Transitional Justice Mechanisms Research Articles

Transitional Justice in Ongoing Conflicts and Post-War Reconstruction: Reintegrating Donbas into Ukraine

The main aim of the paper is to analyse the potential transitional justice mechanisms, directed at reintegration of Donbas, a territory temporarily occupied by pro-Russian separatists, being under the combination of a direct and indirect control of Kremlin, with Ukraine. In the aftermath of the Revolution of Dignity and a remove of ex-President Viktor Yanukovych as a consequence of Euromaidan protests held in Kyiv, in the Winter 2013/14, Ukraine became a state involved in the international armed conflict covering its Eastern provinces as a result of an external aggression of the Russian Federation. Furthermore, since early-2014, Moscow is continuously using pro-Russian militants to form and uphold unrecognised, de facto regimes of the so-called ‘Donetsk’ and ‘Luhansk People’s Republic(s)’ affecting the territorial integrity of the Ukrainian state. It is argued that Kyiv shall take into consideration some of the peace and restoration models applied in similar conflict or post-conflict environments, such as the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES) or the experience of numerous disarmament, demobilisation and reintegration (DDR) programs, filled with the transitional justice component. Moreover, by emphasising the context of a military (semifrozen) conflict in Eastern Ukraine, the paper is going to shed more light on the possible application of transitional justice tool-kit in the ongoing conflicts scenarios and its potential contribution to the shift from a conflict to the postwar environment.

Avoiding amnesty in the age of accountability: Colombia’s proposal for alternative sentencing

<p>One of the more conspicuous symptoms of the anti-impunity movement in transitional justice is a growing objection towards the use of amnesty. While international standards are slowly but surely building a legal barricade to prevent amnesty and impunity, states are searching for alternative measures capable of persuading hostile actors to demobilize. One promising solution to this is Colombia’s proposal for prosecutions accompanied by alternative sentencing under the <em>Marco Jurídico de la Paz</em>, which aims to demobilize the guerillas and end a 50-year conflict. But for this proposal to be a genuine alternative to amnesty rather than a political attempt to avoid international legal obligations, it must satisfy victims’ requirements for truth, justice and reparations. This paper examines the potential use of alternative sentencing as a mechanism of transitional justice within the scope of the “age of accountability”.</p><p><strong>Received</strong>: 31 March 2015<br /><strong>Accepted</strong>: 15 October 2015<br /><strong>Published online</strong>: 11 December 2017</p>

Relaciones internacionales y justicia transicional: memoria, jurisdicción universal y el caso Ruanda/RD Congo

<p>In the twentieth anniversary of the Srebrenica and Kibeho massacres, both executed under the presence of UN blue helmets, its timely to approach judicial and non-judicial mechanisms of transitional justice been used to face human right abuses of the past. Human tragedies of Rwanda and the democratic Republic of Congo are still devastating despite of developed initiatives about truth, justice and reparation. dialogue processes and universal jurisdiction initiatives inspired by international civil society depict a window of hope. National and international impacts of the Rwanda-DR Congo case judicial process, as the effects of the cancellation of universal jurisdiction in Spain, after ten years of open judicial inquiry, are presented to invite to a critical reflection.</p><p><strong>Received</strong>: 25 July 2015<br /><strong>Accepted</strong>: 30 November 2015<br /><strong>Published online</strong>: 11 December 2017</p>

How Conditional Amnesties Can Assist Transitional Societies in Delivering on the Right to the Truth

This article explores how conditional amnesties can assist post-conflict societies to recover truth. It examines how such amnesties can be used optimally to achieve the best results as part of transitional justice mechanisms. Thus, a central question is to see how amnesties can be used for truth recovery purposes. For that reason, the status and role of amnesties, and whether such amnesties can be used to learn more about the past and assist in truth recovery is explored. The article explores what amnesties are, how prevalent they are and how amnesties can be used optimally to achieve the best results. An issue that is also explored is whether amnesties are needed for perpetrators to participate in transitional justice mechanisms. The argument that is made, in this regard, is that amnesty is absolutely necessary to persuade perpetrators to testify. If they do not have such legal protection, perpetrators fear the legal consequences that may result if they admit to crimes for which they have not been charged. Another question that is examined concerns whether amnesties, and specifically conditional amnesties, pass international law muster. This article therefore investigates the continual and extensive use of amnesty to determine whether a conditional amnesty violates international law. The article suggests how a conditional amnesty process could be structured and what difficulties such a process should avoid if perpetrators are to enter such a process.

An initial scoping of transitional justice for global climate governance

ABSTRACTGeopolitical changes combined with the increasing urgency of ambitious climate action have re-opened debates about justice and international climate policy. Tensions about historical responsibility have been particularly difficult and could intensify with increased climate impacts and as developing countries face mounting pressure to take mitigation action. Climate change is not the only time humans have faced historically rooted, collective action challenges involving justice disputes. Practices and tools from transitional justice have been used in over 30 countries across a range of conflicts at the interface of historical responsibility and imperatives for collective futures. Central to this body of theory and experience is the need to reflect both backwards- and forwards-oriented elements in efforts to build social solidarity. Lessons from transitional justice theory and practice have not been systematically explored in the climate context. This article conceptually examines the potential of transitional justice practices to inform global climate governance by looking at the structural similarities and differences between the global climate regime and traditional transitional justice contexts. It then identifies a suite of common transitional justice practices and assesses their potential applicability in the climate context.POLICY RELEVANCEJustice disputes, including about historical responsibility and future climate actions, are long-standing in the climate context and could intensify with increased climate impacts and broadened mitigation pressures.Lessons from efforts to use transitional justice mechanisms could provide insight into strategies for balancing recognition of harms rooted in the past, while creating stronger future-oriented collective action.Several areas of transitional justice practice including: the combination of amnesties and litigation, truth commissions, reparations and institutional change could provide useful insights for the climate context.

The Emotional Underpinnings of Attitudes toward Transitional Justice

What explains citizens’ attitudes toward transitional justice? Studies that examined the support for transitional justice mechanisms identified three sets of factors: individual, socialization, and contextual. Building on the hot cognition theory, this article argues that the past political regime is an emotionally charged sociopolitical object encoded with its evaluative history with consequences in people’s opinion-formation process. Drawing on a specialized survey in Spain, the results first suggest that negative emotions, especially anger and fear, significantly influence the support for stronger transitional justice measures, even after adjusting for relevant confounders such as ideology, religiosity, or victimization. Second, the findings show that those who lack an emotional engagement toward the past regime, the so-called bystanders, hold attitudes toward transitional justice that are indistinguishable from those who report positive feelings (pride, patriotism, and nostalgia) toward the past regime. The effects of emotions are sizable relative to other important determinants, including ideology, religiosity, and family’s ideology.

Transitional justice as social control: political transitions, human rights norms and the reclassification of the past.

This article offers an interpretation of transitional justice policies - the efforts of post-conflict and post-dictatorship societies to address the legacy of past abuses - as a form of social control. While transitional justice is commonly conceptualized as responding to a core problem of impunity, this article argues that such formulation is too narrow and leads to lack of coherence in the analysis of the diverse array of transitional mechanisms, which include among others trials, truth commissions, reparations for victims and apologies. Building on the work of Stanley Cohen, the article contends that the core transitional problem is the denial of human rights violations, and consequently that the common purpose of all transitional justice mechanisms is to reclassify the past: redefining as deviant some acts and individuals which prior to the transition were considered 'normal'. The article identifies and analyses three themes in the application of a social control framework to transitional justice: (1) truth, memory and retroactive social control, pertains to the way truth-seeking transitional justice mechanisms reclassify past events by engaging in social control of and through memory; (2) censure, celebration and transitional social control refers to the reclassification of categories of individuals through expressions of both social disapproval and praise; and (3) civil society and social control from below concerns the role of social movements, organizations and groups as informal agents of social control during transitions. The concluding section recaps and briefly explores the concept of 'good moral panic' in the context of political transitions. While the concept of social control tends to have negative connotations for critical sociologists, this work suggests that efforts to categorize, punish and disapprove certain behaviours as deviant may not only be viewed as supporting a conservative status-quo, but also as promoting fledging human rights norms.

When there is no justice: gendered violence and harm in post-conflict Sri Lanka

ABSTRACTReparative measures for conflict-related sexual and gender-based violence (SGBV) attend to the practical needs of victims while also addressing the long-term structural conditions that led to the violence and often endure after conflict. Over the last decade, transitional justice has sought to address high levels of impunity for SGBV, while also addressing the long-term structural conditions causing and exacerbating it. In this article we study the case of Sri Lanka, where crimes have been committed during and after the civil war (1983–2009) but a transitional justice mechanism to redress them is unlikely to be established. The article considers whether in such a situation of impunity gender-sensitive approaches to SGBV prevention can still be promoted to ensure its non-recurrence. We closely examine post-conflict Sri Lanka and women’s ongoing experiences of multiple forms of insecurity and violence to highlight the relationship between enduring structural gender inequalities and reparative justice. Bridging human rights and political economy approaches, we argue that addressing gender inequalities in access to resources and public space is essential to prevent further gender-based violence and structural harms in conflict-affected countries like Sri Lanka.

Evaluating the Evaluators: Transitional Justice and the Contest of Values

Despite an increase in scholarly efforts to evaluate transitional justice (TJ) programmes, there is little agreement over what TJ is, what effects it could be expected to have or how TJ mechanisms should be judged. This article contributes to the literature on TJ evaluation by showing how differences in understanding of the nature and value of the ‘justice’ in TJ affect what is evaluated and how findings are interpreted. The article parses the values inherent in TJ evaluations (retributive, restorative and transformative justice, valuable for intrinsic or instrumental reasons) in order to think through the ways in which different value orientations lead to different appraisals. A broad sample of literature on the TJ programme in Sierra Leone is analyzed according to the value orientations it tends towards. The analysis finds that evaluations of Sierra Leonean TJ can be found displaying each of the six value orientations, with no agreement about the success of the TJ programme from within orientations, let alone across them. Additionally, it is argued that scholars and researchers are rarely explicit about their orientations, and there is insufficient consideration of the political implications of different value positions for prescriptions for future TJ programmes.

“There's No Thing as a Whole Story”: Storytelling and the Healing of Sexual Violence Survivors among Women and Girls in Acoliland, Northern Uganda

AbstractStorytelling has become an important and acceptable tool among academics and professional peace‐builders. Storytelling can be therapeutic, especially since it assists survivors and the society in transition to come to terms with a traumatic past. It has been included as a part of transitional justice mechanisms which have assisted in the area of truth‐finding and accountability. It has been useful for peace‐building in communities that are deeply rooted in conflict and, therefore, has been encouraged within the last decade in a number of countries around the world. Consequently, this paper is a critical exploration of the discursive links between sexual violence and storytelling in war and peace. The focus is on Acoli women and girls in Acoliland, northern Uganda, who have primarily been impacted by the Lord's Resistance Army (LRA) group of Joseph Kony. Their stories of trauma, resilience, and courage in the face of terror have not been properly acknowledged. Using women and girls of the Acoli community in northern Uganda as an example, this paper aims to begin a discussion on the role of storytelling in the healing of sexual violence survivors. Informed by the storytelling discourse, the paper argues that constructive storytelling exercises can provide an avenue for survivors of sexual violence to acknowledge trauma, attain healing, build resilience, and counter the violent narrative of the group. However, this study also finds that storytelling as a peace‐building tool falls short of transforming gender relations. Finally, the paper proposes and designs a storytelling program.

‘To shape our own lives and our own world’: exploring women’s hearings as reparative mechanisms for victims of sexual violence post-conflict

ABSTRACTTransitional justice processes have been criticised for neglecting to recognise the specific dimensions of women’s experiences of sexual violence during conflict. This failure to acknowledge the gendered elements of a conflict or the denial of its enduring impact undermines the prospect of transitional justice mechanisms devising measures of reparation that address the conditions that first enabled and subsequently perpetuate sexual violence against women.Women’s hearings have been one institutional response to criticisms that transitional justice mechanisms have failed women victims of sexual violence in conflict, both at the point of investigation and accountability and in the development of reparations. This article examines the role of women’s hearings in post-conflict contexts and institutional settings, and the factors that have led to their creation. By reference to women’s hearings held in South Africa, Peru, Sierra Leone, Timor-Leste, Japan, Bosnia–Herzegovina and Guatemala, the article evaluates women’s hearings as responses to the treatment of sexual violence by transitional justice mechanisms, and as potential measures of reparation.

Families of the missing in Sri Lanka: Psychosocial considerations in transitional justice mechanisms

AbstractIn the last thirty years, tens of thousands of Sri Lankans have experienced enforced disappearances of family members. In 2016, many members of such families came before the Consultation Task Force on Reconciliation Mechanisms, which was mandated to gather views on how people thought the transitional justice mechanisms should be designed, how they should be established and how they should function. This process allowed the families to share their experiences and to outline what they saw as important in shaping the transitional justice mechanisms. This article surveys the complex nature of their distress and psychosocial needs, as expressed by them during the consultations. It proposes that transitional justice mechanisms should be designed to protect their psychosocial well-being, address their complex psychosocial needs, and provide them with support and protection before, during and after their engagement in the mechanisms.

The Quantitative Turn in Transitional Justice Research: What Have We Learned About Impact?

In recent years, scholars have increasingly turned to quantitative research methods to understand the impact of transitional justice (TJ) on societies emerging from periods of violence and repression. This research often seeks to influence policy diffusion by making bold claims based upon large datasets of TJ events that span space and time. However, the policy advice from the first wave of quantitative research is inconsistent if not contradictory. In this article, we outline a range of methodological issues that help to explain the different conclusions reached by these studies, including sampling strategies, model construction, and the measurement of key variables. Furthermore, these studies have often failed to provide compelling theoretical or empirical bases for a causal relationship between TJ mechanisms and dependent variables such as democracy and human rights. We suggest several ways in which quantitative scholars could produce findings with broader credibility. Although we support the use of quantitative methods to understand the impact of TJ mechanisms, greater methodological care is needed in supporting policy recommendations.

La memoria social: una herramienta de la justicia transicional en Chile y Corea del Sur

El artículo explora los conceptos de memoria social, cultural y colectiva y examina cómo las políticas de la memoria implementadas en la justicia transicional y las narrativas de la memoria social, fruto de las comisiones de la verdad, llevan a la deslegitimación de regímenes autoritarios y al empoderamiento y participación cívica de grupos marginados en los casos de Corea del Sur y de Chile. En Corea del Sur, la memoria de la víctima-héroeha servido para deslegitimar el régimen antidemocrático anterior, pero no ha logrado superar la polarización política existente. Mientras que, en Chile, la memoria de los abusos en contra de los derechos humanos ha deslegitimado la dictadura y ha fundamentado la acción de un movimiento político de izquierda, pero no ha logrado conectar de manera exitosa las violaciones de los derechos humanos del pasado con las actuales. El artículo se basa en los resultados del proyecto interdisciplinar “El impacto de los mecanismos de justiciatransicional en la construcción de instituciones democráticas”. Se utiliza una metodología cualitativa de comparación internacional de estudios de caso, a través del análisis secundario de datos, entrevistas y visitas de campo. Teniendo en cuenta los mecanismossociales y culturales que participan en la construcción de la memoria social, se concluye que el recuerdo de eventos atroces como práctica social se da casi de manera espontánea, pero su incorporación en políticas oficiales de justicia transicional requiere esfuerzos concertados y de la participación de grupos portadores de memoria (carrier groups) en la esfera pública. Por lo tanto, es necesario entender cómo se dan estos procesos de construcción de memoria social y en qué medida contribuyen a la transformación social necesaria para el fortalecimiento de la democracia en sociedades transicionales. Además, el artículo hace algunas recomendaciones que pueden tomarse para el caso colombiano.

Injustice through Transitional Justice? Subversion Strategies in Burundi’s Peace Process and Postconflict Developments

Embedded in Burundi’s peace process, the creation of judicial and nonjudicial transitional justice (TJ) mechanisms promised truth, reconciliation and justice to the victims of crimes committed during conflict. Yet, an analysis of the dynamics of the localization of TJ reveals multiple subversion techniques mobilized by national and international actors, leading to counterproductive outcomes. This article explores these dynamics and formulates two arguments. First, these subversion techniques are the consequence of a double phenomenon. On the one hand, the conjunction of the normalization of TJ in the postconflict toolbox and the nature of the internationalization of Burundi’s peace process has made the pursuit of TJ inevitable. On the other, the incompatibilities between TJ and divergent priorities, interests and agendas have made its realization equally impossible. Secondly, this subversion has led to a triple form of (transitional) injustice: a denial of justice through ‘temporary immunities’; an absence of justice through a negotiation process more oriented towards noninception than the creation of TJ mechanisms; and a risk of biased justice through the modalities and timing of the National Truth and Reconciliation Commission. Conclusions of this article call for a greater questioning of the TJ model promoted and deeper research into the localization dynamics, especially in post peace-settlement contexts.

Justice-sensitive education: the implications of transitional justice mechanisms for teaching and learning

ABSTRACTThis article introduces the notion of ‘justice-sensitive education’ – derived from the ideals and practices of transitional justice (TJ) in countries emerging from conflict. It describes three mechanisms for this: structural reforms (relating to inequity and division); curriculum change (the treatment of history, human rights and citizenship) and institutional culture (critical thinking and democratic, participatory pedagogy). A case study of Sri Lanka provides fresh illustrations of actual or potential work in these three areas. There appear five challenges to a justice-sensitive education: the wider context of schooling; willingness of educators to confront the past; barriers to introducing the critical thinking required for new norms and values to take root; programming and planning; and difficulties in measuring the impact of TJ measures in education. Yet however imperfect, TJ mechanisms indicate a society that wants to learn from past mistakes and show that some form of justice is possible in the future.

Trials, lustration, and clean elections: the uneven effects of transitional justice mechanisms on electoral manipulation

ABSTRACTTransitional justice aims to promote democratization, but previous research has found that it has mixed effects. We address this puzzle by focussing on how transitional justice affects a necessary condition for democracy: clean elections. We test for the effects of four transitional justice mechanisms – truth commissions, lustration policies, amnesties, and trials – on two different types of electoral manipulation, using data from 187 post-transition elections held in 63 countries around the world from 1980 to 2004. We find that post-transition trials limit illegal forms of electoral manipulation, such as vote-buying and falsification of results, but have no effect on legal forms of manipulation. By contrast, lustration policies limit legal manipulation tactics, like intimidation and harassment of opponents by the security services, but do not affect illegal tactics. By showing that different aspects of transitional justice can have varying influence on electoral integrity, this project improves understanding of the mechanisms that link transitional justice and democratization.

POLÍTICAS PÚBLICAS DE RECONCILIACIÓN. UN RETO POSIBLE EN LA CONSTRUCCIÓN Y LA SOSTENIBILIDAD DE LA PAZ EN COLOMBIA

Este artículo pretende generar un análisis sobre la necesidad de abordar la reconciliación, como un proceso integral, sistémico y progresivo que permita dar sostenibilidad a la construcción de la paz luego de la firma del Acuerdo entre el gobierno colombiano y las FARC – EP. Para ello, bajo el marco de los Estudios de Paz, se plantea como la reconciliación en los escenarios de transición a la paz, no es un concepto abstracto, ni es exclusivo de las víctimas y los victimarios, sino que debe ser un proceso progresivo, de largo plazo, que implica a la sociedad en su conjunto y que se debe expresar a través de políticas públicas. Desde este enfoque, la reconciliación se convierte en el eje que atraviesa la implementación de los mecanismos de justicia transicional, la reconstrucción del tejido social y la consolidación de la democracia participativa.

Managing Expectations: How Have Tensions between the International Community and National Government Impacted the Implementation of Transitional Justice in South Sudan?

Local ownership and participation of the local population is increasingly the formula suggested for transitional justice. However, this paper only explores the tensions that arise between the expectations of national governments and the international community, the parties most responsible for the implementation of transitional justice mechanisms. Using the Resolution of the conflict in South Sudan as a reference point, the paper looks at where and how the expectations arise, the impact these tensions have on the implementation of mechanisms, and strategies for lessening the tensions. The conclusion suggests that transitional justice will be better achieved through mechanisms that take into consideration the expectations of what is to be achieved and where more effort has been put into the negotiation and aligning the expectations of the national and international organisations involved in the implementation.

Are Truth Commissions Just Hot-Air Balloons? A Reality Check on the Impact of Truth Commission Recommendations

Las comisiones de la verdad (CDV), ampliamente reconocidas como herramientas clave de los mecanismos de justicia transicional (MJT), tienen el objetivo de lograr verdad, justicia y reconciliación después de dictaduras o conflictos violentos. Sin embargo, los actores políticos que promueven estos mecanismos no han, a menudo, ejercido una adecuada reflexión crítica sobre las medidas políticas sugeridas. Por el contrario, suelen argumentar desde puntos de vistas normativos, desestimando pruebas empíricas reales. Durante la última década, se ha debatido si los MJT funcionan realmente y qué impacto tienen. Partiendo de tres casos específicos (Kenia, Sierra Leona y Timor Oriental), este trabajo analiza la (no) aplicación de las recomendaciones resultantes de informes finales de CDV creadas después de conflictos armados. El trabajo se centra en el impacto de las comisiones de la verdad con respecto a la democracia, paz y reforma institucional, para averiguar qué impacto real tienen las CDV. El análisis sigue de cerca el enfoque cuadripartito de Skaar, Maica y Eide (2015) para medir el impacto de las CDV y muestra sus posibilidades y limitaciones.