From transitional to performative justice: peace activism in the aftermath of communal violence

The third wave of democratization has meant the end of autocratic rule and oppressive state-sponsored practices in many countries around the world. Yet the transition from authoritarianism and state-sponsored terror to more open and participatory societies has its own imperatives. After autocratic rule and protracted conflicts, it is necessary to heal the wounds caused by years, sometimes decades, of mistrust, fear, and violence. Systematic violations of human rights, in the form of oppression, physical and psychological violence, and death, leave lasting individual and collective wounds. Transitional (or restorative) justice is designed to address and (hopefully) mitigate such legacies left by the previous regime. In doing so, it draws on a variety of instruments: criminal prosecutions, special tribunals, amnesties, apologies, memorials, lustrations, and truth commissions (TCs), among others. The end of the Cold War also gave a new impetus to international criminal justice. Special tribunals for the former Yugoslavia, for Rwanda, and for Sierra Leone were established, as was, most prominently, the International Criminal Court, originated in the 1999 Rome Treaty and based in The Hague. For many, this portends a major shift in international relations, one in which the traditional, Westphalian, and sovereignty-centered international system gives way to another, based on more porous units, in which individual and human rights have more sway and human rights abuses trigger a more proactive international reaction. In turn, these developments have given rise to a whole new field of study: transitional justice. This is an interdisciplinary field in which political science, law, sociology, history, anthropology, psychology, theology, and other disciplines converge. Not surprisingly, since transitional justice emerges as a result of the developments described above, it is, much like democratization and political transitions, also marked by contingency and paradox. Transitions are fluid and political action and the uses of the law find themselves under a different set of rules than under ordinary circumstances. Grasping the transformative opportunities presented by the conjuncture becomes a key test of political leadership. (1) Truth commissions have emerged as a popular tool of transitional justice, especially in cases where a delicate balance between the extant remnants of the previous regime coexist with the new dispensation. (2) TCs have come to the fore because of their flexibility, their open-endedness, and their ability to act as a bridge of sorts between an evil past and a democratic present, thus laying the foundations for a future society at peace with itself. At first, transitional justice was mainly concerned with transitions from authoritarian to democratic rule. However, after the large number of internal conflicts that arose in the post-Cold War era, it has also been applied within the wider panoply of nation- and peacebuilding instruments following the end of a war or conflict. This has been especially true for Africa. Some transitional justice tools, like TCs, have shown to be so prevalent and useful for a variety of reasons that they are now deployed in advanced Western democracies, like Canada, to investigate historical human rights abuses as well as to investigate the conditions that led to the breakdown of democracy, as happened with the TC set up in Honduras after the June 2009-January 2010 crisis. Especially in Latin America and Africa, TCs as well as truth and reconciliation commissions have been deployed to come to terms with past injustices while rebuilding trust in government and among social groups, although they have also been deployed in Asia, Europe, and North America. (3) While they share a number of common features, TCs must reflect local specificities to address the crimes of the past amidst the fluid, uncertain, and challenging conditions that are the hallmark of democratic transitions. …

ABSTRACTThe concept of transitional justice (TJ) was widely discussed in Thailand following the massacre of ‘Red Shirt’ protesters in 2010. While TJ is generally conceptualised as a set of internationally recognised and promoted approaches to overcome intra-societal conflict and pursue reconciliation, the current article builds on recent research that finds TJ can be subverted by holders of institutional power to become transitional injustice (TiJ) [Cyanne E. Loyle and Christian Davenport, ‘Transitional Injustice: Subverting Justice in Transition and Postconflict Societies’, Journal of Human Rights 15, no. 1 (2016): 126–49; Sidney Leclercq, ‘Injustice through Transitional Justice? Subversion Strategies in Burundi’s Peace Process and Postconflict Developments’, The International Journal of Transitional Justice [TIJTJ] 11, no.3 (2017): 525–44]. The article argues that TJ concepts have successfully been subverted in Thailand by the nation’s controlling ‘social cage’ to silence and neutralise its political opponents. This study applies Loyle and Davenport’s analytic frame, supported by Leclercq’s consideration of how TJ is normalised in local contexts, to identify how TJ is subverted into TiJ in a non-transitional authoritarian regime. The Thai experience adds substantive evidence that support Hansen’s argument [Thomas Obel Hansen, ‘Transitional Justice: Toward a Differentiated Theory’, Oregon Review of International Law 13, no.1 (2011): 1–46; Thomas Obel Hansen, ‘The Vertical and Horizontal Expansion of Transitional Justice: Explanations and Implications for a Contested Field’, in Transitional Justice Theories, eds. S. Buckley-Zistel, T.K. Beck, C. Braun and F. Mieth (New York City: Routledge, 2014): 105–22] that how TJ is applied in non-transitional regime settings should be included in TJ discourse.

Post-conflict reconstruction has emerged as one the major issues of concern in Africa in the last three decades. Since the end of the Cold War following the fall of the Berlin Wall in 1989, many African countries embraced multiparty systems that expanded democratic spaces. With this came the claim to justice and consciousness on the need to reconstruct a new vision of the nation, a vision that is based on social cohesion. This led to calls for democratisation in a number of African countries as well as in Latin America, Eastern Europe, and, in particular, former Soviet Union countries. In Africa, the approach taken by different countries varied from elaborate transitional justice processes that involved truth commissions to national dialogue processes that called for political compromise without putting into place any formal transitional justice process. The articles in this supplementary issue on transitional justice discourse in post-conflict societies in Africa draw attention to diverse contextual issues on post-conflict reconstruction in the continent. These articles bring together divergent discourses, experiences, theorisations, and interpretations of transitional processes while calling for a new way of assessing truth-telling processes within the purview of legal frameworks, gender and cultural sensitivities, peace sustainability, and conflict resolution strategies in Africa. The articles open up debate on the extent to which transitional justice processes contribute to peace and sustainability in Africa, and what could be done to improve this important post-conflict reconstruction initiative.

Conflict Prevention and Guarantees of Non-Recurrence

Even as transitional justice struggles to deliver on its original promises of truth, justice and reconciliation, more demands are being placed on it. Over the past several years, the transitional justice ‘industry’ has embraced holistic approaches that have it doing ever more. This article critically examines transitional justice’s recent attention towards historically constructed socio-economic inequalities. It begins by looking at the shift in transitional justice discourse and practice with respect to economic and social rights. Next, it discusses the arguments made for transitional justice’s engagement with those rights and looks at efforts by truth commissions and administrative reparations programmes to address them. Finally, it argues that transitional justice should avoid directly addressing past socio-economic wrongs and explores some alternate paths.

The Solomon Islands Truth and Reconciliation Commission (TRC) was mandateSolomon Islands Truth and Reconciliation Commission mandate d to give special provisions for women, in accordance with global developments and expectations in transitional justice practice. Yet on the ground realities reveal that, though well-intentioned, efforts to achieve gender sensitivity and representation within an already imported mechanism are fraught with challenges. Meanwhile, scholars, policymakers, and practitioners continue to call for greater empirical research to understand how truth commissions are adopted, negotiated, contested, and transformed in the range of cultural contexts in which they are implemented, to contribute to a more informed and refined understanding for future practice. Drawing from research conducted with dozens of TRC staff and stakeholders, and the authors' own experience of working for the Solomon Islands TRC, this chapter examines the friction of importing a globalised mechanism into a culturally embedded context; of balancing demands and aspirations for truth and reconciliation on the national level with localised realities; and the at-times clash between transitional justice discourse and local practices and kastoms in Solomon Islands. These challenges are illustrated with a closer examination and reflection of the difficulties and complexities of researching women's experiences of the conflict, and of sexual violence in particular.

In order for a country to transform from a society in which rights were severely repressed to a society in which rights are respected and protected, the violations of the past must be properly and adequately addressed. However, instead of using the transition to democracy to confront the country’s history of violence and repression, the Spanish government and society actively stifled the memory of the Civil War and forty-year dictatorship, failing to address the country’s legacy of violence and the victims left in its wake. Despite the Spanish transition being regarded as a remarkable success story, an institutionalized historical amnesia resulted in many oppositional counter-memories as forms of cultural resistance. This paper will demonstrate how repressing memory left the door open for the legacy of political violence to persist in Spain. Prioritizing processes of transitional justice and historical memory is crucial in working toward sustainable peace in Spain and the Basque Region today. This paper will provide an overview of transitional justice and historical memory and an analysis of the impact of Spain’s lack of transitional justice, specifically regarding the politicization of victimhood. It is important to examine the implications of the pacto del olivido (pact of silence) and the 1977 Amnesty Law in rendering Franco’s victims invisible and in sustaining Spain’s legacy of political violence. Furthermore, this paper will explore how the Basque terrorist group, Euskadi Ta Askatasuna (ETA), carried on Spain’s legacy of political violence for another four decades following the end of the Franco dictatorship. The next section of this paper will analyze how the ‘memory boom’ of the early 2000s led to greater recognition of the victims of Francoism and to the passing of the 2007 Historical Memory Law. This analysis will show how the politicization of victimhood resulted in an inequity between the measures taken to recognize and protect different victims’ groups, subsequently providing more protection for victims of ETA violence. Overall, this paper contends that, in the case of Spain, a lack of transitional justice has perpetuated a long legacy of violence and a silencing of the victims of Francoism that remain unresolved.

Many societies seeking a just transition from authoritarian regimes or civil wars to democracy have employed official truth commissions to investigate systematic violations of internationally recognized human rights by a previous government, by its opponents, or by combatants in an internal armed conflict. Currently being utilized in South Africa and Guatemala, such investigative bodies have been employed in at least 20 countries and are being considered for such nations as Bosnia and Kenya. The human rights violations that truth commissions investigate include extra judicial killing disappearance, rape, torture, and severe ill treatment. The question of 'transitional justice', as I shall be employing the term, is 'How should a fledgling democracy reckon with severe human rights abuses that earlier authoritarian regimes, their opponents, or combatants in an internal armed conflict have committed'? The challenge for new democracy is to respond appropriately to past evils without undermining the new democracy or jeopardizing prospects for future development. Societies in transition to democracy have employed many interrelated means in reckoning with human rights abuses that a prior regime or its opponents have committed. In addition to investigator bodies, these measures range from 'forgive, forget and move on' to national or international war crime tribunals. They also embrace such tools as social shaming and banning of perpetrators from public office ('lustration'); public access to police records; public apology or memorials to victims; reburial or reparation of victims; literary and historical writing; and amnesty or impunity (the ignoring or accepting of past violations). In this paper I argue, first, that truth commissions can contribute to achieving many important goals in societies in transition to democracy. But they must be supplemented by, and work in tandem with, other measures and institutions. I compare the strengths and weaknesses of investigator bodies and other tools for meeting the challenge of transitional justice, and I delineate eight goals by truth commissions should be fashioned, combined, and sequenced with other tools. Second, I seek to show that a nation's civil society) - especially when it practices public deliberation or deliberative democracy - is often indispensable to the success of truth commissions and to reckoning with past wrongs more generally. Finally, I support the contention that international civil society may play a useful role in advancing the goals of national truth commissions and transitional justice.

While there have been recent advances in theories of transitional justice, there remains a lack of theory about how truth commissions and human rights trials interact with each other to facilitate or constrain efforts at transitional justice. This is an important deficiency to remedy because numerous countries long ago leapt ahead of transitional justice theory by sequencing trials and truth commissions, while the International Criminal Court (ICC) will have to manage relationships with truth commissions as its work accelerates. The aim of this article is to use current literatures on transitional justice and political transitions to build a theory of how trials and truth commissions interact with each other. This will be done in three steps. First, the article will elaborate the goals and critiques of trials and truth commissions in order to provide a foundation for how they might interact. Second, the article will consider these institutions in sequence to understand how they interact when trials operate first, truth commissions first, or when they operate simultaneously. Third, the article will consider these sequences in context to understand how legacies of violence and its termination may affect their relationship. This effort is meant to clarify the theoretical issues at stake in the sequencing of these two important institutions, stimulate debate, and inform institutional design.

ABSTRACTEducation is acknowledged as a component of transitional justice processes, yet details about how to implement education reform in postconflict societies are underexplored and politicized [King, Elisabeth. 2014. From Classrooms to Conflict in Rwanda. New York: Cambridge University Press]. Local and international actors often neglect the complicated nature of education reform in postconflict societies undergoing transitional justice processes [Jones, Briony. 2015. "Educating Citizens in Bosnia-Herzegovina: Experiences and Contradictions in Post-war Education Reform." In Transitional Justice and Reconciliation: Lessons from the Balkans, edited by Martina Fischer, and Olivera Simic, 193–208. New York: Routledge. Transitional Justice]. The role of the diaspora in transitional justice has been increasingly explored as a participatory transnational actor with influence and knowledge about local dynamics [Roht-Arriaza, Naomi. 2006. The Pinochet Effect: Transnational Justice in the Age of Human Rights. Philadelphia: University of Pennsylvania Press; Haider, Huma. 2008. “(Re)Imagining Coexistence: Striving for Sustainable Return, Reintegration and Reconciliation in Bosnia and Herzegovina. ”International Journal of Transitional Justice 3 (1): 91–113; Young, Laura, and Rosalyn Park. 2009.“ Engaging Diasporas in Truth Commissions: Lessons from the Liberia Truth and Reconciliation Commission Diaspora Project.” International Journal of Transitional Justice 3 (3): 341–361; Koinova, Maria, and Dženeta Karabegović. 2017.“ Diasporas and Transitional Justice: Transnational Activism from Local to Global Levels of Engagement.” Global Networks 17 (2): 212–233]. This article bridges academic literature about diaspora engagement and transitional justice, and education and transitional justice by incorporating the role of diaspora actors in post-conflict processes. Using empirical data from multi-sited field work in Bosnia and Herzegovina, Switzerland, Sweden, the United Kingdom, and France, it examines diaspora initiatives which aim to influence local transitional justice processes through translocal community involvement in education and youth policy. It argues that diaspora initiatives can provide alternative and intermediate solutions to the status quo in their homeland, with some potential for contributing to transitional justice and reconciliation processes. Ultimately, diaspora initiatives need support from homeland institutions in order to forward transitional justice agendas in post-conflict societies.

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.

Challenging the widespread assumption according to which reconciliation is understood as a process or an aim to be achieved in the post-conflict period, i. e., after or beyond formal peace processes between political leaderships, Yoav Kapshuk’s paper on Reconciliation in Peace Agreements? The Case Study of the Israeli-Palestinian Peace Process presents principles of reconciliation as crucial elements that could be applied in formal agreements to end conflicts. They include transitional justice, historical truth, historical acknowledgement, and dealing with past injustices’ socioeconomic and structural aspects. In its first part, the paper discusses these reconciliation principles in the context of formal peace processes, recommending ways of incorporating them into agreements. The second section applies them in a model for solving the Palestinian refugee issue based on the Oslo peace process. The paper argues that formal peace agreements must not be exclusively identified as the objective of the conflict settlement or resolution techniques. Integrating reconciliation principles in formal agreements can benefit attempts to end protracted conflicts such as the Israeli-Palestinian case.

The rising of religious intrastate armed conflicts in recent years has a significant impact on the world order. Despite a growing literature on the relationship between religion and conflict, we know little about the conditions under which peace processes of religious conflicts may succeed. Studies show that addressing issues of transitional justice during conflicts may promote peace. This study examines the role of transitional justice in peace processes of religious conflicts. Our study uses quantitative analysis utilizing the Transitional Justice in Peace Processes (TJPP) Dataset, which contains innovative information on worldwide peace negotiations between 1989 and 2014. The TJPP dataset identifies six elements of transitional justice: truth commissions, reconciliation processes, reparations programs, restitution and rehabilitation of refugees, amnesties and prisoners' release. Findings demonstrate that peace processes of religious conflicts are more likely to use transitional justice elements, yet these peace efforts are less likely to reach a full peace agreement.

Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls (the ‘MMIWG Inquiry’) is the latest truth-seeking body to grapple with legacies of violence against indigenous peoples in settler colonial states. While the name, Missing and Murdered, ostensibly limits its scope of application to bodily integrity crimes, the MMIWG Inquiry instead embraced an expansive understanding of violence to encompass gross violations of indigenous cultural rights and cultural harm more generally. This article argues that this holistic approach represents a stark departure from mainstream transitional justice models which have overwhelmingly prioritised the redress of a limited set of civil and political rights violations, while neglecting the underlying structural violence and cultural harm that permeates divided societies. This article advances a case to understand the MMIWG Inquiry as a transitional justice mechanism and draws upon its Final Report to analyse how truth commissions can engage with cultural rights violations in more meaningful ways. By directly and robustly accounting for indigenous cultural harm, the MMIWG Inquiry challenged the conventional parameters of the field and demonstrated the opportunity and utility of addressing cultural rights violations through a transitional justice framework.

Periods of disturbances leave physical and emotional destructions trails. The realisation that more needed to be done in such cases culminated in transitional justice philosophy. Using documentary analysis, this discursive paper interrogates the extent to which four major features of transitional justice; prosecutions, truth commissions, reparations and reforms, have been applied in different contexts. The main question revolves on the extent to which the reality ought to conform to the theory on transitional justice. The paper reveals that transitional justice has delivered in some cases whilst failing in others. Reservations to generalised transitional justice are presented. The researcher recommends a customized approach. Radical as it may sound, some things may need to be done the right way whilst others need to be omitted for peace to prevail. There is need for practicality in whatever is done as transitional justice if sustainable peace is to prevail.