Gendered Subjects of Transitional Justice

Abstract

Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation, and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and future. This is no easy task, and shortcuts, both in dealing with the past and in building a just future, often appear irresistible. In Martha Minow's words, justice at this juncture amounts to replacing violence with words and terror with fairness, (1) and steering a path between too much memory and too much forgetting. (2) The template of mechanisms available to undertake transitional justice are familiar to those who work in this field: prosecutions (domestic and international); truth and reconciliation commissions; lustration (the shaming and banning of perpetrators from public office); public access to police, military and other governmental records; public apology; public memorials; reburial of victims; compensation or reparation to victims and/or their families (in the form of money, land, or other resources); literary and historical writing; and blanket or individualized amnesty. In most cases, justice demands the deployment of a number of these tools, given that no one of them can adequately address and repair the injuries of the past nor chart a fully just future. Transitional justice will always be both incomplete and messy. Justice is, of course, a very complex ethical, legal, institutional, and emotional problem, and its aspirations are rendered all the more difficult in transitional societies that are struggling with unstable governance, security, and economic institutions. To better illuminate these complexities, particularly as they relate to gender, I will borrow a framing device from political scientist Nancy Fraser. In Justice Interruptus, Fraser discusses one of the key dilemmas of justice projects: whether they should be fundamentally committed to redistribution or recognition. (3) Justice as redistribution is a familiar concept entailing the reordering of material and symbolic resources based upon a particular account of culpability, desert, accountability, injury, and fairness. These transitional justice projects could be primarily committed to redistributing money or land (in the form of reparations), but they could also redistribute shame (from the injured to the injurer) or power--resources that might be best understood as symbolic and cultural. By contrast, justice projects that emphasize recognition seek the establishment of official bodies, be they courts, tribunals, officially appointed commissions, or boards of inquest, whose task it is to find facts, and, more importantly, recognize, acknowledge, or call up the identities of the parties and acts that are brought to their official attention. The facts to be recognized may be culpability, harm, injury, or causation. Individual identities to be recognized would be that of criminal, victim, conspirator, or rights-holder, while the identity of particular criminal practices may be recognized as well, such as genocidal, gender, or ethnic-based crimes. Of course, a preference for redistribution over recognition, or vice versa, does not tell you which of the tools of transitional justice to prefer. Courts can both recognize and redistribute, as can truth and reconciliation commissions that possess the power to order reparations. However, I think it fair to say that while transitional justice mechanisms can undertake either or both justice as redistribution and justice as recognition, at the end of the day most of them end up accomplishing more recognition than redistribution. …