Transitional Justice as Elite Justice? Compromise Justice and Transition in Tunisia

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.

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.

This study investigated the role of mediation in grassroots transitional justice processes. The major aim of the study was to understand the role of mediation in transitional justice processes, ascertaining its effectiveness as a grassroots transitional justice mechanism and how its demand for use in transitional justice can be increased. The study was carried out using action research methodologies, with a mediation project carried out in the Makoni District of Manicaland in Zimbabwe. The mediation project involved community members addressing transitional-justice-related conflicts using mediation as a tool for conflict resolution. The mediators were provided with mediation skills through a training programme and their work was evaluated thrice to ascertain the role and impact of the mediation interventions on transitional-justicerelated conflicts. The project was termed Mediation for Everyday Transitional Justice because it was implemented in a natural community’s daily environment, by local people and for the local communities. The continuing failure of transitional justice mechanisms in Zimbabwe amid continued human rights violations justifies the undeniable value of this study. Zimbabwe’s past transitional justice efforts (since 1980, when the country became an independent republic) failed to build sustainable peace hence the country’s continued relapse into political and socio-economic turmoil. However, with appropriate transitional justice interventions that are built on grassroots-informed processes, sustainable peace is conceivable in Zimbabwe. Mediation, as an alternative dispute resolution process that is both persuasive and non-retributive, offers an interesting opportunity to the practice of transitional justice. The research concluded that the role of mediation in transitional justice is to facilitate truth telling, reparations, healing, and reconciliation among disputants without the need to use national-level transitional justice infrastructures. This means that, at the grassroots level, transitional justice processes can take place without waiting for the statist transitional justice approaches. However, in cases where the past human rights violations being addressed are tied to structural violence, driven from outside the community, local mediation processes may not be possible without the consent, cooperation, and willingness of those who sustain such conflicts. In addition, mediation cannot play any significant role in enabling prosecutorial justice, memorialisation, and institutional reforms at the grassroots level. Prosecutorial justice cannot be achieved because perpetrators can withdraw quickly when possibilities exist to be held criminally accountable for past human rights abuses. Institutional reforms also require changing governance policies and practices which are issues beyond the control of specific local communities. The study also observed that mediation is an effective tool for grassroots transitional justice issues because it is efficient, it saves time and financial resources, and it can be undertaken by local actors. To increase its demand and use in transitional justice processes at the grassroots level, these is a need to increase communities’ awareness of the importance of mediation in transitional justice, provide mediation-skills capacity-development interventions to potential mediators, and enhance the agency of various mediation actors at the grassroots levels.

ABSTRACTThis article critically examines how multifarious levels of division among victim constituencies have shaped legal and non-legal transitional justice responses to human rights violations. It submits that this division has caused such responses to operate in accordance with the notion of being a ‘victim of’ rather than that of simply being a victim of human rights abuse per se. Expanding from this position, it proffers the theoretical viewpoint that transitional justice responses are premised on the nuanced typologies of being a victim of a particular perpetrator or being a victim of a particular harm or being a victim of particular circumstances. When determining which victims to offer redress to, which victimisers to punish and which harms to repair, these approaches have by necessity fallen back on hierarchies that favour certain victims and harms above others. This process of hierarchisation is multi-layered and involves interplay between ideological, gendered and class-based factors that place certain victims outside the reach of transitional justice discourses and processes. The exclusion of these victims, the article argues, creates an invisibilised category of victims of the peace that fail to benefit from transitional justice processes that struggle to deal with the complexity their situations present.

Process Pluralism in Transitional-Restorative Justice: Lessons from Dispute Resolution for Cultural Variations in Goals Beyond Rule of Law and Democracy Development (Argentina and Chile) This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictatorships, civil wars, and international and sub-national conflicts). This article draws on examples from Argentina’s and Chile’s emergence from post-military dictatorships to describe and analyze a plurality of processes, including more formal governmental processes, but also those formed by civil society groups at sub-national levels. This article suggests that ‘democracy development’ and legalistic ‘rule of law’ goals and institutional design may not necessarily be the only desiderata in transitional justice, where more than the ‘legal’ and ‘governmental’ is at stake for more peaceful human flourishing. To use an important concept from dispute resolution, the “forum must fit the fuss”, and there are many different kinds of ‘fusses’ to be dealt with in transitional justice, at different levels of society – more than legal and governmental but also social, cultural and reparative.

Most post-conflict societies are defined by poverty, unemployment, social injustice and gender inequality, making them an ideal environment for trafficking in human beings (THB) to flourish. Against this backdrop, the necessity for transitional justice processes to address THB and its underlying causes has been recognised. Trafficking for sexual exploitation in particular has received global attention and has triggered heated debates, and while it has been met by significant policy reform at the global, regional and national levels such initiatives have often proven to have dangerous consequences for women’s rights. At the forefront of THB initiatives are the women who work in the sex industry. Using Cambodia and Myanmar as case studies, we demonstrate in this chapter how transitional justice mechanisms and processes can facilitate women’s empowerment by engaging better with counter-trafficking efforts. We call for the field of transitional justice to expand its mandate beyond formal mechanisms to encompass efforts that aim to achieve durable peace by addressing deep-rooted gender inequalities leading to widespread human rights abuses. Bringing THB within the transitional justice discourse can facilitate creating policy initiatives that do not occur at the expense of undermining the already fragile status and position of women in transitional societies.

Foreword, Edith Brown-Weiss Introduction, Lisa Yarwood Part 1: The Recognition and Contribution of Women in Transitional Justice Theory 1. Intersectional Feminist Theory for Transitional Society, Eilish Rooney 2. The Recognition of Gender Crimes in the International Courts, Caroline Fournet 3. Denial, Impunity and Transitional Justice: The Fate of Female Rape Victims in Bosnia and Herzegovina, Clotilde Pegorier 4. Women, Peace and Security: Mainstreaming Gender in Transitional Justice Processes, Amy Barrow Part 2: Women as Protagonists in the Transitional Justice Process 5. The Role of Women Asylum Seekers in International Transitional Justice Processes in the Conflict State and the Asylum State, Sarah Maddox 6. Women as Post Conflict Community Builders:The East Timor Experience, Nicole Turner 7. The Role of International Prosecutors in Facilitating Transitional Justice for Women, Andra Mobberley Part 3:Women as Participants in Transitional Justice 8. The Legacy of Gender Issues at the ICTR, Clair Duffy 9. Promoting Gender in Transitional Justice Processes: The Role of the United Nations, Nahla Valji 10. Protecting the Rights of the Girl Child in Transitional Justice, Annelotte Dekker 11. Women Survivors and Transitional Justice, Polly Dewhirst 12. Gender and Transitional Justice in South Africa, Helen Scanlon Part 4: The Role of Women in Non-Traditional Transitional Justice Processes 13. Women, Transitional Justice and Indigenous Conflict: The Role of Women in Addressing New Zealand's Colonial Past, Lisa Yarwood 14. Reparations in Latin America from a Gender Perspective, Catalina Diaz 15. Julissa Mantilla 16. Conclusion, Lisa Yarwood

The concept and study of transitional justice has grown exponentially over the last decades. Since the Nuremberg and Tokyo trials after the end of the Second World War, there have been a number of attempts made across the globe to achieve justice for human rights violations (International Peace Institute 2013: 10). How these attempts at achieving justice impact whether or not societies reconcile, continues to be one of the key discussions taking place in a transitional justice discourse. One particular context where this debate continues to rage on is in Bosnia and Herzegovina, many scholars argue that the transitional justice process and mechanism employed in Bosnia and Herzegovina have not fostered inter-group reconciliation, but in fact caused more divisions. To this end, this article explores the context of transitional justice in Bosnia and Herzegovina from a unique perspective that focuses on the need for reconciliation and healing after transitional justice processes like war crime prosecutions. This article explores why the prosecuting of war criminals has not fostered reconciliation in Bosnia and Herzegovina and how the processes have divided Bosnian society further. Additionally, this article presents the idea of state-sponsored dialog sessions as a way of dealing with the past and moving beyond the divisions of retributive justice.

The determination of truth in the aftermath of war aiming at establishing justice and peace is a key element of a transitional justice (TJ) process. The theory of justice of Roland Dworkin deals with an approach in which the interpretation of values such as equality, liberty or truth are paramount. Dworkin’s theory of justice is applied to constitutional states and lays out how democratic values are negotiated. The goal of a TJ process is to lead a state towards democracy after a war or internal armed conflict. TJ processes as well as Dworkin’s theory of justice are to be understood as dynamic, which implies that they are subject to constant change and thus to be considered in their respective social, cultural, political, and economic contexts. This paper explores the relationship between truth and justice in the framework of a TJ trial and Roland Dworkin’s theory of justice. The TJ process in Colombia serves as a case study because that was where I conducted field research in TJ in 2019.

This article considers how regional integration in Europe has informed processes of collective remembrance and transitional justice in Central and Eastern Europe. By taking the cases of Romania, Poland and the Czech Republic, two claims are made. First, although European institutions have not initiated top-down projects of historical reckoning, activists who have an interest in promoting engagement with the recent past have been able to draw the political, financial and/or judicial weight of European institutions behind particular reckoning initiatives, on anad hocbasis. Second, the nature of the projects that have been realized with the assistance of European resources has varied across the region, according to the extent of prior efforts to promote collective remembrance and transitional justice at the national level. Where there have previously been constraints on historical reckoning, activists have drawn “Europe” behind efforts to promote national-level confrontations with particularly national experiences of communist rule. By contrast, where there has previously been extensive state sponsorship of collective remembrance projects and/or processes of transitional justice, European resources have been used in support of efforts to raise awareness of the repressions of communist rule, and transitions from that system of rule, among a wider, international audience.

Reflecting on the case study of the Extraordinary Chambers in the Courts of Cambodia (ECCC), this article asks how transitional justice (TJ) processes account for the complexity of victimhood in political violence and mass atrocity. It speaks to the critical scholarship which questions the use of simplistic dichotomies of (innocent) victims versus (guilty) perpetrators in TJ processes. Findings from empirical, qualitative fieldwork conducted in 2013 and 2014 show that both inclusion and exclusion dynamics towards complex political victims take place at the ECCC. Whilst most critical scholarship questions the exclusion of complex political victims from TJ processes, this article highlights the limitations and challenges of both the inclusion and the exclusion of such victims. It argues that the complexity of victimhood in contexts of mass atrocity poses vexing questions to TJ scholars and practitioners that have yet to be addressed.

This paper examines the trajectory of transitional justice as a discourse within which conflicting power relations are intensified.It introduces a new conceptual matrix to approach this trajectory in Tunisia, based on time/place/ body/memory that is at the heart of the transitional justice discourse structure.Several questions are raised to this aim, including: How can the process of transitional justice be understood as a discourse with the power to produce categories?How does transitional justice create categories of times, places, and bodies?What collective memory does transitional justice produce?Is it possible to deconstruct this discourse?The paper focuses on the techniques and structures of transitional justice discourse and attempts to uncover disunity within that discourse itself.Finally, the paper considers the possibilities of deconstructing transitional justice discourse.

Abstract: This article extends recent academic debates about the sociohistorical entanglements between neoliberalism and human rights by exploring transitional justice processes in Sierra Leone, which followed the country's decade-long civil war (1991-2002). It analyses the ways both the Special Court for Sierra Leone (SCSL) and the Sierra Leone Truth and Reconciliation Commission (SLTRC) drew on 'economic' discourses, variously using the concepts of 'greed', 'corruption' and 'governance' to explain the broader context of the human rights violations with which they were concerned. By critically tracing how these discourses were mobilised, this article shows that neither the SLTRC nor the SCSL challenged the neoliberal vision of human rights. Rather, each process produced a narrative about Sierra Leone's civil war that not only effaced the deleterious role of neoliberal policies in the history of the conflict but also reproduced neoliberal ideas both about conflict and the economy. In this respect, my exploration of the Sierra Leone case demonstrates the importance of paying closer attention to how 'the socioeconomic' is conceptualised and accounted for within transitional justice and broader human rights processes, especially if they are to pose a more adequate challenge to the neoliberal order. Shorter abstract: This article extends recent academic debates about the sociohistorical entanglements between neoliberalism and human rights by exploring transitional justice processes in Sierra Leone after the country's decade-long civil war. The article focuses on the ways both the Special Court for Sierra Leone and the Sierra Leone Truth and Reconciliation Commission drew on discourses of 'greed', 'corruption' and 'governance' to explain the broader socioeconomic context of the human rights violations they were concerned with. The article demonstrates these discourses did not challenge but instead reinforced neoliberal visions of human rights.

In countries emerging from violent conflict and/or mass atrocity, there is an urgent need to promote stability and often also widespread demand for accountability for abuses which have taken place. Debate has raged among scholars and practitioners about whether justice should be sacrificed or delayed for the sake of peace, or should be promoted even if it is in the short term destabilising. In many countries emerging from conflict processes of accountability, or transitional justice processes, operate almost simultaneously alongside processes of peace-building such as disarmament, demobilisation and reintegration of ex-combatants, reform of the security sector and rule of law promotion, in the immediate aftermath of conflict. These can include domestic processes of truth-telling, prosecution, reparation and amnesty, or internationally promoted processes such as international criminal tribunals. They can also include internationalised criminal tribunals, which have mixed national–international staff. While scholarship has increasingly focused on the engagement between transitional justice and peace-building processes in the relatively near term, far less has examined the role of processes of accountability that follow conflict termination by a significant period of time, justice delayed. Drawing on recent fieldwork, the authors examine three internationalised criminal tribunals developed some 15 years after the termination of conflict in countries that experienced three very different types of conflict, conflict resolution and peace-building or reconstruction in Bosnia, Lebanon and Cambodia. They find that despite claims made by advocates for such institutions, such tribunals may only have limited impact on longer term peace-building and that the effects of flawed peace-building activities affect the operating environment of the tribunals.

Feminist scholarship in transitional justice: a de-politicising impulse?