) from an inoperative body into a successful humanitarian forum, paving the way for the pro-rapprochement bi-communal grassroots mobilization of the relatives of the missing. By juxtaposing the experience of Cyprus with other societies confronting similar problems, the article shows how the issue of the missing can become a driving force for reconciliation. The findings indicate that a policy that delinks humanitarian exhumations from the prospect of a wider political settlement facilitates positive transformation in protracted human rights problems and opens up a window of opportunity to grassroots actors.
the face of such a devastating set of events, it was clear that transitionaljustice must be implemented in Burundi. With the United Nations announcing a no- amnesty policy for Burundi the country began to address the grave human right violations through legal prosecutions. However, even within the limitations imposed by the United Nations on the domestic legal system, the use of temporary immunities and the delayed establishment of proposed transitionaljustice mechanisms circumvented the challenge of amnesty prohibition (Vandagiste 2011). The absence of legal prosecutions and impunity through amnesties will threaten the peace-building process as states might tend to find alternative paths that could contribute towards impunity for human right violations in the long-run (Quinn 2009, Dugard 1999). Amnesties presented in other contexts have been used in different circumstances. Though international law does not provide a space for granting amnesty for crimes against humanity, South Africa was able to carry out its amnesty process according to the international law granting the same to applicants to the Truth and Reconciliation Commission who qualified as committing the act with a political motive. This was widely-criticised by many South Africans as it would seem to extending impunity to most perpetrators of the apartheid regime (Mallinder 2007, Gibson 2002, 541, Mamdani 2005). The South African Truth and Reconciliation Commission appointed several committees to look into different aspects of transitionaljustice. The Amnesty Committee received 7,000 applications requesting amnesty. Out of this total number of applicants, only 16% received amnesty, which sparked debate over the fairness of granting the amnesties for South Africa case (Graybill and Lanegran 2004). In Burundi, the United Nations Special Expert granted no amnesties for serious human right crimes at the national levels which brought a
Scholarship on transitionaljustice, transnational social movements and transnational diaspora mobilisation has offered little understanding about how memorialisation initiatives with substantial diaspora involvement emerge transnationally, and are embedded and sustained in different contexts. We argue that diasporas play a galvanising role in transnational interest-based and symbolic politics, expanding claim-making from the local to national, supranational and global levels of engagement. Using initiatives to memorialise atrocities committed at the former Omarska concentration camp in Bosnia and Herzegovina, we identify a four-stage mobilisation process. First, initiatives emerged and diffused across transnational networks after a local political opportunity opened in the homeland. Second, attempts at coordination of activities took place transnationally through an NGO. Third, initiatives were contextualised on the nation-state level in different host-states, depending on the political opportunities and constraints available there. Fourth, memorialisation claims were eventually shifted from the national to the supranational and global levels. The article concludes by demonstrating the findings’ potential for wider applicability to the analysis of similar global movements in which diasporas are directly involved.
While the work of transitionaljustice stands in need of a critical engagement with the colonialist legacies of the discourses and institutions with which it is necessarily engaged, it must be stressed that this call to decolonize the imagination of transitionaljustice does not reflect a normative judgment reserved for it alone. As a descriptive matter, the need for decolonizing the world of international legal discourse and practice extends across the board. Rather, directing this decolonizing imperative specifically at transitionaljustice reflects a recognition and a hope that transitionaljustice, insofar as its practice is increasingly situated on the ground in the heart of the postcolony, offers a singular point of intervention in the processes that are structuring contemporary global relations. The work of transitionaljustice in sub-Saharan Africa may be imagined as having a role to play in the ongoing decolonization that, in strict adherence to the historicism that has directed its processes, arguably remains tragically incomplete. In order to assume such a role, however, transitionaljustice needs to decolonize its own historical imagination 3 insofar as it remains structured by historicism.
expectations above and beyond those for civil and political rights. However, this view does not sufficiently appreciate the deeply pragmatic nature of key elements of ESR law, for instance the acceptance that states’ ability to fully realize ESR will be limited by resource availability. Furthermore, such a view ignores the reality that there is necessarily a strongly aspirational element to all rights, including civil and political rights, in situations where such rights are not fully realized. It is undoubtedly correct that reliance on ESR norms will never be able to single- handedly abolish poverty, remedy structural disadvantage or ensure socioeco- nomic development. That does not mean that they have no contribution to make towards such broader goals. No one would seriously argue that transitionaljustice strategies aimed at redressing extrajudicial killings or detentions – classic civil and political rights abuses – should be written off as failures simply because they cannot by themselves achieve sustainable rule of law reform. The same is true and must be acknowledged when debating the potential inclusion of ESR in transitionaljustice.
A key ethical dilemma we faced in the interviews, which is certainly not unique to our research, was the need to establish a rapport with interviewees. This was especially sensitive given the content we were discussing. As will be discussed in the analysis, some interviewees considered the interviews to be a platform, a legitimate opening into the public space and a way to communicate their views on the current transitionaljustice process. In these contexts emotion can be used productively, telling us as researchers something about the framing narratives which provide the content to the interview itself. It is not uncommon in such research to begin interviews with certain pre-formed opinions on the actors or events to be discussed. In particular we had to ask ourselves as researchers whether our emotions shifted when ‘reassured’ by interviewees of their ‘good’ intent. Indeed, the surprise when confronted with the same views being expressed by those actors considered ‘civil’ and ‘uncivil’ prompted a re-thinking of labelling as actors not in terms of their de facto participation in or self- exclusion from transitionaljustice, but rather in terms of how the shifting political context cast certain views expressed in certain ways as more or less legitimate. Being attuned methodologically to these issues was vital in our research. Considering these issues led us to work with the interview material in different ways. We became less interested in what was said by whom but rather in how overlaps and differences in articulation of views mapped onto the ‘civil’ and ‘uncivil’ lines drawn by the transitionaljustice process in discourses of its advocates as well as material practices in the truth commission hearings or courtrooms.
It would appear the Commission maintained a deafening silence on judicial governance as a deliberate policy. It may have felt satisfied that the report of an earlier inquiry on the state of the Nigerian judiciary constituted sufficient scrutiny of the institution. The Panel in fact recommended full implementation of the report, which to date remains unheeded. The inquiry instituted by the late dictator, General Sanni Abacha, was headed by another respected retired Supreme Court Justice, Kayode Eso, with the report named after him. It did expose some unsavory details about the judicial institution in the country. Suffice it to say however that the inquiry was about the state rather than the role of the judiciary during years of military authoritarian rule in the country and was by no means an attempt at public scrutiny of the judiciary in the transitional context. In any case, the latter remit was temporally beyond the purview of the Eso Panel, which was constituted by and conducted under military rule. Thus, such satisfaction on the part of the Oputa Panel could be regarded as misplaced and out of tune with transitionaljustice considerations. There are several factors that justify a public accounting of the judicial role in governance during the period of authoritarian rule in the country. They can be broadly categorized: the legal-jurisprudential aspect and a sociopolitical nature.
The reconceptualization of transitionaljustice proposed here takes up law’s challenge in transition to embody a fundamental responsiveness to pretransitional injustice, particularly in terms of violations of socioeconomic rights. As Philippe Nonet and Philip Selznick assert, ‘responsive law aims at enablement and facilitation.’ 122 Enablement and facilitation cannot be thought of as independent of socioeconomic needs. Otherwise, law, that is, genuinely responsive law, will not be able to (re)construct and sustain a ‘political community that is inclusive, not the property of a few.’ 123 As the capability rights perspective involves both an ‘agent-rooted’ and a structural-institutional dimension, it is well suited to instantiate the fundamental structural changes needed to overcome the vicious cycle of injustice marked by powerlessness. Without this new framework, structural exclusion and its consequences persist and threaten the democratic viability of the new polity as the victims of violations of socioeconomic rights remain deprived of their capabilities, unable to participate as equal citizens in social life, in the labour market and in the public sphere.
Muhamad Danial Azman is Research Fellow at the Department of International and Strategic Studies, University of Malaya and a doctoral candidate at the James Wilson Centre for Global Constitutionalism and Centre for Peace and Conflict Studies, School of International Relations, University of St. Andrews, Scotland, United Kingdom. His research primarily focuses on the dialectic relations between the political violence and the politics of reconciliation and the peace process following the electoral violence and democratic crisis in Africa. He also interested in critical peace theories and post-liberal peace, Truth and Reconciliation Commissions (TRCs), transitionaljustice, political economy of post-conflict reconstruction policy, African diaspora, and political economy of violence and governance in Africa. Email: email@example.com