Context Of Transitional Justice Research Articles

Violencia política y guerra sucia en Colombia. Memoria de una víctima del conflicto colombiano a propósito de las negociaciones de la Habana

La violencia como herramienta política ha sido una constante en el conflicto interno colombiano desde hace más de 25 años, cuando el fenómeno paramilitar inició un vertiginoso ascenso que lo llevaría a cooptar gran parte de la institucionalidad a inicios del siglo xxi. El paramilitarismo, el narcotráfico y las guerrillas han generado cientos de miles de víctimas en Colombia, y hoy, cuando el Estado colombiano adelanta negociaciones de paz con el principal grupo guerrillero, los derechos de las víctimas crean una tensión entre quienes exigen su plena aplicación y entre quienes consideran que en escenarios de justicia transicional existen posibilidades de ponderación entre los derechos de las víctimas y la existencia de un marco legal que permita la finalización negociada del conflicto. En este contexto, se presenta el relato de Gloria Mancilla, víctima del conflicto, y sus demandas de verdad y justicia frente a las negociaciones de paz en desarrollo.

Addressing Impunity and Options for Justice in Kenya: Mechanisms, Issues and Debates

This study focuses on the fight against impunity as its predominant theme. The choice of theme reflects a general conviction – informed by recent events – that failure to address past atrocities over decades in Kenya created an environment where impunity thrived. First, it seeks to refocus the current debate and contextualise it within a transitional justice context, rather than simply the one-off prosecution of those with the greatest responsibility for the Post Election Violence of 2007-2008 (PEV). In this regard, it integrates the accountability debate around the PEV and that relating to the KTJRC that predates the former. Secondly, by discussing select African experiences with transitional justice, the study seeks to draw lessons that could inform the accountability efforts in Kenya – as they relate both to the KTJRC and the relevant prosecutorial mechanisms. Thirdly, the publication also seeks to broaden the current debate to include issues that, though relevant have not been discussed in any detail. These include gender issues within transitional justice, the role of domestic courts in the accountability process and the possible role of the African Union in combating impunity and contributing to the peace and stability of the region.

The Importance of Conversation in Transitional Justice: A Study of Land Restitution in South Africa

One of the most replicated findings of the procedural justice literature is that people who receive unfavorable outcomes are more likely to believe that the process was nonetheless legitimate if they thought that it was fair. Using interviews of 150 people compensated through the South African land restitution program, this article examines whether these findings apply in the transitional justice context where it is often unclear who the winners and losers are. The question explored is: When all outcomes are unfavorable or incomplete, how do people make fairness assessments? The central observation was that the ability of respondents and land restitution commission officials to sustain a conversation with each other had the greatest effect on whether respondents believed that the land restitution process was fair. The study also contributes to the existing literature by exploring the institutional arrangements and resources necessary to facilitate communication and to overcome any communication breakdowns encountered.

Addressing Dilemmas of the Global and the Local in Transitional Justice

The importance of (local ownership, values, practices, etc.) in matters of post-conflict peacebuilding and transitional justice has become an increasingly common trope in academic and policy discourse. Yet despite its centrality, concepts like local ownership' remain vague and poorly understood, often being associated more with aspirational rhetoric than concrete policy reality. Examined more deeply, the seeming consensus about the importance of the in transitional justice masks a profound ambivalence arising out of a clash of normative commitments: between a commitment to liberal internationalism and international human rights on the one hand, and to principles of sovereignty, autonomy, and democracy on the other. Striking a better balance between these commitments represents one of the key policy challenges of 21st century transitional justice. To this end, this article seeks to analyze and deconstruct the concept of the in the transitional justice context, exploring its promises and pitfalls. In particular, I argue that understanding global-local dilemmas requires one to unpack the concept of ownership, distinguishing concerns about actual control (agency, decision making, funding), process (bottom-up, participatory, homegrown), and substance (values, practices, priorities), even if those concerns are in practice highly related. Deconstruction of the concept of the local, in turn, tends to destabilize, breaking down simple binary notions of global and local. Going forward, achieving a better global-local balance along the multiple dimensions of ownership may help to generate new and innovative approaches that take us beyond the increasingly rote transitional justice toolbox.

Property Rights and Transitional Justice: A Forward-Looking Argument

Abstract.This article aims to describe a forward-looking approach to the problem of property rights in transitional justice contexts. Undemocratic regimes violate property rights in various ways, from simple theft to violations of opportunities to appropriate. Therefore, post-transition situations entail an obligation to correct such injustices. However, returning to the status quo ante is complex, costly and requires information that is often not available. An alternative is the suggested FCR: forward looking, commensurable and redistributive. Such an approach emphasizes the creation of a baseline of ownership and welfare rather than an attempt to return to the status quo ante.Résumé.Cet article tente de décrire un argument tourné vers l'avenir au sujet du problème des droits de propriété en contexte de justice transitionnelle. Les régimes non démocratiques violent les droits de propriété de multiple façons, de la simple usurpation à la violation des opportunités d'appropriation. Par conséquent, les situations post transitionnelles impliquent une obligation de corriger de telles injustices. Cependant, le retour au status quo ante s'avère complexe, coûteux et requiert de l'information qui, souvent, n'est plus disponible. Une alternative est l'argument suggéré FCR : prospectif, commensurable et redistributif. Une telle approche met l'emphase sur la création des conditions de base du droit à la propriété et du bien-être, plutôt que sur la tentative de restituer le status quo antérieur.

Victimology in transitional justice: Victimhood, innocence and hierarchy

Although addressing the needs of victims is increasingly proffered as the key rationale for transitional justice, serious critical discussion on the political and social construction of victimhood is only tentatively emerging in the field. Drawing from Anglo-American victimology, the first part of this paper suggests that victims of crime as a category are often perceived as the mirror opposite of perpetrators of crime. It suggests that such a perspective narrows the notion of victims’ rights or needs so they become intrinsically linked to the punishment of perpetrators; that victims and perpetrators are reified and distinct categories; and that ‘true’ victim status demands innocence. The second part of the paper takes these insights and applies them to the context of transitional justice. In particular, it questions the notion of ‘innocence’ as a prerequisite for victim recognition and explores the ways in which victims and perpetrators are not always easily identified as distinct categories in conflicted or transitional societies. The paper concludes that incorporating blame in the calibration of human suffering results in the morally corrosive language of a ‘hierarchy of victims’.

Property Rights and Transitional Justice: A Forward-Looking Argument

This article aims to describe a forward looking approach to the problem of property rights in transitional justice contexts. Undemocratic regimes violate property rights in various ways, from simple thievery to violations of opportunities to appropriate. Post transition situations entail an obligation to correct such injustices therefore. However, returning to the status quo ante is complex, costly, and requires information that is often not available. An alternative is the suggested FCR: forward looking, commensurable and redistributive. Such an approach emphasizes the creation of a baseline of ownership and welfare, rather than an attempt to return to the status quo ante.

Judicial Legitimacy and the Role of Courts: Explaining the Transitional Context of the German Border Guard Cases

In the Border Guard Cases, the German judicial system was faced with the questions of individual guilt and accountability for state injustice. Through its decisions, the Courts unexpectedly had to raise the issues of whether German courts could help the collective process of coming to terms with the past. While some authors stressed the important purpose of such trials, others concluded that the soldiers guarding the East German border did so in conformity with East German law and that they should not have been convicted for their actions. This article argues that it was far from clear what the legal situation in East Germany was and that the German Border Guard Cases should be viewed in the larger context of transitional justice. It also argues that in transitional periods, ordinary lawmaking must cope with policy shifts caused by changes in the value judgments of legal elites and citizens. These discontinuities create problems and require us to perceive transitional justice as a distinctive topic presenting a distinctive set of moral and jurisprudential dilemmas.

The consequences of judicial obligations as a politics of transition in post-war Serbia, Bosnia and Herzegovina, and Croatia

This paper explores the idea of victimhood from the individual to societal level within the context of transitional justice and reconciliation. The idea of justice and truth has gained considerable prevalence within post-war states in the Balkan region. The reform of the state has required the regeneration of society based on particular legal interpretations of the political violence. As a result, an era of judicial obligations has come to frame how society regenerates, reforms and rehabilitates. Therefore the paper discusses the consequences of wartime victimization in terms of local responses to how ‘the past is processed’ through Transitional Justice institutions like the International Criminal Tribunal of Yugoslavia (ICTY), and associated ad-hoc mechanisms, like outreach programs. The establishment of such judicial processes have set off particular questions like can society be seen as victim? How is society victim? Using a socio-political approach, such questions are problematised through a political defeat paradigm to reveal a particular political anxiety that underwrites the new societies and their politics. This is where the idea of “state anxiety” and “political defeat” are used to discuss what has locally formed out of such politics of transition.

Système Dégage? Women and Transitional Justice in the Wake of the Arab Spring

I am currently working on a research project about people of Muslim heritage challenging fundamentalism. (1) As part of that research, I traveled to Algeria, Egypt, and Tunisia in the last year to interview human rights activists. One of my goals is to bring voices from the region into our debates here, especially the voices of women's human rights defenders, who are too often left out. I will draw from my ongoing research today to explore some issues related to women and transitional justice in what we call the Spring, particularly focusing on North Africa. My basic argument is that in the wake of the revolutions of 2011, we have to broaden and re-imagine transitional justice in order to ensure that it advances women's human rights in the region. At the risk of stating the obvious, the notion of transitional justice presumes transition, and it presumes justice. Neither of these conditions should be assumed, and certainly not when it comes to the status of women. Moreover, a rigorous analysis of transitional justice requires that it apply across time--looking back at the past, looking at the period during a transition, and, as the system moves forward, looking toward a time which will offer greater human rights protection, including protection of women's rights. There are multiple ways to bring a gender perspective to bear on transitional justice, to address what Fionnuala Ni Aolain has called under-enforcement in the transitional justice context. (2) The first and most straightforward is to make sure that women whose rights were violated by former regimes have full access to justice, including with regard to gender-based violence. (3) This genders the traditional vision of transitional justice. Such a project is critical in North Africa. Women were raped in large numbers in Libya during the revolution, (4) and tortured in the jails of Ben Ali (5) and Mubarak. (6) Many North African women are leaders in the calls for accountability with regard to abuses committed by regimes ousted in the Arab Spring. I think of Tunisian human rights lawyer Radhia Nasraoui who faced ongoing harassment under Ben Ali. She told me, We cannot build a new society while torturers are enjoying their freedom. A second way of bringing gender to bear on the transitional justice discussion is to think more broadly about what the transition is doing for social justice and full equality, including for women. (6) This approach remakes what we mean by transitional justice from a gender-sensitive perspective. Both ways of gendering transitional justice are important, but this second one is considerably more ambitious, perhaps in keeping with the first phase of the Spring itself when North African protestors demanded systemic change in Arabic and French: Ashaab yourid isqat al nitham--the people want to bring down the system, or Systeme degage (System out!). In fact, the two versions of gendered transitional justice are complimentary. At a conference organized in Cairo by the International Center for Transitional Justice last fall, former member of the South African Truth and Reconciliation Commission Yasmin Sooka said that [i]f transition does not address violence against women, the violence against them increases and reinforces their marginalization. (8) I was especially struck by the temporal aspect of her comments. She said, When you hear 'liberation first, equality after!' you can rest assured that equality will never come. (9) As we try to merge liberation and equality--to think more broadly of what gendered transitional justice should mean in the current North African context--we have to deal with many paradoxes. Let me set out a few. The first concerns the limits of transitions, and the risks of regression. Samir Dilou of the now-ruling Tunisian fundamentalist party Ennahda personifies these. Mr. Dilou is the human rights minister in the transitional government ushered in by the Tunisian revolution. …

Tracking Down the Missing Financial Link in Transitional Justice

This article argues that lenders providing financial assistance to authoritarian regimes should be held responsible for complicity if they knew or should have known that they would facilitate human rights abuses. Discussing the lenders’ role in a transitional justice context leads to a broadening of legal and institutional tools to channel this responsibility. This article starts by critically assessing the micro criteria traditionally used to understand the causal link between finance and human rights abuses, suggesting that a macro (i.e. holistic, interdisciplinary and casuistic) approach considering structures, processes and dynamics of sovereign financing should be applied when interpreting this link. It also explains how that traditional view is being challenged. A rational choice approach is taken to explain the most salient financial features of large-scale campaigns of gross human rights violations in order to understand the real relevance of funds in contexts of criminal regimes. The legal bases of responsibility for complicity are then discussed, separately presenting the arguments applied to private, multilateral and bilateral lenders. It also outlines how the missing financial link could be integrated into the domain of transitional justice, presenting, elaborating and assessing enforceability of concrete mechanisms to channel financial complicity in order to attain transitional goals. Finally, concluding remarks and challenges on the relationship between financial complicity and transitional justice are presented; and policy and economic considerations are made to better understand the real implications that incorporating the financial dimension into the transitional justice universe could have for a country.

ENDING IMPUNITY: CRITICAL REFLECTIONS ON THE PROSECUTION OF HEADS OF STATE

Since 1990, nearly seventy heads of state have been prosecuted for crimes committed while in office. From a legal perspective, the prosecutions have been possible largely due to an erosion of the state immunity principle and the emergence of specialized courts with a mandate to prosecute political figures. Interesting questions arise as to why the legal landscape shifted and whether the trend towards greater numbers of prosecutions has enhanced the rule of law. In their book, Prosecuting Heads of State, editors Ellen L Lutz and Caitlin Reiger shed light on these larger questions. In this review, the author explores Lutz and Reiger's premise that the increased willingness to prosecute heads of state has been the direct result of activist lawyering, and questions whether the rule of law can truly be enhanced by prosecutions that are inextricably linked to political motivations. The author concludes by cautioning against the over-reliance on judicial accountability mechanisms in transitional justice contexts.

Ending Impunity: Critical Reflections on the Prosecution of Heads of State

Since 1990, nearly seventy heads of state have been prosecuted for crimes committed while in office. From a legal perspective, the prosecutions have been possible largely due to an erosion of the state immunity principle and the emergence of specialized courts with a mandate to prosecute political figures. Interesting questions arise as to why the legal landscape shifted and whether the trend towards greater numbers of prosecutions has enhanced the rule of law. In their book, Prosecuting Heads of State, editors Ellen L Lutz and Caitlin Reiger shed light on these larger questions. In this review, the author explores Lutz and Reiger's premise that the increased willingness to prosecute heads of state has been the direct result of activist lawyering, and questions whether the rule of law can truly be enhanced by prosecutions that are inextricably linked to political motivations. The author concludes by cautioning against the over-reliance on judicial accountability mechanisms in transitional justice contexts.

Women, Art and Post-Conflict Justice

AbstractThis article addresses the creative agency of women within the context of post-conflict or transitional justice (TJ). Specifically it seeks to underscore the diverse ways in which women in societies emerging from violent conflict and its attendant gender-based violations and atrocities use art and creative media to pursue the objectives of justice. The aims of this article are twofold: first, this article draws attention to the need for local stakeholders in war-affected communities and their international supporters to go beyond official mechanisms of transitional justice; to integrate cultural justice by recognising and encouraging aesthetic and creative means of pursuing justice after violent transitions, and women's particular capacities in this domain. Second, alongside the drive to treat women as more than victims by recognising their political agency in shaping peace and justice, this article draws attention to the need to recognise the creative agency of women and its valuable albeit intangible benefits for TJ and peacebuilding.

Judicial Accountability in the (Post)Transitional Context: A Story of the Czech Republic and Slovakia

This paper discusses the notion of judicial accountability and argues that judicial accountability is as important as judicial independence for fostering the rule of law and effective judicial mediation of political transition. In the subsequent case studies, it focuses on the ‘large scale’ institutional design of administration of courts in the Czech Republic and Slovakia. The aim of this inquiry into the ‘large scale’ institutional design is two-fold: (1) to test whether Slovakia, a country with a strong judicial council, has performed better than the Czech Republic, a country without a judicial council, and (2) to explore how both states fare when it comes to judicial accountability in general.The structure of this paper reads as follows. Part 1 places judicial accountability to the context of transitional justice, tentatively defines the notion of judicial accountability, and discusses its relationship with judicial independence with focus on period of transition to democracy. Part 2 focuses on ‘large scale’ institutional design of administration of justice in the Czech Republic and Slovakia. It starts with a brief overview of institutional models adopted in the former Czechoslovakia, a predecessor of both states, and then proceeds to the contemporary institutional design of administration of justice in the Czech Republic and Slovakia. Part 3 first identifies the deficiencies and anomalies of the models of administration of justice in both countries. Subsequently, it provides assessment how both models fare when it comes to judicial accountability and draws tentative conclusions from the functioning of these models. Finally, Part 4 places the Czech and Slovak scenarios into the broader context of judicial reforms in the post-communist countries and identifies issues for further research.

Transitional Justice and Cultural Contexts: Learning from the Universality Debate

Whenever a society faces the difficult process of substantial political transition after a period of gross human rights violations, the issues of justice, reconciliation, truth and reparation appear on the agenda. They form the key concepts of the emerging global paradigm of transitional justice. This booming field is faced with several unresolved and contested issues one of which is a criticism based on local and cultural particularities. In this article it is argued that it is useful to draw lessons from the universality-diversity debate in international human rights law and confront them with local and cultural challenges that arise in the transitional justice context. It seems that the ideal of inclusiveness that remains hard to realise in human rights law, despite theoretical consensus, might have better chances of being put in practice in transitional justice initiatives.

Gendered Under-Enforcement in the Transitional Justice Context

Gendered Under-Enforcement in the Transitional Justice Context

TIME, PRESENCE, AND HISTORICAL INJUSTICE

ABSTRACTThe relationship between history and justice traditionally has been dominated by the idea of the past as distant or absent (and with that, irreversible). This ambiguous ontological status makes it very difficult to situate the often‐felt “duty to remember” or obligation to “do justice to the past” in that past itself, and this has led philosophers from Friedrich Nietzsche to Keith Jenkins to plead against an “obsession” with history in favor of an ethics aimed at the present. History's ability to contribute to the quest for justice, as a result, often seems very restricted or even nonexistent. The introduction of the “presence”‐paradigm in historiography can potentially alter this relation between history and justice. However, to do so it should be conceived in such a way that it offers a fundamental critique of the metaphysical dichotomy between the present and the absent and the underlying concept of time (chronosophy) that supports this dichotomy. The “presence”‐paradigm can be emancipatory and productive only if presence and absence are not perceived as absolute dichotomies. In the first part of this article I elaborate on the influence that the present/absent dichotomy has on the notion of justice by introducing a conceptual contrast between what I will call the “time of jurisdiction” and the “time of history.” The second part of the article focuses on the way certain aspects of the dominant Western chronosophy reinforce the present/absent dichotomy and thereby prevent us from thoroughly exploring the ambiguous but often very problematic presence of the past. Throughout the article I refer to the relatively recent phenomenon of truth commissions and the context of transitional justice to discuss some challenges for the “presence”‐paradigm.