Transitional Justice Framework Research Articles

Race, reconciliation, and justice in Australia: from denial to acknowledgment

ABSTRACTThe harm perpetrated by the state of Australia against it Indigenous peoples has been structured, prolonged, and driven by race. In this paper, we conceptualize this harm and how it has been denied (and particularly how race has affected this harm and its denial). Although transitional justice literature has not traditionally been applied to an established democracy like Australia, we demonstrate why it is appropriate to apply transitional justice practices to the relationship between the Australian state and Indigenous peoples, and what transitional justice practices might provide in the Australian case. In particular, we argue that a transitional justice framework may allow Indigenous voices to name the harm inflicted on them, and position the state as acknowledging the harm that they have perpetrated – bringing a fundamentally new relationship between the state and Indigenous peoples.

Decolonization as reconciliation: rethinking the national conflict paradigm in the Israeli-Palestinian conflict

ABSTRACTThis paper argues that thinking about reconciliation in the Israeli-Palestinian conflict requires a paradigmatic shift in conflict analysis. The international community has approached the Israeli-Palestinian conflict as a national conflict between Zionism, as the national movement of the Jewish people, and the Palestinian National Movement. The partition plans proposed from before 1947 until the recent “two-state solution” formula have all been based on this assumption. I argue that the premise of national conflict is fundamentally flawed, and, therefore, reaching a settlement based on partition – let alone reconciliation – is becoming increasingly unlikely. A new paradigm (in the Kuhnian sense) is needed that applies a settler-colonial framework to the conflict while also taking into consideration the national component. Reconciliation in this conflict is conceived as decolonization within a transitional justice framework. This approach overcomes major pitfalls in the hegemonic discourse on reconciliation in this conflict, including the symmetrical analysis and psychologizing the process.

Development vs peace? The role of media in the Law of Victims and Land Restitution in Colombia

The Law of Victims and Land Restitution, ratified in June 2011 and enforced since January 2012, constitutes an unprecedented attempt to end armed conflict in Colombia by applying a transitional justice framework and fostering rural development. Drawing on a methodology that integrates framing and rhetorical analysis, this article analyses the role of seven national and local Colombian newspapers in promoting governmental or alternative actors and frames regarding institutional, developmental, and peace and human rights agendas linked to this legislation. In addition, it evaluates the influence of rhetorical framing on media’s role and the resulting quality of media coverage. The results show that the media promoted governmental frames regarding institutional and developmental issues, and alternative frames advocated by other actors in relation to peace and human rights issues. In addition, they confirm the key importance of rhetorical framing in shaping that role. This was detrimental to the quality of media coverage geared towards sustainable peace and human development.

Colombia and Bosnia, Victims and Peace: And Justice for All?

The article discusses shifts in transitional justice approaches by comparing the Bosnian experience of justice agreements and practices with the current Colombian framing of transitional justice agreements within the context of the ongoing peace process between the FARC-EP and the Colombian government. The transitional justice framework for a post–agreement transition in Colombia can be analysed through the lenses of different questions: Is the objective of this framework to ensure justice? Or is the goal of transitional Justice reconciliation? Are the transitional justice agreements informed by retributive or reparative understandings of justice? Is local justice more important than international justice? To discuss the answers to these questions, the article compares the peace building experience of Bosnia-Herzegovina with the current Colombian peace process, particularly in regard to the transitional justice framework agreed upon in these processes.

To Ruin the Repairs: Milton, Allegory, Transitional Justice

International legal theorists posit historical moments when conceptions of justice are “constituted by, and constitutive of, the transition” (Teitel). This article uses the framework of transitional justice to understand the cultural work of political allegory in the spring of 1660 on the eve of the English Restoration. Insights from transitional justice (1.) help explain how Anglican royalists convinced wary Presbyterians to assent to a restoration of the monarchy; (2.) permit a new reading of Milton’s allegory of Sin and Death in Paradise Lost; and (3.) facilitate a more critical history of the framework of transitional justice itself.

The Special Criminal Court and Other Options for Accountability in the Central African Republic: Legal and Policy Recommendations

This paper examines the proposed options for justice and reconciliation in the Central African Republic and proposes policy recommendations on how mechanisms identified should be implemented. It provides a detailed analysis of the relationship between various options for justice, including the International Criminal Court and the proposed Special Criminal Court considered within the national transitional justice framework – the Republican Pact for Peace, National Reconciliation and Reconstruction – agreed upon by the Bangui Forum on May 11, 2015. With respect to the Special Criminal Court, it reflects upon its operation based on the current text of the law, and proposes policy recommendations drawn in part from the experience of similar courts as they relate to subject matter jurisdiction, the prosecutorial function, victims’ rights, witness protection, the court’s relationship with other courts as well as non-judicial accountability mechanisms. The paper discusses how mechanisms of (criminal) accountability relate to the broader transitional justice project, including constitutional reforms and others aimed at establishing peace and stability. Adopting a broad conception of justice – one that is not restricted to retributive justice – the paper locates victims within the transitional justice and criminal accountability project and argues that peace and stability as long term goals will remain elusive if the concerns of victims – however defined – are not addressed. The paper consequently argues that policy makers must fashion responses that address a multiplicity of concerns and interests in the Central African Republic.

Seeking Justice for Wartime Sexual Violence in Kosovo

At different times, and for different reasons, Kosovo informal and organized women’s networks have dealt with wartime sexual violence in different ways: they have followed either a strategy of silence or one of speech. Throughout, they have struggled to disentangle gender from ethnicity, straddling the line between a deep connection with local culture and domestic and international norms and agendas. This article tells their story, which in broader terms is the story of the subjectivity of women’s rights activists—domestic and international—as it connects with the normative framework of transitional justice. The case of Kosovo shows that transitional justice meaningfully engages local actors as a human rights project sensitive to political change, more than as a “toolkit” which packages truth, reconciliation and justice with recipes for implementation. The case of Kosovo also confirms that lobbying by women’s networks is crucial to the inclusion of women’s perspectives in transitional justice, and that the exclusion of women from decision making results in a net loss for women’s concerns. I would take the argument even further, and suggest that the inclusion of women and their agendas, as well as the struggle by women’s networks for inclusion, is necessary for human rights transformation.

BEAR WITNESS: Dua Wacana Tentang Kesaksian Dan Kebenaran

The meaning of testimony and truth play an important role in both a legal/judicial discourse and a religious, particularly Christian discourse. I trace the history of testimony in legal discourse, beginning with the Hammurabi Code and its influence on ancient legal codes of Mesopotamia, including that found in the Pentateuch and continue with a discussion of multiple meanings of testimony in Augustine and French philosopher, Paul Ricœur that begin to lay the groundwork for bridging the two discourses. Contributions from feminist theology, particularly the validation of women’s experience as a source of theology, the role of immanence, and the shift from understandings of power as “power over” to “power with” as well as a transitional justice framework help make the case for dialog between these two discourses so they can enhance and strengthen each other. I include in sections of the article my own narrative to accent the theme of testimony. 
 
 
 Keywords: Kesaksian, kebenaran, konteks hukum, pengadilan, konteks iman, hermeneutik.

Transitional Justice and Postconflict Reconstruction in Somalia: The Role of the African Union and Pointers Provided by It

Abstract Postcolonial Somalia is riddled with contradictions. While some of the contradictions relate to the disjuncture between the state and traditional social dispositions, a significant part could be attributed to Somalia's encounters with externalities. The encounters have often produced defining consequences, some of which conjure violence and paradoxes, manifested in various forms with considerable impact on state and society. And so, since its formal state organs “collapsed” in 1991, Somalia has been subject to sequences of episodes with outcomes that have confined it to a state of conflict and conflicting paradigms. It follows, therefore, that an imagination of a future Somalia requires a transcendent approach sufficient to enforce an emancipatory postconflict order. This article argues that for such a vision to be realized, a reconstruction agenda built around an integrated transitional justice framework ought to be set out. But as the article further claims, such a framework must be constituted with caution, especially given that the effects of the Somali condition are so vast that an orthodox transitional justice approach would be inadequate. What ought to be pursued, it is argued, is a transformational framework capable of reaching out and tapping into the strength and heritage of Somali social institutions. In the African Union's evolving transitional justice framework, this article argues, there appears to emerge the formulation of an integrated nonhierarchical model that could offer a valuable template for Somalia.

Reconciliation and truth in Kashmir: a case study

The past two decades have witnessed two distinct phases of the conflict in Indian Administered Kashmir. What started out as a civil conflict in 1989, with active Kashmiri participation in an armed struggle for secession from India, based on the right to self-determination, as recognised by the United Nations Security Council has since transformed into a peaceful and non-violent agitation for the same right. The conflict has spawned massive violations of human rights, by both Indian security forces and ‘militants’ clashing with them, the former outnumbering the latter: the average Kashmiri has borne the brunt in either case. Though a fraction of what it was even seven years ago, the violence continues, causing severe social, economic and psychological crises among Kashmiris. This paper attempts to start a discussion on these problems, within a transitional justice framework, and explores the possibility of establishing a truth commission to address human rights violations committed by both sides of the conflict. The author contends that the transition in Kashmir from a ‘conflict’ to a ‘post-conflict’ situation has already begun, and that establishing a truth commission is an important way to formalise that break. The article is based on primary research, through interviews conducted in Kashmir in August 2009 with leaders of separatist and mainstream political parties, and with victims’ groups, to elicit their opinions on the need for a truth commission, and to ask them about the scope, composition and general powers they would envisage for any such commission, if it were established.

Legitimacy, Scope, and Conflicting Claims on the ICTY: In the Aftermath of Gotovina, Haradinaj and Perišić

Within the span of three months in 2012/2013, the International Criminal Tribunal for the former Yugoslavia (ICTY) handed down three major acquittal verdicts: two Croatian Army generals, three members of the Kosovo Liberation Army, and a high ranking Serbian army general. This article analyzes the political fallout from the acquittals to make three principal arguments. First, in the absence of broader transitional justice framework in the former Yugoslavia, the ICTY has become the principal instrument of both retributive and restorative justice, which places undue burdens on an institution with a narrow and technical mandate. Second, the ICTY has brought this unrealistic expectation on itself by legitimizing its work to hostile domestic publics as a path to reconciliation and creation of a historical transcript—promises that a court is not equipped to either make or keep. Third, the human rights community in the region has relied on the ICTY to be its “force multiplier” in building transitional justice efforts. This has further conflated the role of the international court with homegrown transitional justice campaigns and has made the political challenges for local efforts much more daunting.

Peacebuilding and the postcolonial politics of transitional justice

The literature on transitional justice tends to conceive of transition as a bounded process that takes place immediately following a conflict, rather than envision the process as part of building peace. Significantly, this literature tends to separate historical conflict and contemporary transition. While the similarities between historical and recent conflict are often acknowledged, the remedies available under the transitional justice framework are rarely applied to the violence and historical injustice that are inherent to settler colonialism. This omission creates some troubling silences in the transitional justice literature, which this article seeks to address through drawing on critical peacebuilding scholarship. This article considers what might be learned about the processes and challenges of transition by expanding the temporal frame in which transitional justice is placed. The article suggests that transition may in fact be a far lengthier, more complex, and more challenging process than the literature generally concedes. More significantly, by focusing on colonial violence, the conventional conceptualisations of both ‘transition’ and ‘justice’ can be challenged.

Justicia transicional y derecho a la reparación integral aproximación al caso colombiano.

A pesar de que en los últimos años se han adelantado en Colombia diferentes esfuerzos por parte del Estado para garantizar la reparación integral a las víctimas de violaciones a los derechos humanos como parte de una política social gubernamental, la realidad permite sostener que aún han quedado muchas tareas pendientes frente a la exigibilidad y materialización de estas garantías sociales, colectivas e individuales, sobre todo en momentos en los que se pretende construir un marco jurídico de justicia transicional, mientras aún se reproducen las condiciones propias del conflicto armado interno no declarado. La realidad social, económica y política en la que se adelantan ingentes esfuerzos por obtener un acuerdo de paz con una facción de los actores armados del conflicto supone un acercamiento a la construcción de unas condiciones que redundarán en la producción de normas de transición.

Revisiting the Conceptual Framework of Transitional Justice: Some Critical Notes

Scholars generally agree that transitional justice represents a framework of mechanisms that works to restore the rule of law and justice through both judicial and non-judicial responses. From the outset, transitional justice comprises a broad, complex and elusive conceptual framework. This is necessarily so because the measures to be employed vary from case to case and country to country. Likewise, adopting a mechanism that has been successful in one country will not necessarily achieve the same results in another country, or at another time once and for all. In this perspective, the article attempts to review the conceptual framework of transitional justice. It presents analytical description on transitional justice concerning definition, goals, development and comprehensive mechanisms.

Thinking Critically about Armed Groups and Human Rights Praxis

This article critically examines the relationship between the human rights movement and armed groups. Drawing upon a wide array of case studies, it examines some of the most important legal and policy developments which have shaped this field since the 1980s. It also critically explores some of the theoretical and practical models of interventions which have been deployed by different human rights organizations concerning abuses by armed groups. The paper then explores the dilemmas of engagement with armed groups while managing the difficulties associated with conferring legitimacy on such groups. It also explores how human rights groups deal with the realities of the involvement of some armed groups in governance functions within their own communities. Finally, we identify two areas where we believe important future developments in this field could be directed: the framework of transitional justice, and the role of human rights organizations in navigating the increasingly blurred boundaries between some armed groups and organized crime

"Rescues for Humanity": Rescuers, Mass Atrocities, and Transitional Justice

This article is probably the first work to explore systematically the commemoration of rescuers from a human rights and transitional justice perspective. It argues that the documentation and commemoration of acts of rescuers during mass atrocities should become an integral part of the human rights response to such atrocities. These undertakings could make important contributions to the goals of post-conflict reconstruction, especially in relation to conflict-transformation between communities, and to confronting the role of passive bystanders. The article first develops the concept of "rescues for humanity" to elucidate the significance of rescues in the transitional justice framework and, after reviewing existing initiatives, it moves on to identify the potential benefits of such undertakings, as well as the challenges and risks involved in the documentation of rescues.

Psycho-Social Aspects Surrounding Criminal Investigations into Mass Graves

In the context of transitional justice, forensic investigations into mass graves aim to respond to the humanitarian needs arising from human rights’ violations or to satisfy legal, evidentiary requirements. Whilst victims are cited as the main rationale behind international criminal justice, the actual investigative and prosecution procedures may not focus on the psycho-social ramification these activities have for survivors. This becomes particularly evident when considering forensic investigations of mass graves. Anchored in the transitional justice framework, the article identifies and examines issues surrounding excavations such as 1) religion, culture and commemoration; 2) history, revisionism and demystification; 3) identification; and the 4) impact on the domestic judiciary and capacity-building within the Cambodian and Yugoslavian context. Finally the article asks whether it is the duty of investigations to take psycho-social factors into account when embarking on forensic missions.

The Legal Framework of Transitional Justice

The Legal Framework of Transitional Justice

Expanding the scope of post-conflict justice: Individual, state and societal responsibility for mass atrocity

Over the past two decades, a new international regime of individual criminal accountability has emerged as a dominant regulatory mechanism to address gross human rights violations. At the same time, states are still pursuing claims against each other for human rights abuses in international courts. These two concepts of responsibility — individual and state — are not only fundamentally at odds with one another; they also exclude the third, critical aspect of political accountability — societal responsibility for past violence. This triple accountability — of individual perpetrators who committed the crimes, of the state that hired them to implement the practices, and of society that supported or tacitly approved repressive state policies — is a complex political condition that the current transitional justice framework is ill equipped to deal with. Individualization of accountability serves the retributive purpose of justice, but it is woefully inadequate to address the collective political ideologies that made such heinous crimes possible in the first place. Domestic elites can be enthusiastic supporters of individual human rights trials — not because they want to bring about justice, but because they want to shield the state and society from complicity in past crimes. To address this paradox, this article presents a new framework of post-conflict accountability that includes individual, state, and societal responsibility for human rights violations. The framework is then applied to the case of Serbian responsibility for war crimes committed in Bosnia.

‘Does the truth pass across the fire without burning?’ Locating the short circuit in Rwanda's Gacaca courts

ABSTRACTThe modernised tradition of the Gacaca courts has become the key mechanism for dealing with the past in Rwanda. The process needs to establish accountability for all acts of genocide and to foster reconciliation. Nevertheless, popular narratives and survey results reveal that a widespread ‘crisis’ accompanied the initial stages of the Gacaca process. We argue that a problematic quest for the truth is short-circuiting reconciliation in post-genocide Rwanda. Truth-telling is the cornerstone of the transitional justice framework due to the design of the Gacaca tribunals. On the basis of twenty months of fieldwork in Rwandan villages, we locate tensions at different levels. The Gacaca system is a distinctively modern phenomenon despite its traditional appearance. The state-sanctioned speaking of the truth according to a prosecutorial logic runs counter to the core values of the customary institution and established societal practices. This friction is further enhanced by the underlying Judeo-Christian model of truth-telling introduced with the Gacaca system in a socio-political environment mediated by a culture of deceit and dominated by a war victor. In such a socio-cultural context, communication serves the interests of the power holders (national and local), and not necessarily the interest of truth-telling and justice.