Transitional Justice Mechanisms Research Articles

Civil Society and Gender-Based Violence: Expanding the Horizons of Transitional Justice

.The transitional justice field has thus far neglected the nature, scope and impacts of civil society initiatives for addressing gender-based violence. Using a feminist framework of analysis, I examine the role of civil society tribunals as a transitional justice mechanism. Despite their limitations, I argue that civil society tribunals can provide recognition for victim suffering, as well as challenge dominant narratives, explore the underlying individual and structural causes of violence and propose solutions to achieving non-violence and gender equality. Overall, I argue that transitional justice is a useful conceptual framework for examining civil society activity in addressing gender-based harms.

Memories of Violence: Micro and Macro History and the Challenges to Peacebuilding in Colombia and Northern Ireland

Historical memory of mass violence and war crimes plays a central role in a nation or an ethnic group's cultural identity, but is not given adequate attention in the politics of conflict resolution. The article argues that it is wrong and counterproductive to treat history as exclusively belonging to the past or as too complicated, and therefore to ignore it politically. Northern Ireland invested heavily in various transitional justice and conflict resolution mechanisms, but resolutely avoided efforts to bridge sectarian histories. This experience is juxtaposed to Colombia, where during the peace negotiations a historical commission was established to explore narrowing the sectarian disagreements through legitimizing their historical memories. What can the field of conflict resolution learn from the Colombian experience? Do historical commissions provide an additional tool for transitional justice and conflict resolution?

Justice Claims in Colonial Contexts: Commissions of Inquiry in Historical Perspective

.This paper considers the ways in which commissions of inquiry, as historical antecedents to the contemporary transitional justice mechanism of the truth commission, have been employed by colonial and former colonial powers in the past and present. Engaging with three commissions of inquiry undertaken by colonial and former colonial authorities regarding the Morant Bay Rebellion (1865), Rwandan genocide (1997) and the Coranderrk Aboriginal Reserve (1881), we demonstrate how commissions of inquiry can function to limit legal and political recognition of the underlying inequality of colonial relations and the need for broader structural reform. Despite this, we indicate the possibilities that remain in the articulation of claims to commissions of inquiry, which can open up spaces for structural injustices to be openly brought to the fore and put on record.

Corporate accountability in times of transition: the role of restorative justice in the South African Truth and Reconciliation Commission

ABSTRACTConsensus is building around the need for transitional justice to secure redress for corporate human rights abuses. However, there has been less scrutiny of the transitional justice mechanisms to be deployed in pursuit of corporate accountability. This article therefore questions the extent to which truth commissions and restorative justice theory can serve the aims of corporate accountability in the context of transitional justice. To do this, the article examines the Business Hearings held by the South African Truth and Reconciliation Commission, in particular focusing on the interactions between the Congress of South African Unions and Anglo American Corporation. The findings reveal how the rhetoric of restorative justice was used as a basis for reintegrating business into post-apartheid South Africa, whilst denying the need for reparations. The article concludes by addressing key lessons learnt, and warns against relying on truth commissions as a basis for delivering corporate accountability w...

Truth Commissions: Memory, Power, and Legitimacy by Onur Bakiner

Reviewed by: Truth Commissions: Memory, Power, and Legitimacy by Onur Bakiner Katharine Richards Onur Bakiner, Truth Commissions: Memory, Power, and Legitimacy. Philadelphia: University of Pennsylvania Press, 2016. 328 pp. After periods of mass violence, transitional governments are often called upon by their people, human rights groups, and international organizations to right the wrongs of the past. A truth commission is a restorative justice approach that investigates past abuses to expose what happened to whom, where, how, and by whose hands. Many individuals and groups that have a stake in the formation of the new nation-state question whether truth commissions can provide justice in a meaningful way or if criminal trials are better suited for the task. It is now most often recognized that both are essential in this liminal period, though the timing and relationship between them is disputed (Lutz 2006). Over the past 40 years, truth commissions have been formed around the world to address different situations, but they all share a desire to debunk prevailing narratives that gloss over exploitation and brutality. Scholars and proponents of liberal, democratic development examine what aspects of truth commissions are successful because they represent a hope to overcome horrible violence and suffering and to forge a new nation-state that honors human rights. As the intent and form of truth commissions changes over time, they are scrutinized from all angles to understand their role in the development of society and their contribution to justice for human rights abuses. Anthropological studies in particular examine local understandings of justice, the tensions between local, national, and global objectives, and how truth commission processes prioritize and ostracize particular groups (Wilson 2001, Theidon 2012, Shaw 2014). In many ways, Onur Bakiner’s Truth Commissions: Memory, Power, and Legitimacy is a remarkable addition to the growing literature on truth [End Page 925] commissions. It draws upon the scholarly research of multiple disciplines to examine the impact of truth commissions as a mechanism of transitional justice on a practical level and contributes to our theoretical understanding of how truth commissions are shaped by and influence society. While Bakiner approaches this subject as a comparative political scientist, the work is informed by and makes some contributions to anthropological studies of transitional justice and human rights. This examination incorporates existing qualitative studies into the author’s own semi-structured interviews and archival research and comments on more recent quantitative studies. It recognizes that ethnographic research has brought to light complex power dynamics of truth commissions and has shown that each truth commission must fit the particular social, economic, and political circumstances in opposition to a one-size-fits-all approach. He also condones further ethnographic studies that seek to better understand the complexity of peoples’ identities and roles in times of conflict. Bakiner refers to Richard A. Wilson’s discussion of “elective affinities between global human rights and particular social constituencies” (2006:77–78) as an inspiration from which to consider those relationships mediated by the truth commission process (243). The role of truth commissions are then considered in light of broader theoretical discussions of truth, memory, and politics. Bakiner’s conclusions, as noted in more detail below, are in line with the current direction of anthropological studies that examine truth commissions both more closely from a local perspective and as one part of larger national and global initiatives. Truth Commissions is organized into three parts that together analyze the existing research on truth commissions, in addition to Bakiner’s own in Chile and Peru, to measure their impact and propose guidelines for the development of future commissions that are thoughtful and valuable. Part 1 is dedicated to a close examination of truth commissions in which Bakiner notes how the high degree of variation in choices made by scholars to classify something as a “truth commission” contributes to different conclusions regarding their effectiveness. For Bakiner, a truth commission “is a temporary body established with an official mandate to investigate past human rights violations, identify the patterns and causes of violence, and publish a final report through a politically autonomous procedure” (24). Though they overlap, Bakiner’s definition is stricter in its requirements than the one advocated by Priscilla Hayner (2011...

Forensic excavations and burials in Uruguay, 2004–10

This article will describe the contemporary scientific techniques used to excavate and identify the dead bodies of disappeared detainees from the Uruguayan dictatorship. It will highlight the developments that have led to increased success by forensic anthropologists and archaeologists in uncovering human remains, as well as their effects, both social and political, on promoting the right to the truth and mechanisms of transitional justice.

Transitional justice and democratisation nexus: Challenges of confronting legacies of past injustices and promoting reconciliation within weak institutions in Kenya

Following the post-election violence (PEV) of 2007–8, which almost jettisoned the country into civil war, Kenya put in place a number of transitional justice mechanisms, such as truth telling, as a peacebuilding strategy. One of the major recommendations of Kenya’s Truth, Justice, and Reconciliation Commission (TJRC) is the creation of institutions and mechanisms for peacebuilding, reconciliation, and early warning with a view towards harmonising their activities and adopting a coordinated approach. This article explicates the centrality of democratic institutional reforms in the process of reconciliation, peacebuilding, and long-term stability. In tackling the notion of national reconciliation as a central pillar in post-conf lict recovery and peacebuilding, this paper proposes that reconciliation happens within strong and properly functioning institutions of governance that are supportive of transitional justice mechanisms. Based on the transitional justice process in Kenya and building upon a view of reconciliation as a process, rather than an end, this paper argues that strengthening institutions that function within governance structures will go a long way towards placing Kenya on the path to reconciliation, national cohesion, and long term stability. Keywords : Kenya, transitional justice, democratisation, reconciliation, institutional reforms, TJRC

Heavy Hands, Helping Hands, Holding Hands: The Politics of Exclusion in Victims’ Networks in Nepal

In recent years, attention has been paid in scholarship and practice to the need for ‘victim-centeredness’ in transitional justice (TJ) programming. Despite this, transitional mechanisms often underappreciate or obscure the critical dimensions of agency, the complexities within and between victim-centered mobilization and the experiences of such networks with TJ processes. Furthermore, they fail to capture victims’ experiences as political actors, while promoting an understanding of this group as a single, indivisible whole. This article engages with contentious dynamics within the victim landscape through a case study of Nepal, raising critical questions about who constitutes the terrain of victims, who has a role in the design of TJ mechanisms and how international involvement has created opportunities and constraints in a diverse landscape of victims’ networks. It also calls for a deeper examination of how, within a global context of norm dispersion, the persuasive power of transnational advocacy networks and the expansion of the TJ discourse, victim-centered advocacy remains largely ignored as a political force. The article argues that neglecting the complex realities of victimhood, compounded by the dominance of standardizing global norms, institutionalized structures such as truth commissions and the prominence of the ‘elite’ local’s concerns, can alienate and even delegitimize grassroots victim-centered activism or reduce consultations with such groups to a form of tokenism. In so doing, the elite drivers of TJ processes continue to define the parameters of victimhood.

Idealist or Realist Transitional Justice: Which Way for Zimbabwe?

AbstractThere are two dominant theories that elucidate the broad choice of transitional justice mechanisms available to societies with a history of gross violation of human rights, the realist and ...

Goals and processes: the Arab world and the transitional justice impact literature

This article uses the cases of Iraq, Algeria and Morocco to highlight some of the limitations of the transitional justice impact literature, which often assumes direct, linear relationships exist between transitional justice mechanisms and a variety of outcomes. In several respects, these countries' experiences differ from the expectations of recent studies. Although not equally flawed, in each case, transitional justice has been used to legitimise the current regime and, particularly in Iraq, to exact revenge against the ancien regime. Simultaneously, the demands of victims have largely been given short shrift. Viewing transitional justice in these countries as a process, as has been suggested, may be useful theoretically, but does not necessarily give more reason for optimism. The article offers provisional conclusions regarding these cases and discusses what lessons they provide for the impact literature and for the post-2011 Middle East. In particular, retributive measures appear to have particularly negative consequences in unstable conditions or in contexts where real political transition does not occur.

Responsabilidad corporativa y justicia transicional

Traditionally, transitional justice processes do not address the role of corporations in dictatorships or in armed conflicts that give rise to the need for dealing with grave and systematic human rights violations. However, there is a growing awareness that in many contexts corporations contribute to these violations, often in the form of corporate complicity with the principal violators. An argument can therefore be made that to achieve the aims of transitional justice and establish a holistic narrative of the past as well as obtain justice and reparations for victims requires investigating and addressing the role of corporate actors. This article uses the example of Colombia’s Justice and Peace process to show some of the complexities, opportunities and challenges that arise if transitional justice measures focus primarily on criminal law and create a specific legal framework, outside of the ordinary justice systems, only for a limited group of primary perpetrators, in the Colombian case for members of the armed groups who demobilised. It is argued that the exclusion of corporate actors in contexts where their role is regarded as significant leads to victims seeking alternatives ways to obtain justice and that both victims and corporations would benefit if transitional justice mechanisms addressed the role of corporations.

Timing, Sequencing, and Transitional Justice Impact: A Qualitative Comparative Analysis of Latin America

Transitional justice (TJ) scholars are increasingly concerned with measuring the impact of transitional justice initiatives. Scholars often assume that TJ mechanisms must be properly designed and ordered to achieve lasting effect, but the impact of TJ timing and sequencing has attracted relatively little theoretical or empirical attention. Focusing on Latin America, this article explores variation within the region as to when TJ occurs and the order in which mechanisms are implemented. We utilize qualitative comparative analysis (QCA) to assess the impact of TJ timing and sequencing on democratic development. We find little evidence for path dependency owing to the chronological order of mechanisms. We do find, however, that amnesties and trials approach a sufficient condition for democratic consolidation in Latin America; trials, however, come closest to being a necessary condition for successful democratic consolidation.

Understanding the Relationship between the Rule of Law, Judicial Reform, and Transitional Justice

In the transitional justice literature it is often assumed that transitional justice mechanisms, such as trials, improve the rule of law, as well as strengthen democracy and human rights protections. Although there is a lively debate on the causal relationship between transitional justice mechanisms, and democracy and human rights, we still know little about the relationship between transitional justice and rule of law. But what is it about rule of law that makes accountability mechanisms more likely? If judicial reform aims to strengthen the rule of law, how does it relate to accountability mechanisms? Departing from an institutional- and process-oriented view of rule of law, in this paper I engage with some of these questions. The paper aims to provide a preliminary exploration on the theoretical links between judicial reform, domestic legal norms and institutions, and efforts for prosecuting human rights violations, through an empirical comparative analysis on Latin America.

Acknowledging the Suffering Caused by State-Mandated Sexual Violence and Crimes: An Assessment of the Iraqi High Tribunal

The Iraqi High Tribunal (IHT), as a mechanism of transitional justice, took upon it a pioneering role within the Middle Eastern Region by prosecuting and convicting several high-ranking members of the former suppressive regime in Iraq. As part of this work, the IHT confronted the widespread impunity for and disregard of gender-based crimes, such as rape and other sexual violence, and took steps towards reforming the sector through its progressive statute and the specific acknowledgment of gender crimes within its judgments. It will be the aim of the following article to extend academic writings on Iraq, the IHT and gender, by providing insights into how the tribunal dealt with the issues of rape and sexual violence, the surrounding circumstances and how successful the IHT's recognition of these crimes proved for transitional justice in Iraq.

The Limits of Observation for Understanding Mass Violence

AbstractQuantitative analyses have the potential to contribute to transitional justice mechanisms, via empirical evidence supporting the memory of victims, allocating proportional responsibility among perpetrators, determining legal responsibility, and supporting historical memory and clarity. However, most data available in transitional justice settings are incomplete. Conducting quantitative analyses relying solely on what is observable and knowable leads to not only incomplete but often incorrect analytical results. This can harm rather than contribute to transitional justice mechanisms. This article outlines different types of data, the ways in which observable data, on their own, are insufficient for most quantitative analyses of interest, presents these limitations via a case study from Syria, and introduces statistical methods to overcome these limitations.

Martha Albertson Fineman and Estelle Zinsstag (eds),Feminist Perspectives on Transitional Justice: From International and Criminal to Alternative Forms of Justice

Dismantling structures that perpetuate human rights abuses to facilitate transition from conflict to stability lies at the crux of the transitional justice movement. It would seem, then, that the process of transition presents the perfect opportunity to challenge paradigms that are harmful to women. However, transitional justice mechanisms typically pay little regard to the specific plight of women. In Feminist Perspectives on Transitional Justice, editors Martha Albertson Fineman and Estelle Zinsstag have taken on this issue in a provocative collection of 14 essays placing gender front and centre in the transitional justice discussion. Organized into four parts, the volume opens with a feminist take on theoretical approaches to transitional justice in Part One. Part Two considers various legal strategies employed in transitional justice from a feminist perspective, including at the international criminal tribunals, whereas Part Three highlights non-legal alternatives such as truth and reconciliation commissions (TRCs) and community-driven efforts. The volume concludes with case studies on the application of particular transitional justice methodologies in Part Four.

Participatory Methodologies with Victims: An Emancipatory Approach to Transitional Justice Research

Abstract Transitional justice seeks to address legacies of violence around political transition from authoritarianism and armed conflict. It does so in ways driven by a global discourse that is prescriptive and often remote from the contexts in which it is articulated and the populations it claims to serve. Transitional justice is also embedded in teleological liberal approaches to transition, with a perceived endpoint of liberal democracy. Critical approaches to transitional justice have used qualitative methodologies to understand the agendas of those—notably victims of violence—that transitional justice foregrounds, and to demonstrate that transitional justice mechanisms often serve elite agendas, while minimizing the agency of socially excluded populations. An alternative, minimally explored route to victim engagement with such processes has been the mobilization of victims and victim organizations, an emancipatory approach that seeks to provide a space for victims to engage in transitional justice debates on their own terms. Here, a research engagement with a victims’ organization through a Participatory Action Research modality is described in which researchers support victim engagement in peer research to catalyze a social movement of victims in post-conflict Nepal.

Victims, Nonvictims and Their Opinions on Transitional Justice: Findings from the Colombian Case

Victims of armed conflict are often seen as driven by trauma-related stark emotions that differentiate them from nonvictims. Based on this premise, they should hold different views from people who have not been directly affected by war about punishing perpetrators of violence, remembering human rights violations, seeking truth and receiving reparations. The resilience literature, on the contrary, has downplayed the role of traumatic experiences in shaping people’s views and rather stressed their ability to cope with adversity. In this article, we ask whether there are any differences in attitudes toward transitional justice mechanisms between victims and nonvictims, using a representative sample of the Colombian population (n = 1,843, of whom 315 are conflict victims). We find almost no statistically significant differences. Psychological resilience among victims may account for this counterintuitive finding. However, we suggest that social desirability biases, a pervasive impact of the long conflict beyond the victim/nonvictim divide and social proximity between victims and perpetrators may also be relevant explanations. Our results are relevant for scholars and policy makers, as they question elements of common (yet untested) wisdom about the political and social impact of violence on individuals’ attitudes and about the prospects of peaceful coexistence.

Beyond Justice, Beyond Peace? Colombia, the Interests of Justice, and the Limits of International Criminal Law

This paper explores the role of Article 53 of the Rome Statute and its ‘interest of justice’ standard in Colombia. After first providing some background to the ICC’s involvement in Colombia in the context of the so-called Justice and Peace Law and the more recent Legal Framework for Peace, we critically explore the reasons why the principle of complementarity is the focus of contemporary debates on the ICC in that country. We suggest that this discussion often ends in stalemate, with little space to move forward. In light of this, in this article we propose an alternative way to advance the discussion; namely, Article 53. We then consider whether, in order to protect transitional justice mechanisms adopted by states in order to end conflicts and move towards national reconciliation, the OTP has the power under Article 53(1)(c) to stop a prosecution on the basis that it is not in the interests of justice. Much here depends upon whether justice is interpreted broadly or narrowly. Two questions are central: First, should transitional justice arrangements be permissible under the legal framework established by the Rome Statute? Second, should the OTP concern itself with matters pertaining to domestic politics or should it understand its role as being completely independent from national processes? We advocate a narrow reading of the concept of justice, meaning that the OTP cannot use Article 53(1)(c) to prevent ICC intervention on the basis that it risks disrupting a transitional justice mechanism.

The Pitfalls and Politics of Holistic Justice

AbstractThis article critically assesses the concept of the complementarity of means, a concept that underpins the ‘holistic justice’ turn in postconflict policy making. Our concern is with how global transitional justice strategies are being informed by a compelling but vague ideal of institutional cooperation. Drawing on research into Sierra Leone's ‘two tracks’ of transitional justice, we argue that political interaction between the two mechanisms and a contentious, ad hoc learning process between the Special Court for Sierra Leone and the Truth and Reconciliation Commission were crucial to the way the complementarity of means has come to underpin the holistic justice agenda. We caution that by treating the complementarity of means as a mechanical outcome of the mere existence of separate transitional justice mechanisms, global policy makers have drawn the wrong empirical lessons from Sierra Leone. Political engagement played a central role in constructing a pragmatic partnership between the competing institutions, and in accounting for some of the long‐term and unintended consequences of transitional justice. We argue that if a complementarity of means is to be effectively realized global policy makers need to embrace – rather than deny – the politics of holistic justice.