Showing papers in "International Journal of Transitional Justice in 2008"

Transitional Justice and Peacebuilding after Mass Violence

Abstract: 1 Since the end of the Cold War, the international community has become increasingly involved in peacebuilding and transitional justice after mass violence. This article uses lessons from practical experience and theories of peacebuilding and transitional justice to develop a model of transformative justice that supports sustainable peacebuilding. This model is holistic and transdisciplinary and proposes a focus on civil society participation in the design and implementation of transitional justice mechanisms. It requires us to rethink our focus on ‘transition’ as an interim process that links the past and the future, and to shift it to ‘transformation,’ which implies long-term, sustainable processes embedded in society and adoption of psychosocial, political and economic, as well as legal, perspectives on justice. It also involves identifying, understanding and including, where appropriate, the various cultural approaches to justice that coexist with the dominant western worldview and practice. A syncretic approach to reconciling restorative and retributive justice is proposed as a contribution to developing transformative justice and sustainable peacebuilding. The development of this transformative justice model is informed by field research conducted in Cambodia, Rwanda, East Timor and Sierra Leone on the views and experiences of conflict participants in relation to transitional justice and peacebuilding.

Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice

Abstract: 1 This article argues that the field of transitional justice - in both its institutional and scholarly aspects - has historically excluded issues of economic inequality, structural violence, redistribution and development. It seeks to combine a conceptual critique with concrete institutional examples in an effort both to highlight the theory/practice relationship within the field and to anchor theoretical claims in particular examples. The first part of the article briefly describes the chronological and regional iterations of transitional justice in light of its nature as a global enterprise. The second part of the article examines the constructed invisibility of economic questions in the literature and institutions, suggesting that exclusion derives from particular patterns: ignoring the issues altogether, treating inequality or structural violence as contextual background rather than central issues in transition, or reducing economic concerns to a narrowed discussion of reparations. The final section outlines three possible costs of economic invisibility: (1) an incomplete understanding of the origins of conflict; (2) an inability to imagine structural change due to a focus on reparations; and (3) the possibility of renewed violence due to a failure to address the role of inequality in conflict.

Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘Non-Field’

Abstract: 1 Transitional justice appears to be an established field of scholarship connected to a field of practice on how to deal with past human rights abuses in societies in transition. The original focus of transitional justice discourse was that human rights law requires accountability in transitions, rooted in the discipline of law. Over time, this focus has been expanded to include a much broader range of mechanisms, goals and inquiries across a range of disciplines. In order to probe the current state of the field, this article argues against the current conception of transitional justice as a praxis-based interdisciplinary field. It suggests that there is a hidden politics to how transitional justice has been constructed as an interdisciplinary field that obscures tensions between the range of practices and goals that it now incorporates.

Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework

Abstract: 1 Increasing numbers of violent street protests and riots caused by socioeconomic grievances often occur in countries whose truth commissions have studied similar past episodes of violence and repression. These new cycles of violence push us to ask what more transitional justice can do to promote the aims of reconciliation and sustainable peace. The author proposes that truth commissions expand their mandates to include a legal framework that examines the socioeconomic root causes of violence in terms of violations of economic, social and cultural rights. This approach would help increase the compulsion felt by states to redress these conditions, and at the same time would provide local actors with a legitimate platform to lobby for solutions to their grievances. She argues that if the underlying socioeconomic structures that lead to violence are not addressed, sustainable peace will remain beyond our reach. In this way, the proposal supports the development- security nexus paradigm adopted in the last decade in UN peace-building operations. To complement this work, truth commissions could contribute to postconflict recovery first by diagnosing the socioeconomic causes of conflict and then by issuing recommendations that would orient national political agendas toward addressing poverty and structural inequalities, namely through the promotion of sustainable development.

Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice and Development

Abstract: ∗It is timely that in just its second year of publication, the International Journal of Transitional Justice (IJTJ) has chosen to focus this special issue on the nexus between transitional justice and development. This is an indication of the salience of the issues of development generally and social justice specifically to the process of seeking transitional justice in societies moving out of conflict or other forms of crisis and repression. The number of articles received for consideration in this special issue and the range of seminal topics they raise serve to underline the pressing need to consider concerns of development and social justice as experienced and expressed by both scholars and practitioners. In introducing this special issue, I want to highlight four areas of inquiry that scholars, advocates and practitioners of both transitional justice and development must consider if either field is to achieve its intended goals. The articles in this issue explore many of these four areas in greater depth, with potent illustrative examples that draw on a range of cases, as outlined below. Thefirstthornyquestionis:Cantransitionaljustice(TJ)todayaffordnottoconcern itself directly with social injustice and patterns of inequality, discrimination and marginalization that were underlying causes of a conflict and that inflicted major suffering and victimization on vast swathes of a population? How can (or should) TJ have a more direct impact on reducing social and economic inequality? Second, should TJ measures cost less and deliver more? For impoverished countries, TJ often represents a costly luxury in a highly resource-constrained environment where all aspects of social, economic and political life need to be rebuilt and development is a priority. In this context, TJ often comes to represent a trade-off of sorts between justice or development, rather than promoting development with justice. Third, should TJ concern itself directly with war economies and corruption, particularly the exploitation of natural and mineral resources, as these are often perpetrated by the same war criminals ‐ and with the same abusive, violent and exploitative means and devastating effect on victims ‐ as the war crimes that historically fall within the purview of TJ?

Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes?

Abstract: This article examines the various points at which accountability for economic crimes, including large-scale corruption, intersects with accountability for human rights violations. To date, transitional justice has largely compartmentalized legacies of abuse into those based on a narrow set of human rights violations and those based on economic crimes, which the author argues is an inadequate way to address both sets of abuses. Because corruption and human rights violations are mutually reinforcing forms of abuse, the field of transitional justice should approach economic crimes in the same way it approaches civil and political rights violations. The author suggests that traditional transitional justice mechanisms would be strengthened by an engagement with corruption and economic crimes, which would allow for both sources of impunity to be confronted.

Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence

Abstract: 1 Despite the proliferation of trauma and memory research in recent years, we know very little about the contribution of transitional justice mechanisms to psychological healing and societal reconciliation in the aftermath of genocide, armed conflict and politicized violence. Many scholars in this area have argued that the disclosure of traumatic experiences is beneficial to the psychological recovery process for survivors of gross human rights violations. This article critically examines this therapeutic assumption within a transitional justice paradigm. The article explores the potentials and limitations of international war crimes trials for victims of wartime sexual violence, focusing specifically on the International Criminal Tribunal for the former Yugoslavia (ICTY). The article provides a theoretical framework for analyzing the significance of testimony at international war crimes trials and raises some critical questions related to the psychological impact of trials. It is argued that due to the sheer diversity and heterogeneity of wartime rape victims, the experience of giving testimony is likely to be mixed: while some victims may suffer under the constraints of legal process, under the right circumstances, war crimes trials may help others to make sense of their suffering.

Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition

Abstract: 1 Truth commissions have become so fashionable in times of transition that one can readily recognize what might be called a ‘truth cascade.’ The commissions, and the reports they produce, are reputed to promote many of the goals at the heart of the transitional justice project: helping victims to heal, promoting accountability, drawing a bright line between the past and the present, promoting reconciliation and so forth. And yet, a closer look at the truth-seeking enterprise suggests that it may not be able to deliver on these promises. This article explores both the intrinsic and instrumental reasons why truth commissions may not be effective in promoting the goals attributed to them. The article does not argue that transitional governments should not pursue the truth, but it does urge governments to use caution and careful planning when they do so.

Toward a Development-sensitive Approach to Transitional Justice

Abstract: 1 This article argues that transitional justice measures should be designed and implemented in ways that are ‘development sensitive.’ A development-sensitive approach requires transitional justice practitioners to be aware of the different links that may exist between transitional justice and development, and to consider pursuing synergies with development work and directly addressing development-related issues. The article suggests a number of reasons for considering the relationship between the two fields, and proposes four levels at which this relationship exists: transitional justice and development efforts can complement each other; inadvertently affect each other; be coordinated in order to generate positive synergies; and directly address each other. The purpose of making these distinctions is not only to establish a taxonomy of connections but also to help us think about the arguments for and against deepening the relationship between the two fields.The article considers some of the reasons why it may make sense for transitional justice measures to pursue this relationship at the fourth level, that is, to directly address development issues, as well as some of the risks and challenges involved. Its purpose is not to arrive at a general conclusion that transitional justice should or should not directly address development, but rather to raise some of the questions practitioners need to ask when designing justice measures and determining the extent to which those particular measures should address development issues. Transitional justice is not a development strategy, but it should be, at a minimum, development sensitive.

Social Reconstruction as a Local Process

Abstract: 1When it comes to post-armed conflict interventions aimed at restructuring a shattered society, policy makers have largely treated countries as an undifferentiated whole, ignoring local dynamics that reinforce or transform the power relations that are often most relevant to peoples’ lives. Using the example of Guatemala, the authors argue that local-level, bottom-up mechanisms can reflect a country's diverse makeup and experience of conflict, and provide crucial precursors or extensions for wider-scale national and international projects. Local-level initiatives also can involve more community members, promote agency and perhaps be less prone to large-scale patronage and corruption. In promoting truth-telling initiatives and confronting the past, memorializing the departed and burying the dead, and resolving ongoing or recent community conflicts, the authors have found that local-level programs have distinct advantages. The article considers local ‘houses of memory,’ community-sponsored psycho-social interventions and exhumations; and conflict resolution based on Mayan methods. It concludes that such efforts should be more systematically identified and supported in post-armed conflict settings. In transitional justice, as elsewhere, the authors find, all politics is local.

Gender Equality, Development and Transitional Justice: The Case of Nepal

Abstract: The strong links between transitional justice, development and gender equality have been overlooked and underdeveloped in both theory and practice. Transitions are rare periods of rupture that offer opportunities to reconceive the social meaning of past conflicts in an attempt to reconstruct their present and future effects. The peace-building initiatives unfolding in Nepal encourage a timely examination of the application of the right to development to transitional justice mechanisms. This right embodies much more than economic growth; it is a human rights-based process that aims to empower marginalized groups. In Nepal, this must include women, who not only bore the brunt of the conflict but also continue to suffer systematic discrimination. Many of Nepali women's preexisting problems stem directly from inequality and underdevelopment. This article suggests that transitional justice should go beyond retributive and restorative approaches to consider the economic, social and cultural inequalities that fuel conflicts while setting the foundation for a permanent rights-based development programme that ensures the viability of women's rights in the future. A redistributive approach to transitional justice based on the legal and political process of the right to development is crucial to achieving gender equality in Nepal and avoiding renewed cycles of violence.

Argentina's National Commission on the Disappearance of Persons: Contributions to Transitional Justice

Abstract: 1This article examines the contributions to transitional justice made by the National Commission on the Disappearance of Persons (CONADEP) in Argentina; a commission established in December 1983 by then constitutional president, Raul Alfonsin, to investigate the fate of the disappeared. In particular, the article analyzes how CONADEP's inquiry simultaneously served the functions of creating a new public truth about the crimes - which were based on secrecy, the destruction of evidence and concealment by the state - and of collecting essential legal evidence necessary for the prosecution of perpetrators. Finally, it explains the success of the inquiry, which was a result of the combined efforts of Alfonsin's democratic administration and the Argentinian human rights movement.

A Deeper Justice: Economic and Social Justice as Transitional Justice in Nepal

Abstract: Nepal's April 2008 election was a climactic end to a 12-year conflict. As the country transitions to peace, efforts are underway to ensure that perpetrators of killings, abductions and torture are held accountable. As valid as this goal might be, transitional justice mechanisms should not continue to neglect economic and social justice issues. This article begins by explaining economic and social injustice as both a root and a product of Nepal's conflict, and demonstrates the deep commitment reflected in Nepal's peace agreement to addressing this injustice. This is juxtaposed with international and local transitional justice efforts that concentrate overwhelmingly on civil and political rights. After addressing the possibility of relegating economic and social justice to the development and postconflict reconstruction fields, the article suggests ways in which Nepal's transitional justice efforts might pursue such justice.

Human Rights Politics and Injustice: Transitional Justice in Argentina and South Africa

Abstract: Transitional justice is about the recovery of the rule of law and justice after mass violence. In the recent history of Argentina and South Africa, human rights politics have played an important role in the transition from repression to democracy as a discourse of resistance to state repression and as a framework and methodology for the successor state to manage demands for justice and promote reconciliation. Post-transition, they have provided a standard for the accountability of state institutions and evaluation of the democratic government's performance. In this article, we explore the roles of victims, survivors and relatives in the expansion of human rights politics. We argue that victims represent their suffering as embodied injustice and make their victim identity the focus of efforts to recover a moral contract between state and citizens. The expansion of human rights politics to include social and economic rights is an expression of the limits of transitional justice in recovering full citizenship in the context of the neo-liberal democratic project in Argentina and South Africa.

Ownership and Participation in Transitional Justice Mechanisms: A Sustainable Human Development Perspective from Eastern DRC

Abstract: 1 Sustainable human development principles underlie many of the objectives of transitional justice mechanisms. At the same time, the form, implementation and outcome of such mechanisms are influenced primarily by the political will, capacity and resources available to local, national and international institutions. Missing in the equation is the active involvement of the affected population in the planning and implementation phases. Building on the concepts of participation and ownership core to the philosophy and practice of sustainable human development, we use the results of a survey of 2,620 adult residents in eastern Democratic Republic of Congo to illustrate how transitional justice policies could and should be grounded in empirical evidence to best achieve sustainable human development objectives. Our results suggest that basic survival needs and security must come before mechanisms that deal with justice issues and reparations. Respondents expressed fear of reprisal if they were to talk openly about their experience in the conflict, which poses an obstacle to any truth-seeking process and, more generally, social change. In addition, the population's expectations for punishment and prosecution of numerous defendants must be addressed. Transitional justice mechanisms must be part of a broader set of policies for socioeconomic development and reconciliation.

Reparations for Sexual and Reproductive Violence: Prospects for Achieving Gender Justice in Guatemala and Peru

Abstract: Sexual and reproductive violence (SRV) perpetrated against women during war or under authoritarian regimes is one of the most severe manifestations of gender-based violence. The authors ask how governments in new or reforming democracies hope to repair SRV and how state programs for reparation might be conceptualized and delivered. By examining the cases of Guatemala and Peru, they explore the problematic of repairing damage caused by SRV and comment on prospects for redress to victims in each country.

Victim Reparations in the Peruvian Truth Commission and the Challenge of Historical Interpretation

Abstract: The Peruvian Truth and Reconciliation Commission (Comision de la Verdad y Reconciliacion (CVR)) has been praised for challenging positivist approaches to truth by focusing on victims and narrative interpretation. In this article, I argue that such a focus is not as problem-free as widely assumed. In spite of its normative human rights base, the CVR underestimated the issue of historical and political recognition of particular actors during the Peruvian armed conflict - an issue that bears practical and tangible consequences for the actors involved. I use the case of peasant self-defense groups and their treatment regarding potential reparations benefits to explore the challenges involved in combining a human rights agenda with issues of historical interpretation.

Delivering Lasting Peace, Democracy and Human Rights in Times of Transition: The Role of International Law

Abstract: 1The increasing scope of international legal regulation, particularly in the field of human rights, has facilitated the imposition of sustained policies of domestic reform aimed at entrenching internationally accepted standards of governance in transitional societies. At the point of such societal change, however, the symbolism of who makes and enforces the law is important. The question of the relationship between national and international law is therefore one that bears scrutiny. This article examines the theoretical basis upon which such policies are based, namely the idea of a liberal peace, considering the extent to which the blanket implementation of international standards can address the need of transitional societies to reestablish the legitimacy of both political and legal authority in order to ensure the future protection of human rights.

(Re)Imagining Coexistence: Striving for Sustainable Return, Reintegration and Reconciliation in Bosnia and Herzegovina

Abstract: Prior to the 1992-1995 war in Bosnia and Herzegovina, Bosniaks, Serbs and Croats shared neighbourhoods and friendships. The war, through its objective and effect, divided these communities and groups. Postconflict, the physical return of displaced persons and refugees was, and remains, insufficient to renew coexistence. Moreover, the weak economy aggravates divisions, further impeding sustainable return and reconciliation. Recognising these difficulties, UNHCR launched ‘Imagine Coexistence,’ a series of activities designed to rebuild trust among ethnic groups in areas of return. Many of the activities involved an income-generating component. The article reviews this and other similar initiatives that aim to promote livelihoods, community development, return and coexistence concurrently. It finds that while such inventive projects receive limited attention and funding, they have achieved successes in repairing social relationships, addressing poverty and strengthening communities in Bosnia. Consequently, they should be given greater prominence in Bosnia and more generally in the design of transitional justice and peace building interventions.

Serbia After the Criminal Past: What Went Wrong and What Should be Done

Abstract: This article explores the relationship between the recent criminal past and the contemporary socio-political condition in Serbia. Basic assumptions employed are that the recent past is defined by collective crimes, this past has retained relevance after the regime change of October 2000 and that Serbia has thus far chosen the wrong methods for dealing with its criminal legacies. Due to the persistence of damaging political, cultural and moral attitudes about the past, the overthrow of Slobodan Milosevic has failed to bring about the necessary political and moral break. Thus, it is legitimate to explore alternative ways of coming to terms with the legacies of past crimes, including, as this article proposes, the establishment of a truth commission in Serbia.

A Trojan Horse? Unionism, Trust and Truth-telling in Northern Ireland

Abstract: The aim of this article is to examine the relationship between trust, testimony and truth recovery processes as part of post-conflict transition. The paper uses the case study of unionist attitudes toward a community-based truth-telling project in Northern Ireland to demonstrate the impact an absence of trust can have upon what the French philosopher Paul Ricoeur has described as the ‘space of controversy’ that emerges between the ‘certification’ and the ‘accreditation’ of testimony. The paper suggests such distrust is a legacy, not only of conflict, but also of the particular circumstances of transition and the specific mechanisms of truth recovery adopted. Ultimately the paper argues for a holistic, community-centred approach towards truth-telling and raises issues relevant to other violently divided societies undergoing transition and grappling with ways in which to deal with the legacy of political conflict.

Purity and Planning: Shared Logics of Transitional Justice and Development

Abstract: ‘Transitional justice’ and ‘development’ largely have unfolded in the contemporary world as parallel sociopolitical projects, with little apparent intersection or cross-fertilization. The discourses and practices that frame these two projects appear to be quite different - in their scale, their tactics and strategies and their value systems. Yet, it would be surprising if this clean division of labour in the efforts to remake (certain parts of) the world were not underpinned by a deeper, shared political logic and vision. Drawing on discussions at a recent workshop on transitional justice and development, as well as on ethnographic case studies in reparations and memorials in the South African context, this article examines the tensions and commonalities between the twin projects of transitional justice and development. It argues that achieving the respective goals of justice and development depends on an understanding - and critique - of the underlying social, cultural and political processes that connect and determine the outcomes of both these projects.

Fighting Amnesia: Ways to Uncover the Truth about Lebanon's Missing

Abstract: 1 After a 15-year conflict characterized by mass violations of human rights, the Lebanese state and society have favored amnesia over truth seeking. This has marginalized the victims, in particular the relatives of thousands of missing or forcibly disappeared persons. The 2007 decision by the UN Security Council to create a Special Tribunal for Lebanon (STL), tasked exclusively with trying suspects in the assassination of former Prime Minister Rafik Hariri and other politically motivated assassinations, has fuelled perceptions of selective justice. This article outlines possible strategies for taking advantage of changed circumstances in Lebanon, including the future STL, in order to implement the internationally guaranteed right to truth for families of the missing. The author examines recent regional practices and, drawing from the experiences of Morocco and Cyprus, argues that given the strong constraints in Lebanon, the priority, at least initially, should be to establish the truth of what happened and not the prosecution or even naming of culprits.

Reshaping Civil Society through a Truth Commission: Human Rights in Morocco's Process of Political Reform

Abstract: 1 Observers of Moroccan politics have debated extensively the significance of the country's ‘top-down’ liberalization. At this point, there is no definitive verdict on palace-guided reforms, such as the recent Equity and Reconciliation Commission (IER). Rather, these reforms have left an ambiguous legacy. This article uses the IER - a truth commission established in 2004 to examine past human rights abuses, compensate victims and ensure nonrepetition - as an analytical tool to understand how transitional justice carried out as a strategic measure of top-down liberalization can reshape the relationship between civil society and the state. While the monarchy's reform efforts in Morocco have not (as of yet) led to a civil society capable of supporting a stable democratic transition, the article argues that these efforts have increased civil society's expectations of gaining capacity and space to implement ethical goals and demands. Greater expectations, in turn, have altered how the monarchy must calculate its survival strategy.

Testifying in an International War Crimes Tribunal: The Experience of Witnesses in the Special Court for Sierra Leone

Abstract: The research described in this article investigates the extent to which witnesses who testified in the Special Court for Sierra Leone (SCSL) report the experience as positive or negative. It also seeks to identify the factors that contribute to these evaluations. It reports the results of structured interviews conducted with 171 witnesses who testified in the SCSL. The finding that emerges most strongly is that the experience of testifying was positive for the majority of witnesses. The courtroom environment was experienced as supportive, and witnesses rated the experiences of both examination-in-chief and cross-examination as being more positive than negative, with examination-in-chief being the more positive of the two. The findings suggest that a positive testimony experience can be predicted when a witness does not feel worried at the prospect of testifying, feels respected by court staff and, to a lesser extent, has a positive experience of cross-examination.

Kozarac School: A Window on Transitional Justice for Returnees

Abstract: 1 The majority Bosniak town of Kozarac, now within the entity of Republika Srpska (RS), is regarded as one of the most successful returnee communities in Bosnia The ethnic cleansing that the town endured in 1992 is gradually being reversed with the re-establishment of civic life in the town In this difficult process, education is at the heart of the struggle for reconstruction and recognition This article traces the development of the Kozarac primary school since the end of the war It highlights returnees’ experiences and obstacles they have encountered in their attempt to restore primary school education for children in a divided and often hostile post-conflict society It illustrates how the neglect of local authorities can undermine the process of educational reform and perpetuate identity divisions into the next generation, rather than contribute to reconciliation The article concludes by noting that more attention needs to be paid within transitional justice policies to the reform of both the structure and content of educational institutions in order to contribute to sustainable community-level reconciliation

Forensic Science for Cambodian Justice

Abstract: Cambodia is universally associated with its killing fields – a horrific inheritance from the Khmer Rouge era. Whilst mass grave evidence from that era is referred to in history and social science publications on Cambodia, it has not featured in a legal context to date. The establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) creates an opportunity for a review of this evidence 30 years after the events. Those alleged to be accountable for Cambodia’s killing fields are finally being brought to justice. The question is whether this will occur with or without forensic science evidence from the mass graves. This article explores the reasons for using forensic science in the Cambodian context and outlines its potential for legal proceedings. Drawing on relevant literature in the forensic and legal areas, the article provides a brief outline of the legal context created by the ECCC and examines various projects that have recorded evidence relating to the mass graves. Employing an analysis of semistructured, in-depth interviews with forensic and legal experts as well as representatives from the ECCC and the Documentation Center of Cambodia (DC-Cam), the article explores the value of forensic science for the ECCC, including its impact on humanitarian issues in Cambodia.