Transitional Justice Research Articles

Within and Beyond Transitional Justice Shadows: Rallying Social Movements, Re-sculpting Agendas, Re-centring Historical Injustices

How do processes of contestation and resistance, emerging from the constellation of actors, impact the transitional justice landscape? This article critically explores the dynamic interplay between transitional justice and social movements within the context of continuing historical colonial injustices. Through this critical lens, it seeks to draw attention to both the potential of social movements to poke and push the conventional boundaries of transitional justice, as these movements are not mere bystanders but rather active agents who constantly ‘court’ with transitional justice via purposeful approaches aiming to reshape its contours and challenge its traditional, rigid edges. This article, therefore, argues that social movements play a pivotal role in re-sculpting the transitional justice landscape by amplifying the voices of the marginalised communities and challenging extant hegemonic narratives. By doing so, courting transitional justice through the social movements’ evolving and disruptive vehicles allows for a re-imagination of a more inclusive and nuanced understanding of justice that resonates with the changing needs and values of those re-voiced protagonists and deeply affected societies.

Moving beyond binary identities in transitional justice: recognising the complexity of agency in agonistic spaces

ABSTRACT Transitional justice (TJ) has historically struggled with understanding actors in their full complexity. Part of the underlying problem centres around the insistence within dominant TJ approaches on exclusive binary oppositions: agent vs. subject, victim vs. perpetrator, etc. These binaries make it difficult for groups experiencing marginalisation and oppression to also achieve recognition of their complexity. This paper offers an alternative conceptualisation of agency. Our argument is twofold: first, that focussing on relational autonomy rather than a liberal conception of agency offers a more holistic picture of the constraints and opportunities affecting agents’ actions in social networks; and second, that creating agonistic spaces, which centre around contestation and multiplicity, in turn fosters opportunities for an increased exercise and recognition of relational autonomy. Using interview data and archival analysis from Northern Ireland and Turkey, we demonstrate how these agonistic spaces can facilitate relational autonomy in a range of less traditional TJ arenas. In their embrace of multiplicity and rejection of a single truth, agonistic spaces are better equipped to recognise the ways in which actors can be both victims and perpetrators, marginalised and empowered. This approach offers a path for fostering new approaches to justice that move beyond a focus on punishment.

Formation of the national concept of transitive justice

The scientific article is devoted to researching the concept of transit justice and clarifying its significance for Ukraine. The concept of transitive justice is very relevant, which is connected with the spread of internal and interstate conflicts. It is noted that the national model of transitive justice is relatively new for domestic legal practice, therefore the understanding of its essence and the development of mechanisms is still at the initial stage. It is emphasized that transitive justice involves a set of measures aimed at overcoming the consequences of war and occupation and developing mechanisms that will prevent the recurrence of conflicts in the future. The concept of transitive justice is used by states that are transitioning from a state of conflict and occupation to a state of peace, it does not contain universal formulas for all states. Attention is focused on the fact that under modern conditions in Ukraine, the directions of transitive justice are implemented situationally, unsystematically and do not have proper legal consolidation. The international experience of the implementation of the mentioned concept, taking into account the Ukrainian realities, should be defined as useful. Recognition of the supremacy of international law and the tendency to increase the role of non-judicial mechanisms in the justice system will provide an opportunity to use non-judicial mechanisms in order to strengthen sustainable peace. Implementation of the principles of transitive justice affects the development of the legal system of Ukraine and should ensure its stabilization, creation of conditions for its modernization and sustainable development. At the same time, it is stated that it is necessary to carry out a lot of work to establish the reasons for which the war is taking place, to find out what happened directly during the armed conflict. It should be understood that the end of the war is not just the return of the occupied territories under the jurisdiction of Ukraine, but the beginning of a difficult path to resolve the consequences of the conflict and search for a compromise. It is emphasized that there is a real need to implement the model of transitive justice, as an important tool for resolving the military conflict and the main direction of state legal policy, in the conditions of Russia’s armed aggression against Ukraine.

International legal regulation of the application of restitution as a form of material responsibility of states

The article attempts to determine the principles of international legal regulation of the application of restitution as a form of material responsibility in international law, as restitution is a means of legal protection available to the claimant in the consideration of an international dispute, for which seized property is returned to the original owner in kind. The theoretical provisions regarding the international legal regulation of the application of restitution as one of the forms of material responsibility under international law have been analyzed, using the following sources – the UN International Law Commission (ILC); Article 35 of the Articles on State Responsibility of 2001; Permanent Court of International Justice (PCIJ) (predecessor of the UN International Court of Justice). Legal doctrine distinguishes two forms of restitution – restitution in kind («restitutio in integrum») and restoration («restitutio in pristinum»). Restitution in kind (restitutio in integrum) consists in restoring the former material situation. The second form of restitution – restoration (restitutio in pristinum) – is the restoration of immaterial rights. The issue of property restitution has been central to many political changes and peace agreements since the end of the Cold War. Restitution of property, homes, and land has been seen as a means of redressing past injustices in many forms, ranging from communist nationalization and colonial-era land confiscation to outright ethnic cleansing and war crimes. The politics of restitution often figure in broader transitional justice efforts following repression, persecution, and mass violations of human rights. Among the range of transitional justice mechanisms, restitution is most closely related to reparations, both because of their shared historical origins and because of their common desire to return victims to the conditions in which they would have been satisfied if their rights had not been violated. Practical examples of restitution that took place in the Czech Republic, South Africa, Bosnia and Guatemala were analyzed. Were studied the recommendations on how to better plan, organize and implement the restitution program in the conditions of the transition period, which were aptly described in his writings by the outstanding scientist Mr. Rhodri C. Williams [13].

Collective Agency in Reparation Politics: A Contentious Politics Perspective on Victim Mobilisation in Northern Ireland

ABSTRACT This article contributes to a better understanding of the collective agency of survivor organisations in Transitional Justice (TJ) processes by studying their claims for reparations as contentious politics. Examining two different survivor groups in Northern Ireland, we argue that applying concepts from social movement theory to understand victim groups in TJ is valuable in four ways: Firstly, it facilitates an analytical assessment of how and why survivors organise, and allows to systematically unravel the factors impacting mobilisation. Secondly, approaching survivor groups as strategic political actors engaged in contentious politics shifts the focus back to their agency as drivers of TJ. Thirdly, it helps to understand survivor groups “from within” and reveals the diversity and complexity of survivors’ identities, strategies and demands in transitional settings. Lastly, focusing on survivors’ collective agency helps to move beyond a liberal human-rights based approach to victim organisations and to consider groups acting within different moral frameworks.

Re-Imagining Transformative Strategies to End Minority Marginalization in Ethiopia

Abstract Since 1991, Ethiopia embarked on a journey to create an ethnically egalitarian state, aiming to rectify historical injustices and protect minority rights. Ironically, what was meant to be a beacon of equality has turned into a pervasive experience of minority marginalization. This stark reality underscores the failures of the existing legal and institutional frameworks. This article, therefore, critically examine the transformative strategies to end marginalization of minorities in Ethiopia. The study employed a qualitative research approach blending both primary and secondary data sources. The findings revealed that the failures of existing constitutional promises and institutional frameworks regarding the protection of minority rights, necessitating re-imaginations of transformative strategies. The study advocates for the progression of national and local minority rights institutions, the implementation of transitional justice measures, the instigation of electoral reforms, and the decentralization of power. Furthermore, the establishment of minority autonomous governance and the augmentation of local government capacity are recommended. Additionally, the formation of national minority councils, accentuating parliamentary endorsement for legislative reforms by minority representatives and public service reform is suggested to enhance minority employment opportunities. Lastly, the study recommended equal media access to promote the political participation and freedom of expression of marginalized minority groups.

In the Shadow of a Parent’s Genocidal Crimes in Rwanda: The Impact of Ambiguous Loss on the Everyday Life of Children of (Ex-)Prisoners

In Rwanda, following the 1994 Genocide against the Tutsi, many people were found guilty of genocide crimes and imprisoned. Their children ended up in a situation of ambiguous loss during and after a parent’s imprisonment. The article presents the multidimensional impact of this loss on the everyday lives of these children and their families according to key themes as they emerged from an ethnographic study in which 21 children and their family members participated. Themes include changed family dynamics and family stress, economic deprivation, incomprehension of a parent’s criminal past, the social stigma of being a child of a génocidaire, and strategies used to make the loss bearable. The uniqueness of the ambiguous loss as experienced by children of perpetrators of genocide in Rwanda compared to those of perpetrators of the Holocaust or other mass crimes relates to an amalgam of factors specific for the context of post-genocide Rwanda; major ones being the severity of genocidal crimes and gacaca courts Rwanda chose as its main form of transitional justice. The case study illustrates how using the prism of intergenerational relations helps to understand some of the transformative and enduring effects of a crisis that deeply affects a society.

The Progression of Forensics and Transitional Justice within the Framework of Technological Advancements in the Justice System

The academic community has paid surprisingly little attention to the transformative impact that forensic science has had on the way in which nations deal with their violent history. This contrasts with the growing interest in institutional and normative aspects that promote global accountability. This research contributes to the current body of literature on transitional justice by drawing attention to the innovative but unappreciated role that forensic justice technology plays in empowering victims to pursue justice, responsibility, and human rights. Even though forensic technology has made it feasible to positively identify human remains for humanitarian purposes, strong evidence from exhumations is still required in order to bring those responsible for egregious violations of human rights to justice. Within the scope of this research, interviews were conducted with forensic specialists, judges, prosecutors, and lawmakers to gain an understanding of the ways in which these tools influence accountability in post-conflict environments. It provides an explanation of how transitional justice developed concurrently with the expansion of forensic tools for investigating possible violations of human rights.

Beyond Seeing and Listening: Children Born from Conflict-Related Sexual Violence

ABSTRACT This essay discusses some points made by the three books under review regarding how children born of conflict-related sexual violence have not been seen and listened to by those working in the field of transitional justice. To this end, it explores some of the reasons behind this oversight, including generalized assumptions about their relationships with their mothers, families and communities. It also discusses some of the limitations of the current transitional justice framework to address the plight of these children. Finally, the essay emphasizes the importance of analyzing more deeply the particular context in which these children are embedded. To this end it draws from some of the frameworks presented in the three books under review, which allow for a more capacious comprehension of the situation of children born of conflict-related sexual violence.

Elite theory and politicization of negotiated settlement: challenges to peace durability in Colombia

ABSTRACT Ending civil conflict is difficult, particularly through negotiated settlements. The research finds that the durability of peace guaranteed through a negotiated settlement can be affected when the opposing elites politicize the concessions made with rebels. Through politicization, the space in societal acceptance of rebels in post-war negotiations can be used by the opposing elites to gain a political support base, thereby challenging the delicate power-sharing agreement. Further, the politicization of the deal remains a hindrance to the sequencing of Transitional Justice (TJ) goals making the society more polarized and pushing it to violence, as the transition from the civil war to peace needs compromise and calculated sequencing of goals of TJ.

Consuming the White Terror: Transmedia Adaptation and Franchise-Building of Detention

Abstract This article examines the Taiwanese video game Detention (Fanxiao 返校, 2017) and its namesake film and television series adaptations, each of which has achieved critical acclaim and commercial success. Despite the franchise’s preoccupation with the history of the White Terror, this article argues that the video game’s theme of “memory as remedy” – a crucial discourse in the quest for transitional justice in contemporary Taiwan – has been diluted rather than preserved in the process of transmedia adaptation and franchise-building. Through a close-playing of the game and close-readings of the film and TV series, I demonstrate that the transmedia development of Detention is not always unified and coordinated, but rather filled with contradictions and incongruities that lead to the displacement of historical trauma. These divergent narratives reveal how the White Terror remains contested terrain in contemporary Taiwan. Dominated by the managerial logic of media franchising, a confluence of social, political, and economic factors has made Detention a unique case for contemplating transmedia storytelling in the age of convergence culture.

The evidentiary potential of art after genocide

Documentary archives, human remains, and witness testimony are often critical to transitional justice court proceedings and peace-building projects after mass violence. But what happens when those forms of evidence are missing? Can art stand in for the dead? Considering the use of art in Vann Nath’s testimony in the trial of Kaing Guek Eav (Duch) in the Extraordinary Chambers in the Courts of Cambodia, in this paper, I argue that in the first case for the ECCC, Vann Nath’s art performed a similar role to that of human remains in other trials, providing evidence and proof of human rights violations including torture, cruel and inhuman treatment, arbitrary detention, and mass killing, while also activating affect (drawing on Hughes). As such, it provided a form of social proof, in a way similar to the human remains retained from the genocide and displayed across Cambodia. Both human remains and art draw on materiality and emotion as a means of proving violence. Positioning it as such prompts a reconsideration of the role of art in transitional justice: as well as being needed in cases where other visual evidence does not exist, art, with its ability to mobilize and communicate linguistically incommunicable affect, can be part of the evidentiary infrastructure in and of itself. Considering the place of art in trials after mass violence makes us rethink what evidence is and does. Ultimately, my argument is that to those who survive genocide or other mass violence social proof of atrocities, as provided by art, is as important as evidence deemed legally admissible to court.

The Territory as a Victim: Geological Assessment to Analyzing the Impact of Colombia’s Armed Conflict on Geo-Bio Megadiversity at the Sierra Nevada de Santa Marta

This study delves into the intricate relationship between Colombia’s status as one of the world’s 17 Megadiverse countries and the socio-environmental challenges the country faces, with focus on the geological diversity of the Sierra Nevada de Santa Marta (SNSM); the world’s highest coastal massif laying in the Caribbean Region of Colombia. Despite its natural splendors and magnificence, SNSM’s ecosystems have been significantly shaped by the enduring Colombian armed conflict (1964- latent today), leading to alarming environmental degradation that affects both geological and biological diversity, and hence the local communities inhabiting the territory. Employing modern geological methodologies such as Remote Sensing and Landscape Metrics, this research explores and quantifies the extent of degradation within the SNSM. The findings, spanning the pivotal years from 2000 to 2020, offer an innovative analysis of the Geo-Bio-Megadiverse ecosystems of the Sierra. This comprehensive examination reveals crucial insights to advancing informed environmental management, while supplying a groundwork for potential geoconservation strategies in this embattled territory; unequivocally acknowledged as a victim of a multifaceted and long-lasting socio-environmental conflict. The definition “territory as a victim” originated by local indigenous communities and is now incorporated in transitional justice systems such as the Jurisdicción Especial para la Paz (JEP, Colombia), condenses the profound violence experienced by the land, one that muted the spiritual guardians inhabiting its waters, trees, plants, soils, and stones. By spotlighting the intricate interplay between social struggles and environmental degradation as a central element of the ecosphere-techonosphere conflict in the Anthropocene, this study heightens awareness of the urgent issues confronting the SNSM, while advocating for targeted conservation initiatives to preserve its distinctive and invaluable natural heritage.

Meaningful acknowledgement: how to evaluate acknowledgement in transitional justice interactions using deliberative reciprocity?

ABSTRACT Acknowledgment of wrongdoing is considered necessary for relationship transformation in processes of transitional justice. However, the concept has only been studied in the institutional and legal context. Its social and interpersonal dimensions at the micro level remain poorly understood. This article addresses this gap by studying interactions between ordinary citizens across ethnic lines in response to war crimes trials. The article uses deliberative reciprocity to create a novel typology to identify meaningful acknowledgement in 162 inter-ethnic exchanges derived from focus groups in four former Yugoslav countries. The study also identifies what triggers this ideal type and finds that the triggers are related to conversational changes in identity constructions and knowledge claims. But the triggers only occur when individuals also endorse each other’s views across ethnic lines. The article thus shows how relationships transform in inter-ethnic interactions, even when individuals hold differing views and arguments about transitional justice.

Declining Support for the 2016 Colombia Peace Accord: Colombian Attitudes Toward Peace and Transitional Justice

Declining Support for the 2016 Colombia Peace Accord: Colombian Attitudes Toward Peace and Transitional Justice

Unsettling forensics: novel forms of necro-governmentality and alternative knowledge practices in Sri Lanka and Timor-Leste

The integration of forensic knowledge and associated practices into a growing number of human rights and humanitarian investigations, as well as transitional justice processes has led some scholars to claim a “forensic turn.” This turn is marked by the rise of forensic practices as “necro-governmental” technologies that seek to deliver certainty to the living and to the state so that a new political order can be created, a new future ushered in (Rojas-Perez, 2017, p. 19). Yet is the forensic turn truly globalized? Focusing on the cases of Timor-Leste and Sri Lanka, this article probes how states and citizens in these post-conflict settings are attempting to manage the unsettling indeterminacies of dead and missing bodies largely without recourse to forensic expertise. These cases shed light on the novel forms of necro-governmentality and alternative modes of local knowledge production that emerge in settings where there is a relative absence of forensic expertise. They also show how the necro-governmental project of fixing the meanings and identities of the dead (forensic or otherwise) is always ongoing, never fully or finally complete. This is because the unsettling indeterminacies of missing and dead bodies allow those bodies to be drawn into intimate practices of care and mourning and more public political projects that can resist attempts to close off their meanings.

Punishing Individuals Who Complied with Intolerably Unjust ‘Laws’ in Predecessor Regimes

AbstractSuppose a ‘law’ required individuals to report neighbours of a certain race for extermination. If individuals complied with such a ‘law’ to avoid the penal sanction of a death sentence, should a tribunal involved in the process of transitional justice in a successor regime punish them? Radbruch suggests that intolerably unjust ‘laws’ are not legally valid. According to Radbruch's Formula, reporting the neighbour would not be justified by law. The logical implication of this Formula is that the act of reporting was, in substance, abetment to murder (or possibly, genocide). Yet, punishing individuals who complied with the purported ‘law’ in the predecessor regime seems unfair, particularly as some legal positivists would regard the law as valid. Individuals might have acted according to what they believed was law and under duress (out of fear of penal sanction for failure to comply) in the predecessor regime. I examine whether these are valid considerations in proceedings before a tribunal prosecuting individuals for acts done in compliance with intolerably unjust ‘laws’ in predecessor regimes. While the perceived unfairness might militate against acceptance of Radbruch's Formula, if the considerations are not valid, Radbruch's Formula is unobjectionable.

Transnational corporate counterinsurgency in the Colombian conflict and its legacies today

ABSTRACT This study challenges common-sense thinking on internal violent conflicts in two ways: that they are merely domestic, with limited influence from external actors; and that doing business in conflict-ridden places is detrimental to profits. Drawing on empirical research and theoretical lenses from critical security studies and the political ecology of counterinsurgency, the paper explores the transnational dimensions of Colombia’s violent conflict in relation to the extractive sector. Conceptualising two overall generations of counterinsurgency, the article shows how, during the conflict, several transnational corporations, especially those in the extractive and agro-industrial sector, not only established themselves in Colombia and expanded, they also developed their corporate security schemes. Given that energy projects were strategic targets in the guerrilla war, the protection of corporate infrastructure by the state was justified. The paper argues that the internal conflict not only facilitated corporate extractivism, it also provided innovative ways of ensuring corporate security. This ‘social warfare’ approach includes strategic efforts to win hearts and minds, which continue to be pursued today through practices known as ‘corporate social responsibility’ (CSR). The paper relates this to the current challenges to hold economic actors accountable in transitional justice.

Storytelling and Listening in Transitional Justice Processes: Addressing the Marginalisation of More-than-Human Worlds

This interdisciplinary article makes three important contributions to discussions about transitional justice and storytelling. First, it problematises the anthropocentric character of transitional justice and the concomitant narrow focus on human-centred stories. It underscores the need for more inclusive and multispecies ways of thinking about storytelling – as a deeply relational process – and what it looks and sounds like in transitional justice contexts. Second, the article focuses not just on storytelling but also on listening, which has received little attention within transitional justice research. It reflects on the significance of soundscape ecology and argues that learning to listen to and with our soundscapes is one way of ensuring that more-than-human worlds, ‘voices’ and experiences do not remain peripheral to transitional justice. Third, the article contributes to a larger decolonising imperative. By conceptualising storytelling and listening as inherently relational practices, it de-centres liberal individualism and gives prominence to Indigenous cosmologies.

Do apologies promote the reintegration of former combatants? Lessons from a video experiment in Colombia

Transitional justice practices frequently involve public apologies where former combatants confess their wrongdoings and ask for forgiveness, with the underlying assumption that such displays facilitate the reintegration of ex-combatants into society. However, little is known about the public response to ex-combatant apologies. In this article, we investigate the causal effect of an armed group apology on attitudes toward ex-combatant reintegration in Colombia. Our study builds on a novel experiment implemented in Meta, a conflict-ridden department of Colombia. The experiment entailed exposing a subset of participants to a video in which a former rebel group leader apologizes for violent acts committed by their armed group during the civil war. To examine the extent to which external actors influence the effectiveness of apologies, we incorporated third-party ‘encouragements to forgive’ (endorsements) in two additional treatment conditions. Our analysis demonstrates that, on average, participants do not exhibit higher reintegration attitudes when exposed to the apology, regardless of third-party endorsements. However, the absence of a treatment effect is not due to an indifference to the apology. In an exploratory heterogeneity analysis, we show that the apology induces negative effects on some indicators of reintegration attitudes among participants that did not support the peace agreement. This finding aligns with qualitative data gathered in a follow-up survey, which indicates that opponents of the peace agreement generally describe negative emotional responses to the FARC-EP apology. The results call for a reconsideration of unchallenged prescriptions of public apologies after conflict.