Beyond Territorialization? State Constructions of the Indigenous Subject of Rights in Multicultural Colombia

The framework of transitional justice was originally devised to facilitate reconciliation in countries undergoing transitions from authoritarianism to democracy. But it is used with increasing frequency to respond to certain types of human rights violations against indigenous peoples. In some cases, transitional justice measures are employed in societies not undergoing regime transition. Such measures as apologies, reparations, and truth commissions offer opportunities for reinscribing the responsibility of states toward their indigenous populations, empowering indigenous communities, responding to indigenous demands to be heard, and rewriting history. Nevertheless, treating indigenous demands for justice as a matter of “human rights” is an ethically loaded project that may reinforce liberal and neoliberal paradigms that indigenous peoples often reject. Whether transitional justice measures will serve primarily to legitimate the status quo between postcolonial states, settler societies, and aboriginal peoples, or whether they will have transformational capacity, will depend in part on the political context in which they take place. The impact of such transitional justice measures as apologies, truth commissions, and reparations will be limited, or extended, by the wider policy environment in which they occur. This chapter outlines some of the potential complexities involved in processing indigenous demands for justice through a transitional justice framework. It identifies three broad areas in which the interests and goals of governments and indigenous peoples may clash, and where transitional justice itself may be the object of political wrangling. First, governments and indigenous peoples may differ over the scope of injustices that transitional justice measures can address.

Much of the time, transitional justice measures are developed alongside the implementation of peace agreements and peacebuilding efforts, and are expected by their framers and advocates to contribute to peace. The claim is that accountability measures can help to deter future violence and prevent revenge attacks, demonstrate and help to reinstall the rule of law and democracy, and contribute in so doing to longer-term stability. And indeed, transitional justice measures are expected to work alongside specific measures of peacebuilding, such as rule of law promotion, security sector reform, and disarmament, demobilization, and reintegration of excombatants, and increasingly those developing such measures of peacebuilding are expected to take transitional justice measures into account. What happens, however, when a transitional justice measure is developed decades after the end of the conflict, where such standard measures of peacebuilding were not pursued, or are incomplete? Can a transitional justice mechanism have the desired effects? And what if that mechanism is not designed to address the wide range of past crimes, but a more recent subset? This chapter considers the prospects for the Special Tribunal for Lebanon (STL) to have any serious impact on the country itself, against the backdrop of long-term, but unconsolidated, peacebuilding or reconstruction efforts. It argues that while Lebanon has undergone extensive reconstruction since the end of its brutal civil war, no serious peacebuilding efforts were undertaken, meaning that many of the changes a post-conflict society is expected to undergo, arising from demobilization of large numbers of fighters, reform of the justice and security sector, did not take place. In this context, accountability for the abuses of the war and in the 15 years after it in which the country was under Syrian occupation has yet to take place and seems unlikely. The STL is nonetheless often expected to operate as a mechanism analogous to ordinary transitional justice mechanisms, yet it does not have the remit to address the legacy of conflict and occupation, but rather only the assassination of former Prime Minister Rafik Hariri and related assassinations. It seems unlikely that it can have the effect expected of transitional justice mechanisms and ascribed by its advocates to it as well, of promoting human rights and accountability, and even peacebuilding, in the affected country. Rather, after two decades of reconstruction, the tribunal is unlikely to contribute to peace, and may run the risk of promoting conflict should it try defendants, whether in person or in absentia.

Canada and the Legacy of the Indian Residential Schools: Transitional Justice for Indigenous Peoples in a Non-Transitional Society

Did transitional justice support the processes of political and social trust building and facilitate democratization in the post-communist transitions in Central and Eastern Europe? More specifically, how did the structure and implementation of transitional justice affect outcomes? This book examines the conditions under which lustration and related transitional justice measures affected political and social trust building and democratization across twelve countries in Central and Eastern Europe and parts of the Former Soviet Union between 1989 and 2012. Contrary to blanket claims about the benefits or problems with the use of lustration and public disclosure measures, I argue that these transitional justice measures had a differentiated impact on political and social trust building, supporting some aspects of political trust while undermining other aspects of social trust. Using an original transitional justice typology, this book combines quantitative analyses of twelve post-communist countries and comparative case studies of four transitional justice programs—Hungary’s, Romania’s, Poland’s, and Bulgaria’s—to explicate transitional justice and trust-building dynamics. The book shows that the impact of transitional justice measures was conditional on their structure, scope, timing, and implementation, with particular attention to regime complicity challenges, historical memory issues, and communist legacies. More expansive and compulsory institutional change mechanisms registered the largest effects, with more limited and non-compulsoryemployment change mechanisms having a diminished effect, and more informal and largely symbolic measures having the most attenuated effect. These differentiated and conditional effects were also evident with respect to transition goals like supporting democratic consolidation, improving government effectiveness, and reducing corruption.

This book addresses the effectiveness of transitional justice mechanisms for repairing social cohesion. Truth commissions and reparation programs are implemented worldwide to enhance social cohesion, peace and democracy in post-conflict settings. Most claims about transitional justice measures are, however, normatively and not empirically based.The book questions whether attention from a truth and reconciliation commission can truly change the lives of the violence-affected people and whether monetary compensations or communal projects in form of milk cows can ever truly "repair" the harm suffered. The within-country comparative case study analyzes the effects of the commission and reparation program in Peru. It studies the post-conflict situation and the development of social cohesion in communities affected by the internal armed conflict. Using detailed empirical data this analysis reveals why the "reparation" of social cohesion in Peru was an impossible task. Contributing to a broader understanding of the impact of nationally applied transitional justice instruments in local settings, the book further offers a new framework for analyzing social cohesion as one of the aims of transitional justice processes. Offering a detailed account of transitional justice processes and social cohesion on the micro level, as well as an important analysis of their relationship, this innovative monograph will be invaluable for transitional justice scholars and students, as well as for international political and societal actors who are involved in transitional justice measures.

In times of transition, divided societies face difficult practical questions about how to devise new state and civil-society institutions that will diminish the potential for discrimination, conflicts over political power, and intercommunal violence.

Any country which attempts to establish accountability for past abuses of human rights during the process of democratization faces political, judicial, and ethical problems. With regard to politics, the question of which transitional justice measures are appropriate, functional, and feasible has to be decided for every individual case. A judicial approach has to decide which judicial standards to apply and how to justify prosecution. Finally, the ethical dilemmas of dealing with historical injustices have to be understood. There are no ready-made concepts to define guilt and justice. In many cases it is even difficult to tell the victims from the perpetrators. This study examines the different strategies subsumed under the term ‘transitional justice’ used by emerging democracies to deal with a legacy of human rights abuses. It explores the problems and challenges posed by different mechanisms of reconciliation and societal reintegration. While existing analyses of the contribution that transitional justice measures make to the process of social re-integration stress the importance of consensus among citizens and social groups for the emergence of trust and solidarity, this study suggests also thinking about how conflicts over competing ‘truths’ can help to build social capital and reconciliation. Noting a global diffusion of international legal norms, which means at least formal universal acceptance of basic rights and judicial procedures, it is argued that international justice cannot be a substitute for transitional justice measures taken by the domestic regime itself.

Unlike the blanket criticisms or accolades transitional justice measures receive in the literature, we are confronted with the reality of divergent and contingent relationships between transitional justice measures like lustration, public disclosures, and truth commissions and political and social trust-building goals. These findings force us to reconsider policy recommendations associated with transitional justice programs both because of possibly contrary outcomes, and due to previously unconsidered temporal conditions. With respect to comparative democratization, this study demonstrated a potentially important democracy promotion effect from transitional justice measures meriting continued exploration. This retrospective of nearly twenty-five years of transitional justice in Central and Eastern Europe and parts of the former Soviet Union contributes to the growing body of knowledge on regional regime change, with special attention to how issues of complicity, trust building, and nostalgia constitute unique challenges faced by former communist countries.

Terrorism carried out by State forces is the most reprehensible action to be taken because the power and resources of a country are used to generate terror. Such power and resources are aimed at reaching certain political goals instead of serving the citizens. Transitional Justice has raised complex debates related to democratisation, human rights and the reconstruction of the State and its institutions after periods of severe social conflict. After the last military dictatorship in Argentina (1976-1983), different transitional justice mechanisms were implemented to cope with the consequences of the State’s collective violence: Truth Commission, criminal trials, institutional reforms, as well as reparatory gestures. A descriptivecorrelational study of group difference was developed, with a non-experimental cross-sectional design. It was aimed at analysing the psychosocial impact of transitional justice measures taken in Argentina. The study was conducted on a non-probabilistic sample composed of 576 participants. Findings support the effectiveness of combined Transitional Justice measures, the weakness of recognition of criminal acts and apologies, and significant differences in terms of violence affectation.
 Received: 20 September 2021Accepted: 25 November 2021

This theoretical study examines the Korean ‘comfort women’ dispute and its impact on diplomatic relations between Japan and the Republic of Korea to explore how the pool of transitional justice can be exploited for diplomatic reconciliation. Korean ‘comfort women’ refers to the more than two hundred thousand Korean girls and women forcibly recruited as sexual slaves for the Japanese Imperial Army during the Second World War. The main research question guiding this paper is how can measures of transitional justice (TJ) contribute to a long-term reconciliation of diplomatic bilateral relations between Japan and the Republic of Korea. This case study demonstrates how TJ can transcend its traditional definitions and be adapted in diverse contexts for various scopes. It seeks to challenge and reinterpret the current literature on TJ by extending its normative purposes beyond conflict prevention and democratisation. Through the Japan-Republic of Korea example, the research uses TJ revelatory measures of truth-telling and collective memory to normalise unsettled interstate diplomatic relations between two consolidated democracies. Using a sociological and historical perspective, this work is an attempt to explore a novel application of TJ, contributing to the scholarly debate by demonstrating the enormous potential of TJ to be remodelled to non-transitioning and non-conflicting contexts that have yet to address historical legacies of past atrocities.We extend our heartfelt thanks to the Vahabzadeh Foundation for financially supporting the publication of best works by young researchers of the Graduate Institute, giving a priority to those who have been awarded academic prizes for their master’s dissertations.

Lustration is alternately theorized and anecdotally alleged to either undermine or contribute to the democratic transitions in Central and Eastern Europe (CEE) by supporting or undermining trust in public institutions, and by extension trust in national government. Using quantitative data on nine countries in CEE, this study examines the impact of lustration and transitional justice measures on citizen perceptions of the trustworthiness of public institutions and national government. It tests whether and how the timing of lustration, the severity of lustration, or the packaging of lustration with other forms of transitional justice affect trust in public institutions and national government. This article finds that even when controlling for economic growth, democratization, and corruption levels, lustration consistently and positively contributes to citizen trust in public institutions. However, lustration and transitional justice measures have an indirect and diluted impact on trust in national government, when they have any impact at all.

Lustration and Trust in Central and East Europe: Assessing the Impact of Lustration on Trust in Public Institutions and National Government

Transitional justice is a set of measures related to systemic or large-scale human rights violations designed to compensate victims of violations and to facilitate or facilitate the transformation of political systems, conflicts and other conditions that may be the cause of violations. Different methods and components of transitional justice usually combine restorative justice measures (truth and reconciliation commissions) and a parallel system of punitive justice (mainly for those most responsible for the most serious crimes and their direct perpetrators). In addition, transitional justice measures are aimed at reforming society’s institutions by restoring the rule of law and ensuring the functioning of the judiciary in the long run. At the same time, their goal is to ensure that crimes committed during the previous period do not go unpunished. Transitional justice is based on the responsibility and compensation of victims. It recognizes their dignity as citizens and as human beings. Ignoring mass abuses is a simple way out, but it destroys the values on which any decent society can be built. Transitional justice raises the most difficult questions of law and policy imaginable. Putting victims and their dignity first signals the path to new commitments to ensure the safety of ordinary citizens in their own countries - from abuse of power and effectively protected from harm by others. The historical development of transitional justice is nonlinear, and its conceptual definitions are descriptive and inexhaustible. In this context, countries in conflict or already in conflict have the opportunity to choose the most appropriate measures and mechanisms to achieve the ultimate goal of transitional justice in that country - justice for victims of conflict and the restoration of peaceful life. At the same time, it must be borne in mind that transitional justice cannot be the embodiment of the justice of the victors, so the parties to the conflict must participate in the national dialogue, and the winners and losers must be held accountable. First of all, it should be noted that transitional justice is only one of the approaches that can be used to build peace, along with the deployment of peacekeeping peacekeeping forces and other measures. It is the combination of these measures that will guarantee the long-term restoration of peace and non-return to the conflict. In addition, such measures may take place with the involvement of various actors, such as: the actual state in which the conflict took place (or is taking place); the international community or both. Key words: human rights and freedoms, transitional justice, armed conflict, post-conflict period.

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.

The last decades witnessed the emergence of transitional justice as a global norm which obliges post-conflict transitioning states to address systematic past human rights violations through purposeful judicial and non-judicial mechanisms. While its typical architecture focused on formal transitions, the dynamics of non-regime transitions and compliance is often neglected in transitional justice literature, and the measures also signify manifold challenges. This article attempted to assess the beleaguered transitional justice measures implemented in Ethiopia’s current troubled non-regime transition which came after the authoritarian and Marxist TPLF/EPRDF regime collapsed in 2018 after violent anti-government protest. Consequently, under the new hybrid elites’ leadership, host of justice measures were implemented but they unfolded in the absence of both typical transition and guiding transition roadmap. Through the lens of compliance and resistance in transitional justice, the article finds that rather than addressing legacies of atrocious past, the flawed and instrumentalist implementation of contested justice processes and the mismanagement of the narrow window of opportunity led to unprecedented societal violence and new political complexities. The Ethiopian case, therefore, reveals that seeking the retributive transitional justice measure in the absence of typical regime change and inter-elites bargain, and in an ethnically polarized political transition exacerbate inter-elite discord, bolster ethnic-supported resistance from predecessor elites, and harbor the risk of resurgence of new violence. Hence, it falls short of achieving the compliance with the transitional justice norm such as ensuring accountability (fighting impunity), adequately addressing past wrongs through judicial and non-judicial means and also ensuring non-recurrence of the same in the future.   Key words: Transitional justice, compliance, challenges, Ethiopia, non-regime transition.