Transitional Justice Framework Research Articles

Eliminate Structural Injustices or Perpetuate Them: Indigenous Peoples and Transitional Justice in the Criminal Court System of Taiwan

ABSTRACT∞ In 2017, Taiwan’s government proposed reforms to the Indigenous Specialized Criminal Court (ISC) within its criminal court system (court system). Situated within the contemporary theoretical framework of transitional justice, this article explores the theoretical significance of these reforms and examines their actual state of implementation. Firstly, the article points out that the court system has led to structural injustices like the erasure of culture and socio-economic disadvantages for indigenous peoples, highlighting the limitations of the conventional transitional justice model in addressing these injustices. As a response, the ISC reform adopts strategies that differ from the conventional model. The article then attempts to develop an enhanced transitional justice model that includes structural injustices within its scope and explains the ISC reform initiatives and their inherent transitional justice significance. Finally, by evaluating the implementation status of the ISC reform, the article elucidates its theoretical implications and the feedback it offers to contemporary theoretical debates.

Rule of Law Backsliding and Memory Politics in Hungary

Introduction of the institutional framework of constitutional democracy and transitional justice in Hungary – Liberal constitutionalism as a victim of the authoritarian efforts of Viktor Orbán’s Fidesz party after the 2010 parliamentary elections – The legal governance of history contributing to the backsliding of democracy and the rule of law – Use of memory politics for the newly established authoritarian regime’s own political purposes – Transitional justice measures to help reconcile society and consolidate democracy – The current Hungarian government’s attitude towards public discussion of history

Reparatory Justice for the 1971- Bangladesh Genocide

The 1971 conflict in Pakistan caused tremendous damage to both people and property. As a result, Pakistan has a responsibility to reimburse Bangladesh. In some cases, several countries may pay for damages without admitting guilt, making the concept of reparatory justice difficult to establish. Reparation must be carried out in accordance with the victim nation's demands. The prosecution of war criminals after World War II brought attention to humanitarian law and customary international law, which recognizes the global repercussions of genocide. Reparations are actions done by the state to address ongoing transgressions of "Human Rights Law" and "Humanitarian Law" through monetary compensation and restitution. They are used in the framework of transitional justice. Victims of transgressions of international or humanitarian law may pursue restitution. Pakistan must still pay compensation even though it was responsible for the slaughter in Bangladesh in 1971. The tragedy of 1971 and the crimes against humanity it entailed were recognized as genocide by the international community. In order to mend relations, Pakistan should apologise to Bangladesh and find a peaceful settlement.

Transitional Justice as a tool for polarization in Albania

Abstract The discourse on transitional justice and coming to terms with the past following 32 years of regime change in post-communist Albania continues to cause further polarization within society. The timeline of nearly thirty years has been fueled by extreme debates and harsh statements which have resulted in the division of society in two camps of public judgment-the communists and the anti-communists. The number of studies conducted on the impact of transitional justice on democratic backsliding is quite limited, and similarly, there is a paucity of research on the correlation between transitional justice and polarization within the country. Albania’s transitional justice dynamic can be better understood by contextualizing it in terms of regime change and consolidation, which would bring significant insights. The primary objective of this paper is to concentrate on the theoretical and conceptual framework of transitional justice, and to discuss its primary differences in how it deals with the past. In the second part of the paper, a detailed analysis of the discourse of the elite will be presented, aimed at addressing the fundamental question posed in this paper, which is “to what extent has the political domain utilized TJ to polarize society”?

Contested Actors around the Initiation of a Non-Judicial Settlement Mechanism for Past Gross Human Rights Violations: A Socio-Legal Study of the PPHAM Team

The PPHAM Team (Non-Judicial Resolution of Past Gross Human Rights Violations) was initiated by the Jokowi-Ma'ruf administration as an alternative settlement mechanism for Past Gross Violations of Human Rights through the issuance of Presidential Decree Number 17/2022 (Keppres 17/2022). From this context, the establishment of the policy was criticized and rejected by civil society organizations (CSOs) and the Victims. This was because the PPHAM Team was deemed a measure of State responsibility “hand-washing” and an indication of impunity preservation. Therefore, this study aimed to evaluate the contestation of actor interests among the State, Victims, CSOs, and others, by emphasizing the theoretical framework of transitional justice. This was a socio-legal study coupled with a qualitative approach, where data were obtained through interviews and observation of mass media coverage. The results argued that the initiation of the PPHAM Team was only beneficial to the interests of the State and did not completely address the preferences of the Victims on accountability and truth.

Peace through Justice, Truth, Reparation and Non-Repetition: Normative and Judicial Developments of the Special Legal Framework of Transitional Justice in Colombia

Abstract The paper addresses the fundamental aspects of transitional justice in Colombia, within the legal framework developed to obtain peace and considering the broad case law of the Colombian Constitutional Court on the matter. To this end, after laying down some foundations concerning the scope of the constitutional principle of “peace” in the Colombian legal order and the concepts of justice, truth, reparation and guarantee of non-repetition, the study focuses on the legislative and judicial developments that have characterized the process, starting from its very beginning up until the report of the Commission for the Clarification of the Truth in 2022.

Transitional Justice beyond the Human

Abstract Indigenous and Afro-Colombian peoples often describe the harm caused by armed conflict in terms of damage inflicted on their traditional territories. To these peoples, the concept of territory makes reference not only to their lands but to a set of emplaced practices and relationships through which they share life with wider assemblages of human and other-than-human beings. It is the threat faced by these large communities of life that was invoked by Indigenous organizations when they succeeded in including the territory as a victim in the transitional justice framework recently implemented by the Colombian state. This article argues that the consideration of the territory as a victim means more than the full enjoyment of the land ownership rights Indigenous and Afro-Colombian peoples are entitled to. Instead, said consideration challenges some received notions regarding justice and reparation, particularly because war becomes an experience that extends beyond human losses and environmental degradation. The terms and practices mobilized by Indigenous and Afro-Colombian peoples compel us to examine the limits that concepts such as human rights, reparation, or even damage have in the understanding of war and its aftermath.

The Transitional Justice Framework Agreed between the Colombian Government and the FARC-EP

The Transitional Justice Framework Agreed between the Colombian Government and the FARC-EP

Alfabetización informacional en los archivos de derechos humanos del Uruguay: una discusión sobre su relevancia

A reflection on the relevance of conducting information literacy studies and its justification is presented from the archives and documentation centers related to the information regarding human rights violations in periods of state terrorism and the last civic-military dictatorship in Uruguay. This discussion becomes important in consideration of the relevance of the information they protect and the specific characteristics of their users when accessing and consulting binding documentation on this topic. It starts from a brief contextualization of the period of illegitimate action of the Uruguayan state and then moves on to regulatory actions for the restoration of democracy and within a transitional justice framework. Consequently, the dimension of the so-called human rights archives in Uruguay is addressed and academic studies of information literacy are reviewed. The need to apply informative human behavior studies for the identification of categories of users in archival information services is recognized. Lastly, the importance of developing informative competences in this type of information services is raised, in support of the search for truth and justice, as well as reparation actions.

Challenges and Possibilities of Memory and Reconciliation: Empirical Evidence for Colombia

The signing of the peace agreement with the Revolutionary Armed Forces of Colombia-People’s Army (FARC-EP) deepened the debate on the reconstruction of memory as a right of the victims and a way to advance in the reconciliation of Colombian society. This article uses data from the 2019 Colombian Reconciliation Barometer of the Program of Alliances for Reconciliation of the United States Agency for International Development and ACDI/VOCA to analyze the individual and contextual factors that affect how individuals perceive the reconstruction of memory as a tool that contributes to reconciliation. We estimated a probabilistic model for which the dependent variable is the predisposition toward memory reconstruction as a predictor of reconciliation based on the context of the Colombian armed conflict, and a set of individual factors that capture the effects of community initiatives and state institutions and programs arising within the framework of transitional justice. We sought to verify whether the characteristics of individuals and their way of relating to each other in a community and municipal context shape the perception of the contribution of reconstructed memory to reconciliation. The results show that being a female victim of the armed conflict, developing empathy, residing in municipalities with the presence of Places of Memory, and trusting in the processes of transitional justice —such as clarifying the truth— increase an individual’s predisposition to consider that the reconstruction of memory contributes to reconciliation. In contrast, other policies and programs that emerged after the agreement, such as residing in municipalities with Territorially Focused Development Plans (PDET in Spanish) and the presence of Casas de Verdad (Truth Houses), operate in the opposite direction. This work suggests challenges for transitional justice by identifying the factors that condition positive outlooks toward the reconstruction of memory in reconciliation processes and opens the possibility of formulating actions with greater citizen acceptance.

Recognition as Transitional Justice ‘From Below’: Analysing Victims’ Grassroots Activism in Postconflict Colombia

ABSTRACT The framework of transitional justice ‘from below’ is often used to explore perspectives where victims are addressed as subjects with their own agency and organizational capability in temporal and normative aspects. Using qualitative research techniques to analyse victims’ organizations in Colombia, this article establishes the notion of recognition as crucial to comprehending ‘from below’ perspectives of transitional justice. It explores the cases of the Never Again Museum and the Trails for Life and Reconciliation in Eastern Antioquia. It examines victims’ efforts to create processes of ‘democratization of pain’ (the transformation of personal experiences of loss into common public knowledge) as expressions of recognition. The article’s main contribution rests in the idea that by scrutinizing victims’ initiatives as expressions of recognition, the normative idea of transitional justice ‘from below’ can be reinvigorated. It demonstrates that the concept of transitional justice ‘from below’ constitutes an abstract ideal that needs to be redefined by bringing into consideration the function and particularities of victims’ grassroots activism.

The stories bones tell. Collaboration between forensic teams and victims’ relatives in the interpretation and ritual accompaniment of human remains in Guatemala*

This article focuses on the collaborative practices between forensic experts and victims’ relatives through the exhumation process in Guatemala. In a context where there is still no real recognition of the victims by the state, and no national common narrative about the violence of the armed conflict, exhumations have been developed in the framework of transitional justice, as a tool for victim recognition as well as historical clarification. In a post-political violence context, the exhumation process produces knowledge and narratives about the past, through the scientific analysis of human remains as material evidence, the collection of testimony, and shared stories. Based on extensive ethnographic work conducted with civil society actors involved in exhumations, this article focuses on the dynamics of production and coexistence of scientific and subjective forms of interpretation of the remains, as well as scientific and ceremonial practices of treatment of the remains. We will question how different regimes of truth coexist around the interpretation of the bones, and how forensics scientists and victims’ relatives collaborate to produce them.

“Justice Futures”: Forensic Investigation and the Potential for Transformation in Eritrea

This article addresses the role of the dead and disappeared and the potential for forensic investigation of atrocities in the context of an evolving transitional justice debate and framework for Eritrea. As one possible component of transitional justice, forensic investigation represents an especially potent modality to document the physical evidence of atrocities, help establish truth and accountability, and catalyse deeper conversations about justice, reconciliation, repair, access to resources, and socio-political transformation. This discussion is especially relevant as human rights proponents continue to debate the implications of findings by the Human Rights Council that Eritrean authorities have committed or enabled crimes against humanity and whether these should culminate in a referral to the International Criminal Court.

A Curator in the House of Memory: Restoration, Implication and the Post-Conflict Novel in Aminatta Forna’s The Hired Man

ABSTRACT Aminatta Forna’s novel The Hired Man, on post-war Croatia, attests to the author's continued interest in transitional, post-conflict societies where mass atrocity and human rights violations such as forced disappearance and ethnic cleansing have taken place. Drawing on the conceptual framework of transitional justice and memory studies, this paper argues that the novel deepens and extends the concerns of post-conflict fiction in two main ways. Firstly, it explores the role of ordinary individuals as agents of restorative justice in small communities. The actual restoration of the house at the centre of the narrative transforms the building into a permanent site of memory that challenges collective amnesia and functions as a monument to coexistence on which to model future social relations. Secondly, the narrative provides an apt illustration of Rothberg’s notion of implication, foregrounding a model of indirect responsibility for historical injustice that problematises the figure of the naïve outsider through the foreign characters in the story. The narrative will work to engage these characters in collective restorative actions in the country’s troubled progress towards a fairer and more sustainable peace. The use of situational irony to enhance the theme of the indestructibility of the past will also be addressed.

Alfabetización informacional en los archivos de derechos humanos del Uruguay: una discusión sobre su relevancia

A reflection on the relevance of conducting information literacy studies and its justification is presented from the archives and documentation centers related to the information regarding human rights violations in periods of state terrorism and the last civic-military dictatorship in Uruguay. This discussion becomes important in consideration of the relevance of the information they protect and the specific characteristics of their users when accessing and consulting binding documentation on this topic. It starts from a brief contextualization of the period of illegitimate action of the Uruguayan state and then moves on to regulatory actions for the restoration of democracy and within a transitional justice framework. Consequently, the dimension of the so-called human rights archives in Uruguay is addressed and academic studies of information literacy are reviewed. The need to apply informative human behavior studies for the identification of categories of users in archival information services is recognized. Lastly, the importance of developing informative competences in this type of information services is raised, in support of the search for truth and justice, as well as reparation actions.

Developing Transitional Justice for Youth: An Assessment of Youth Reintegration Programmes in Colombia

ABSTRACT∞ Young people, or ‘youth’ are one of the key groups affected by armed conflict as well as in the process of transitioning from it. This article explores what a youth-inclusive process of transitional justice may entail. It looks at the reintegration of youth, who were previously associated with armed groups, into civilian lives through Disarmament, Demobilisation and Reintegration (DDR) programmes and broader community-based initiatives with a prevention focus that lie outside a traditional transitional justice framework. The article scopes the study to the context in Colombia. A selection of programmes is assessed alongside international standards on youth reintegration, particularly the UN Integrated DDR Standards on Youth and complemented with empirical evidence that attests the ways in which youth experience these interventions. In doing so, the article analyzes potential ‘blueprints’ for the programmatic response to youth reintegration and contribute to an under-researched area that links youth, transitional justice and guarantees of non-recurrence.

Foreign concerns: the impact of international investment law on the ethnic-based land restitution programme in Colombia

ABSTRACT The Colombian state has incorporated various mechanisms within its transitional justice framework for the protection of victims of the internal armed conflict. For ethnic groups who are victims of land dispossession and forced displacement, the State has established a special judicial procedure allowing them to request the legal and material restitution of their lands and territories. This article explores restitution cases in which there were competing interests in the land by mining companies and how the institutions in charge of implementing the restitution programme have shown an increasing awareness of these companies’ interests by avoiding legal remedies that could be too burdensome. We focus on a case that provides evidence that this awareness has been influenced by the existence of international investment agreements that protect foreign investors and that might result in future international arbitration claims against the state.

The Anti-Chosun Movement: Journalism, Activism, Politics, and Historical Memory in Post-Authoritarian South Korea, 1998–2002

This article reconstructs the origins and development of the so-called Anti-Chosun Movement, a (progressive) movement to curb the power and shed light on the history of (conservative) mass media, from its origins in the mid-1990s to its politicization in the 2002 presidential elections. The development of Anti-Chosun reveals the intertwinement of journalism, activism, and politics in post-authoritarian South Korea. Further, Anti Chosun constitutes the first movement originating in cyberspace, demonstrating the centrality of online journalism. Finally, Anti-Chosun must be evaluated as an omen of Korea’s “history wars,” its discourse taking place firmly within a framework of historical fact-finding and transitional justice.

Anticorruption and Transitional Justice: A Distinction Without a Difference

Abstract Anticorruption efforts in the framework of transitional justice seemingly insert the missing ‘economic’ link and are thus considered to modify its mainstream paradigm and diversify its politics. This article counter argues that, instead, anticorruption efforts reinforce the problematic points and invisibilities of transitional justice and further embed a liberal conceptualization of it. Using the case study of Tunisia, the article contends that anticorruption efforts stepped onto the footprints of the paradigmatic transitional toolbox by decontextualizing and depoliticizing their object of intervention, effectively foreclosing any meaningful engagement with the past, and validating liberal economic agendas in the process.

GENDER-RESPONSIVE GOVERNMENT TRANSITIONAL JUSTICE POLICIES – A PATH TO SUSTAINABLE PEACE AND POST‑CONFLICT RECONSTRUCTION

The article is devoted to the legal basis and direction of the Government of Ukraine in the development of gender-responsive state policy of the transition period. The international principles and commitments of Ukraine in the framework of transitional justice, taking into account the gender aspect, are revealed, as well as the international and national commitments of Ukraine in the framework of involving women in peacebuilding and participation. The article presents international experience of taking into account international standards and norms in order to protect women’s rights and build peace. Global evidence indicates that women’s meaningful participation in peace negotiations increases the duration of peace. Peace agreements with female signatories are more durable and have a significantly higher number of provisions aimed at political reform and higher implementation rates. The recent study investigating 352 peace agreements in 64 countries between 1990 and 2019 also found that there was a significant increase in the share of peace agreements with gender provisions, from below 10% in the 1990s to 45% in 2013. Yet, this practice appears to have been halted. In 2019, the share of agreements with gender provisions was only at 29%. Despite an increasing evidence about the important role of women, their expertise and meaningful participation in preventing and addressing conflict and sustaining peace, women are still under- represented in the peace processes. Between 1992 and 2019, women constituted, on average, only 13% of negotiators, 6% of mediators, and 6% of signatories in major peace processes worldwide. Present peacebuilding experiences also indicate that peace is likely to be lasting only if the security needs of the population are addressed in parallel with the political and socioeconomic aspects of conflict resolution and post-conflict recovery. Women’s exposure to conflict may result in their new roles and responsibilities and may open new opportunities for their greater involvement in public life, including peace and security decision-making. Likewise, gender equality positively influences the cohesion and effectiveness of the security sector in increasingly multidimensional peace processes.