Closing the cultural rights gap in transitional justice: Developments from Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls

To date, only sparse attention has been afforded to the potential and realized intersections between transitional justice and cultural rights. Despite a range of advancements and interventions, cultural rights have long been a blind spot in the field of transitional justice, one that has yet to be thoroughly interrogated on either a theoretical or practical level. This is at odds with a demonstrated willingness to challenge transitional justice’s preoccupation with bodily integrity crimes, and civil and political rights violations more generally. This chapter attempts to interrogate this blind spot by analysing the engagement of cultural rights in both the discourse and practice and transitional justice. In the field’s constantly growing and evolving discourse, cultural rights are routinely omitted, backgrounded, or discussed without reference to State obligations under international human rights law. Cultural rights are likewise marginalized in transitional justice practice. This is especially the case with cultural rights violations, or cultural wrongs more generally, which are not confronted and redressed in the same manner as other human rights violations. At the same time, cultural rights are not wholly absent from transitional justice and, indeed, are increasingly being addressed, respected, accommodated, and studied in interesting and significant ways. Several relatively recent developments have helped to push cultural rights increasingly towards the centre of transitional justice thinking and practice. However, these constitute clear exceptions to transitional justice’s overall antipathy towards culture and stand in stark contrast to the field’s historical marginalization of cultural rights.

This article sits at the intersection of two debates in the field of transitional justice. The first concerns the extent to which and how children and young people should participate in transitional justice mechanisms, particularly truth commissions. The second addresses whether the field and its mechanisms should cover socioeconomic harms, alongside civil and political rights violations. The primary argument advanced is that the inclusion of the latter impacts positively on the realization of the former. That is, when transitional justice mechanisms address socioeconomic harms, they create broader opportunities for child participation, increasing the number of children who can engage and amplifying the many benefits that come from their inclusion. This article both lends support to those who advocate for addressing socioeconomic harms in transitional justice, while also contributing to discussions on how to increase and improve child participation in truth commissions.

Transitional Justice and Ireland's Legacy of Historical Abuse James Gallen (bio) This essay evaluates the application of transitional justice to the context of historical abuse in peaceful, consolidated democracies, in particular the Republic of Ireland.1 Examining Ireland's efforts at repairing its past from such a perspective reveals an unwillingness by state authorities and Christian churches and religious orders to embrace the necessity of fundamental social, legal, and political transformation when addressing widespread and systemic historical abuse.2 In Irish efforts to address historical abuse across a range of contexts, power remains out of the hands of victim-survivors and of those traditionally marginalized in society. Instead, in agreement with Georges Balandier, I argue that "the supreme ruse of power is to allow itself to be contested ritually in order to consolidate itself more effectively."3 Recent state responses to historical abuse contribute to such a consolidation of power. Although public inquiries, legal accountability, and redress schemes claim to serve the interests of victim-survivors of historical abuse, these mechanisms fail meaningfully to empower or support their voices, participation, and ownership in shaping how [End Page 35] Ireland addresses its historical abuses. The Irish state designs mechanisms and engages in practices that marginalize victim-survivors in the present and thereby risk creating new forms of harm and distress. As a result, Irish "transitional justice" risks claiming the legitimacy of serving survivors' needs without any meaningful transition in how they are treated by the state, churches, or society. Section one of this article introduces the framework of transitional justice and considers its application to the Irish republic. Section two assesses the Irish experience of investigating and truth-seeking regarding historical abuses and draws comparisons with the "truth commission" model in transitional justice. Section three evaluates the Irish approach to accountability for historical abuses and demonstrates its limitations despite the different expectations for accountability for historical criminal and civil offenses. Finally, section four assesses Ireland's redress schemes for victim-survivors of historical abuse, drawing on approaches to reparations in transitional justice, and briefly examines Ireland's apologies regarding historical abuse and their potential impact on reform and reconciliation. Transitional Justice and Consolidated Democracies Ireland is not unique in dealing with a national legacy of past systemic violence. Although it has deployed several mechanisms since the early 2000s to address historical abuses, it has typically not employed the language or framework of transitional justice. It was only in March 2017 that TD Katherine Zappone, the minister for children and youth affairs, announced that she would initiate a transitional-justice approach to meet the needs of survivors of mother-and-baby homes (maternity homes).4 As a result, transitional justice forms only a small part of the explicit approach used by the Irish state to address its past. But transitional justice—as a body of scholarship and comparative international best practice—can also be employed as a conceptual and legal tool to evaluate the entirety of how countries such as Ireland have addressed their legacy of past violence. Transitional justice typically addresses how societies reckon with a [End Page 36] legacy of gross violations of human rights in the specific contexts of a transition from armed conflict or authoritarian rule to stable, peaceful liberal democracy.5 It includes several discrete but linked "pillars": investigation and truth-seeking (typically through truth and reconciliation commissions), accountability, reparation, guarantees of nonrecurrence, and reconciliation.6 Though a field dominated by law and lawyers, transitional-justice discourse claims to institute an interdisciplinary practice, with several ethical commitments to how justice is to be achieved; the process matters as much as the outcome.7 To this end a number of key tenets have informed scholarship and practice in this area that must be highlighted in any application of transitional justice to Ireland. First, an approach recognizing victim-survivors as legal subjects, bearers of human rights, and key participants in any decision affecting transitional justice is central to international transitional-justice policy.8 Second, each transitional-justice mechanism is designed to complement rather than compete with the others and is designed to form part of a single holistic process.9 Transitional justice is...

This chapter explores tensions in the relationship between transitional justice and Indigenous demands for recognition (often expressed in terms of sovereignty and reparations for colonial systemic human rights abuses) in the settler colonial states of Australia, Canada, New Zealand, and the United States. These states are usually absent from considerations of transitional justice. The author challenges this assumption. In recent years transitional justice mechanisms within settler colonial states, including reparations, apologies, inquiries, and truth commissions, have been adopted. However, these responses have been limited and do not address some of the core demands of Indigenous peoples including recognition of self-determination and sovereignty. The ongoing nature of settler colonialism complicates transitional justice processes: rectifying the past demands changing the structural conditions of the present relationship between Indigenous peoples and settler colonial states.

In the last four decades, theories and mechanisms of transitional justice have been formulated and implemented in numerous countries, forming an interdisciplinary theoretical and practical corpus. This paper proposes to expand the scope of transitional justice so that it can be applied in stable democracies. The proposed reformulation could be useful to address structural injustices affecting indigenous peoples, that are a legacy of colonialism and assimilationist policies, and to address acts of state repression that constitute serious human rights violations. These reflections are formulated on the basis of three recent case studies: 1) from the Canadian experience, the Royal Commission on Indigenous Peoples, the Truth and Reconciliation Commission, and the National Inquiry into Missing and Murdered Indigenous Women and Girls are analyzed; 2) from South Africa, the Truth and Reconciliation Commission, the Constituent Process and the Land Reform are discussed; and 3) from the Chilean case, the link between social unrest and transitional justice, as well as the Constituent Process, are explained.

This chapter addresses the contribution that transitional justice measures—including criminal prosecutions, truth-telling initiatives, reparations programs, and certain types of institutional reform—may make to socioeconomic development. Drawing on the notions of corrective justice and distributive justice generally associated with these two fields, it argues that transitional justice can make its most significant contribution to development by facilitating social integration, helping to prevent the recurrence of abuses, legitimizing state institutions, strengthening civil society, and improving state–society relations. It does this mainly by effectively achieving its goals of recognizing victims, fostering civic trust, and strengthening the rule of law. Furthermore, to the extent that transitional justice can effectively respond to economic violence, which involves the economic and social aspects of injustice caused by human rights violations, it may make a further contribution to development processes. However, realistic expectations about the extent of this contribution are important, as it will most likely be indirect and long term and, given the complexity and duration of most transitional and developmental processes, difficult to measure empirically; nor should the potential tensions between the goals and interventions of justice and development be ignored. The chapter reviews the arguments for and against expanding the mandates of transitional justice measures beyond the traditional focus on civil and political rights violations to include economic, social, and cultural rights violations, arguing that in some contexts, it makes sense for transitional justice to adopt a relatively narrow approach to economic violence.

Colonialism is a violation of the collective rights of people. This violation has denied them the right to decide on their social, economic, political, cultural and environmental rights. This has hindered them from building their social, economic, political, cultural and environmental capitals and achieving the highest possible level of physical and social well-being. The essence of collective rights includes the social, economic, political, cultural and environmental rights; all of them are essential to the development of public health. First, as the violation of social rights is an attack on the social wellbeing of people, so the violation of economic rights is an attack on the economic wellbeing. Second, the violation of political rights is taking away the decision making power. The violation of cultural rights is obstructing societies from culturally reproducing themselves and developing problem-solving skills. The violation of environmental rights has caused severe degradation of the natural environment. Violations of those rights act individually and synergistically and hinder the development of public health. The efforts the Oromo people make to assert their collective rights are part-and-parcel of building their social, economic, political, cultural and environmental capacities and promoting health and preventing diseases.

While truth commissions have become the ‘go to’ response in the aftermath of violent conflict and human rights abuses, serious critical discussion on the extent to which commissions have tended to shape and reify the identities of victims and perpetrators and obscure the reality of structural culpability is only tentatively emerging in the field. Drawing on the literature from the field of transitional justice, this article critically interrogates the relationship between truth commissions and the three key constituencies of victims, perpetrators and structural actors. It suggests that binary oppositions between victims and perpetrators are frequently privileged, resulting in hierarchal conceptions of innocent victims and guilty perpetrators. These polarized categories fail to reflect the complexity of conflict and promote easy and uncritical allocations of blame and responsibility. It also argues that the capacity of truth commissions to engage with structural actors and the structural causes of conflict is limited due to the influence of human rights and criminal justice on transitional justice and an individualized focus on violations of civil and political rights. An impunity gap is thus created, eliding broader patterns of institutional complicity and responsibility for structural violence, while the focus on civil and political rights violations creates further hierarchies of harm and hierarchies of victimization. The paper concludes that greater recognition of the complexity of identity and involvement in conflict is required to provide a more honest reflection on the past and a more sustainable link between truth telling and peace building.

Does the implementation of transitional justice (TJ) mechanisms such as trials, truth commissions, and institutional reforms reduce corruption by enhancing accountability, building trust, and creating a culture of deterrence? Although prior work has studied whether economic crimes should be included in TJ agendas, TJ’s potential to address corruption has been mostly overlooked. On the one hand, theory suggests that TJ could reduce corruption; yet, on the other, it indicates that TJ mechanisms are not effective enough at solving deep-rooted corruption. Testing these opposing arguments using data from 106 postconflict countries that experienced conflict between 1946 and 2006, I find that the implementation of TJ and corruption are not statistically associated. However, when I further investigate this relationship with only “well-implemented” TJ mechanisms, purges are found to be negatively associated with political corruption and amnesties are positively associated with regime corruption.

International law underwent a major shift when the second World War ended; the creation of the United Nations (UN) led to a system based upon human rights. The UN Charter, which affirmed support for equal rights and self-determination, was adopted in 1945, followed by the Universal Declaration of Human Rights (UDHR) in 1948. A number of binding treaties were ratified in the years that followed, most notably the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1966. This shift, together with the first explicit endorsement of self-determination, (defined as the freedom of a group of people to choose a political status and pursue development ) led to the demise of colonial powers dominating entire peoples and the creation of a number of new states. Indigenous peoples, effectively trapped within the borders laid down by their colonial oppressors, were largely left out of this. Indigenous peoples, broadly defined as tribal groups that have been somewhat engulfed by settler states, have often been left at a severe disadvantage by this subjugation. They make up about 5% of the world population but 15% of them exist in extreme poverty. The human rights of Indigenous peoples had long been treated as a domestic matter for the states in which their territory fell. This often had disastrous consequences, particularly in terms of their culture and socio-cultural human rights. Forcible attempts were made to assimilate Indigenous peoples in Canada, for example, through the state-sponsored residential school system, in which children were separated from their families, and housed in inhumane conditions. They were ‘educated’ as a means to stamping out Indigenous culture, whilst transferring the children onto the lower rungs of the economy. This practice continued for over a century and, along with other government policies, has been termed a cultural genocide. An international Indigenous rights system has developed during that time frame, however. There are now a number of international agreements and treaties that concern Indigenous peoples, most notably the UN’s Universal Declaration on the Rights of Indigenous Peoples (UNDRIP). Whilst this has brought necessary attention to the plight of Indigenous peoples, it is not regarded as a fix-all solution. General Assembly President Sheikha Haya Rashed Al Khalifa has warned that ‘even with this progress, Indigenous peoples still face marginalization, extreme poverty and other human rights violations. They are often dragged into conflicts and land disputes that threaten their way of life and very survival.’ This article argues that these clashes have, to an extent, undermined the protections of Indigenous rights, and whilst Indigenous peoples are now recognized by the international human rights regime, they continue to be marginalized. There are fundamental disagreements between several states, not least Canada, and the international Indigenous rights regime. Some of these are ideological, owing to the nature of Indigenous cultural rights themselves and to their uncomfortable fit within the international, ‘universal’ human rights regime that has been prominent since 1945. Other problems are more practical, stemming from the profound clashes between Indigenous cultural beliefs and the more Eurocentric values that tend to underpin modern, Western political and economic systems. A critical examination of the international Indigenous rights system is presented here, with Canada used as a case study. The background and development of the international Indigenous right system is outlined and explained, and its evident strengths and weaknesses briefly described. The article then examines ideological clashes between Western conceptions of human rights and Indigenous rights: self-determination, cultural, and land rights, as well as the collective nature of Indigenous rights. The practical incompatibilities between Indigenous peoples in Canada, and Canada as a sovereign settler state are then evaluated. This will point to the conclusion that the cause of Indigenous peoples has been only marginally advanced by the international Indigenous right system and that the future is not particularly promising.

This book considers the efficacy of transitional justice mechanisms in response to corporate human rights abuses. Corporations and other business enterprises often operate in countries affected by conflict or repressive regimes. As such, they may become involved in human rights violations and crimes under international law ‒ either as the main perpetrators or as accomplices by aiding and abetting government actors. Transitional justice mechanisms, such as trials, truth commissions, and reparations, have usually focused on abuses by state authorities or by non-state actors directly connected to the state, such as paramilitary groups. Innovative transitional justice mechanisms have, however, now started to address corporate accountability for human rights abuses and crimes under international law and have attempted to provide redress for victims. This book analyzes this development, assessing how transitional justice can provide remedies for corporate human rights abuses and crimes under international law. Canvassing a broad range of literature relating to international criminal law mechanisms, regional human rights systems, domestic courts, truth and reconciliation commissions, and land restitution programmes, this book evaluates the limitations and potential of each mechanism. Acknowledging the limited extent to which transitional justice has been able to effectively tackle the role of corporations in human rights violations and international crimes, this book nevertheless points the way towards greater engagement with corporate accountability as part of transitional justice. A valuable contribution to the literature on transitional justice and on business and human rights, this book will appeal to scholars, researchers and PhD students in these areas, as well as lawyers and other practitioners working on corporate accountability and transitional justice.

The transition toward addressing antimicrobial resistance (AMR) poses serious justice challenges. The just transition framework—originally developed within the U.S. labor movement to safeguard workers’ interests during shifts toward sustainable economies—has been proposed as a valuable framework for guiding the AMR transition. In the AMR context, similar conflicts of interests arise—such as those between farmers’ interest in maintaining routine antimicrobial use and the public interest in preserving their long-term effectiveness. This brief proposes enhancing the just transition framework by incorporating elements of Transitional Justice. Transitional justice has emerged as a practice aimed at addressing past political tragedies and building a more equitable future. While traditionally applied in post-conflict settings—such as the Truth and Reconciliation Commission in South Africa—transitional justice offers valuable tools for navigating conflicts rooted in past injustices and long-term uncertainty. One circumstance that makes transitional justice necessary in the context of AMR is the conflict between opposing views on the role the past should play in planning the transition. In this brief, we highlight key research gaps that the sciences, social sciences, and humanities should prioritize in order to better identify the conflicts and trade-offs that an AMR transition informed by a transitional justice framework must address.

This chapter articulates and advances a cultural rights-based approach to transitional justice, one that positions culture at the centre of transitional justice thinking and praxis. A cultural rights-based approach to transitional justice is one that addresses large-scale, past cultural wrongdoing on the same footing as violations of civil, political, economic, and social rights. It requires that cultural rights standards are protected, respected, and fulfilled in the design, implementation, and operation of transitional justice initiatives. It further encourages using and incorporating cultural practices and interventions as a methodology to confront large-scale past harm and to encourage social reconstruction in post-conflict and divided societies. Critically, this approach is principally guided by the international standards and norms that have developed around the pursuit of transitional justice and the protection of cultural rights. This chapter interrogates the possibilities and limitations of such an approach by examining some of the primary ways in which transitional justice engages with culture. These include: (1) confronting cultural rights violations; (2) accommodating local and Indigenous cultures; (3) artistic and cultural initiatives; (4) memorialization; and (5) cultural reparations. Numerous examples are drawn on from disparate contexts to demonstrate the contours of a cultural rights-based approach to transitional justice. These examples not only illustrate the close nexus between culture and the scope and aims of transitional justice, but arguably demonstrate the viability of adopting a cultural rights-based approach to addressing legacies of past large-scale harm.

This book engages the limits of transitional justice and, more specifically, the interface between transitional justice and the related concept of transformative justice. Challenging and developing the work of transitional justice scholars and practitioners, the book addresses both the limitations of existing mechanisms in contexts where they are currently applied, as well as the possibilities for using, or adapting, transitional justice mechanisms in contexts typically viewed as outside their usual remit. More specifically, chapters address shortcomings with regard to victim participation in transitional justice mechanisms in Cambodia; consider how the transformative justice framework might be mobilised to overcome limitations of standard approaches to transitional justice in addressing structural violence in post-conflict Colombia; and address how the concept of transformative justice could be used to address historical wrongs in post-apartheid South Africa and post-war Bosnia-Herzegovina. Further chapters explore the intersections of identity and culture with transitional and transformative justice, consider the role of elites in transitional and transformative justice, and put forward the case for applying a broader approach to historical truth telling than is typical in transitional justice.

This chapter examines the Armenian Genocide through the framework of transitional justice, with a particular focus on truth recovery mechanisms. Despite substantial historical evidence, the Republic of Turkey has persistently denied the Genocide, engaging in state-sponsored efforts to minimise and rationalise the atrocities. This denial has hindered reconciliation and reflects complex historical and political dynamics. Addressing the Armenian Genocide through transitional justice mechanisms, such as truth commissions, historical commissions, and parliamentary commissions, is crucial for confronting these historical injustices. However, given the strong denialism and authoritarian regime in Turkey, comprehensive reconciliation efforts face significant challenges. Persistent civil society mobilisation, grassroots activism, and international pressure are essential to advance these efforts. Engaging a wide range of actors, including civil society, scholars, and political parties, is vital for the legitimacy and effectiveness of transitional justice mechanisms.