Goals Of Transitional Justice Research Articles

Australian Reconciliation and the Enduring Invisibility of Whiteness

ABSTRACT ∞Reconciliation has emerged as one of the key goals of transitional justice and a favoured policy approach to address the racism, inequality and historical injustices experienced by Indigenous peoples in settler-colonial states. This article focuses on Australian reconciliation and argues that it has failed to critically engage with whiteness, limiting the potential of reconciliation to address the root causes of these issues. Drawing on critical whiteness studies and Aileen Moreton-Robinson’s concept of patriarchal white sovereignty, the article analyses the federal government’s push for constitutional recognition and demonstrates why reconciliation perpetuates the dispossession of Indigenous lands. The article also engages Michael Rothberg’s figure of the implicated subject to complicate the concept of whiteness and overcome the Indigenous/settler or victim/perpetrator binary. This article contributes to the field of transitional justice by advocating for a more explicit and critical examination of whiteness to advance justice in settler colonial contexts.

Civil substantive and procedural legal means of securing reparations for Ukraine

The subject of the study is the forms of reparations for damage and the procedural means of obtaining them within the institutions which constitute transitional justice and which should comply with international standards. The purpose of the article is to determine the directions for institutional changes in the procedure and peculiarities of compensation for damage caused to individuals by the armed aggression of the russian federation, primarily in national courts in the context of legal institutions of transitional justice. To obtain the results of the study, the author used general scientific and special legal methods, in particular, analysis, generalisation, and comparative legal analysis.
 The conditions for balanced fulfilment of transitional justice tasks in the context of fair reparations for victims have been investigated. The legal means aimed at obtaining reparations for damage caused as a result of armed aggression have been considered. The author identifies the types and role of legal immunities and amnesties as means of reconciliation, their conditions of implementation and application in relation to the effectiveness and availability of reparations for gross human rights violations and war crimes. The forms of reparations that should be guaranteed to victims for the relevant crimes have been investigated.
 The results of the study are a new special approach to determining the relationship between substantive and related procedural legal means of transitional justice that may affect reparations at the national level. The role of amnesties and immunities as legal incentives and means of influencing the effectiveness and accessibility of reparations to victims has been identified and generalised. The provisions on ensuring a balanced ratio of private and public interests in the implementation of transitional justice elements have been further developed. The author identifies areas for a balanced combination of legal means and increasing their effectiveness to ensure the goals of transitional justice.
 The results of the study can be used in educational, law-making, law interpretation and law enforcement processes, in particular in civil proceedings in Ukraine. Practical significance lies in the possibility of applying the results in determining procedural ways to protect the rights of victims.

THE CONTRIBUTION OF THE INTERNATIONAL CRIMINAL COURT IN TRANSITIONAL JUSTICE OF THE POST-CONFLICT SOCIETIES

As a complex concept, transitional justice includes processes and mechanisms related to the efforts of post-conflict societies to face inter alia the consequences of mass abuses and violations of basic human rights. National and international non-judicial and judicial mechanisms are included in these processes. The international courts, the aim of which is to prosecute genocide, war crimes and crimes against humanity, could also be included. The international intervention through investigations could be an important contribution in achieving the goals of transitional justice. Reasonably, these processes are expected to lead to reconciliation and sustainable peace. Unfortunately, in practice, sometimes these expectations turn into disappointments. The paper aims at providing an overview of some of the actual and potential questions of the contribution of The Court in transitional justice in post-conflict societas. The intention is to answer two key questions: 1. Whether and how the International Criminal Court can contribute in achieving the goals of transitional justice? 2. Has the Court since it was established until today made a significant contribution in achieving the goals of transitional justice in post-conflict societies? In this order, we will review the key instruments that are available to the International Criminal Court from a formal point of view, and will consider the Court’s possibilities for processing specific cases from a practical point of view. The factual challenges and criticisms that the International Criminal Court has faced since its inception, will also be discussed.

The politics of methods in transitional justice knowledge production

Abstract This article is concerned with how practices of knowledge production relate to the international politics of transitional justice (TJ). It argues that quantitative scholarly studies—called for in response to the anecdotal and normative studies that prevailed in early TJ scholarship and which, it is argued, continue to shape TJ sub-fields such as the study of local justice—are themselves committed to the normative framework and the goals of TJ that they seek to provide the tools to challenge. Applying a ‘politics of methods’ lens, the article foregrounds the interpretive work of surveys and the methodological choices of large-N impact studies which circle these works back to narrowly defined ideas of what TJ ought to be. The conclusions show how these ‘politics of methods’ contribute to the decontestation of an inherently political choice and practice, and predetermine what policy and practice options are considered useful, relevant and even imaginable. As such they shape that which they claim only to examine. Contributing to both critical methodological debates in International Relations and nascent scholarship on the research–policy–practice nexus in TJ, the analysis provides an under-examined example of the co-constitutive relationship of what is considered to be detached knowledge production and politics.

Evaluating the mechanisms of transitional justice in Iraq (a critical study)

Transitional justice is one of the most important factors for the political stability of countries. Especially in countries whose political system is going through a stage of transition from a state of grave violations of human rights to a stage of commitment to the protection of human rights, or countries that are exposed to political and economic crises that force them to go through transitional stages. Among these experiences stands out the experience of transitional justice in Iraq, which began since the United States occupied Iraq in 2003, passed through several stages, adopted several mechanisms, and established many institutions and laws that took upon themselves the achievement of the goals of transitional justice, and were directly or indirectly reflected on the political process in Iraq. In view of the above, a number of questions are raised, perhaps the most prominent of which are: What are the mechanisms of transitional justice that were applied in Iraq after 2003? Were these mechanisms able to achieve the goals of transitional justice? In order to study this problem, The research stems from the hypothesis that “the implementation of transitional justice mechanisms in Iraq after 2003 was carried out in a selective manner that lacks transitional justice standards, and the achievement of national reconciliation, due to the different goals and orientations of the political elites in Iraq and their external connections, which led to the failure of transitional justice in Iraq.” The most important results of this study were; It is not to benefit from the international experiences of transitional justice, especially the models closest to Iraq, such as South Africa, and to seek the assistance of experts in the field from those countries that share with Iraq the past of dictatorial rule and division on racial grounds.

تقويم آليات العدالة الإنتقالية في العراق (دراسة نقدية)

Transitional justice is one of the most important factors for the political stability of countries. Especially in countries whose political system is going through a stage of transition from a state of grave violations of human rights to a stage of commitment to the protection of human rights, or countries that are exposed to political and economic crises that force them to go through transitional stages. Among these experiences stands out the experience of transitional justice in Iraq, which began since the United States occupied Iraq in 2003, passed through several stages, adopted several mechanisms, and established many institutions and laws that took upon themselves the achievement of the goals of transitional justice, and were directly or indirectly reflected on the political process in Iraq. In view of the above, a number of questions are raised, perhaps the most prominent of which are: What are the mechanisms of transitional justice that were applied in Iraq after 2003? Were these mechanisms able to achieve the goals of transitional justice? In order to study this problem, The research stems from the hypothesis that “the implementation of transitional justice mechanisms in Iraq after 2003 was carried out in a selective manner that lacks transitional justice standards, and the achievement of national reconciliation, due to the different goals and orientations of the political elites in Iraq and their external connections, which led to the failure of transitional justice in Iraq.” The most important results of this study were; It is not to benefit from the international experiences of transitional justice, especially the models closest to Iraq, such as South Africa, and to seek the assistance of experts in the field from those countries that share with Iraq the past of dictatorial rule and division on racial grounds.

Transitional Justice Approaches in Tunisia after the Revolution: The de jure and the de facto

This study investigates the approach adopted by Tunisian policymakers after the 2011 revolution regarding transitional justice (TJ). The Justice-Balance approach is one of the holistic approaches suggested by the scholars to deal with past regimes’ human rights violations. Olsen, Payne, & Reiter (2010) presented this approach; it is the only available approach supported by a large N empirical study which supports it to be the most effective approach to reduce human rights violations and boost democracy, two goals of transitional justice. This study uses the justice-balance approach as a benchmark model of TJ policy after revolutions and examines how far the Tunisian approach is aligned with it both on the de jure and de facto levels. I find a significant gap between the constitutional texts produced to govern TJ after the revolution and the policies subsequently generated to apply them. However, both of them are mostly compatible with the justice-balance approach, as they both adopt a mix of trials and amnesty tools, combined with truth-revealing mechanisms. However, nearly all the adopted mechanisms were de facto applied only partially. Except for national consultations, all adopted TJ mechanisms, including trials, truth commissions, reparations, institutional reforms, and reconciliation efforts, suffered from either a partial or non-transparent application. This approach raises concerns around the de jure/de facto constitutional gap in Tunisia after the revolution. However, the Truth and Dignity Authority (TDA)’s work and the other related policies did follow an approach that considered all mechanisms, except for lustrations. Consequently, I expect that although the Tunisian TJ process was not perfect, it still has a chance to contribute to consolidate the democratic transformation and strengthen human rights respect, depending on how the government and parliament are willing to undertake its continuation.

Re-thinking memory and transitional justice: A novel application of ecological memory

While transitional justice processes call upon individuals and societies to recall and remember, memory practices – and more specifically the frequent politicisation of memory in transitional societies – can undermine transitional justice goals, including peace and reconciliation. This interdisciplinary article seeks to re-think the relationship between transitional justice and memory. It does so by introducing the concept of ecological memory, a supra-political form of memory centred on complex ecosystem responses to disturbance events and the development of resilience to future shocks and stressors. Transposing the concept of ecological memory to the novel context of transitional justice can ultimately foster a new alignment between memory and transitional justice that is more conducive to the realisation of the latter’s core goals. Drawing on empirical data, the article seeks to demonstrate that transitional justice processes can contribute to fostering ecological memory by giving attention to the ecological legacies of war crimes and human rights violations.

Longing for Lost Normalcy: Social Memory, Transitional Justice, and the ‘House Museum’ to Missing Persons in Kosovo

AbstractIn spring 1999, amidst a wider ethnic cleansing campaign, Serb police forces abducted Ferdonije Qerkezi’s husband and four sons, who were never to be seen alive again. She subsequently transformed her private house into a memorial to the lost normalcy of her entire social world. We trace this memorialization process; her struggle for recognition; her transformation into an iconic mother of the nation and her activism, both for missing persons and against the internationally-driven Serb-Albanian normalization process in Kosovo. From a multi-disciplinary perspective, we critically reflect on the theoretical concept of “normative divergence” in intervention studies. We are guided by social anthropological (including immersive, historical-ethnographic, and semantic) analysis of the core tropes of social memory as both narratively and materially embodied by the House Museum. In systematically juxtaposing these to the normative transitional justice principles of truth, justice, non-recurrence, and reparations, and the overarching international intervention goal of reconciliation, we critically interrogate normative divergence per se. The ethnographic “thick description” of this case study—cognizant of context contingency, victims’ agency and experience, cultural change, and social transformation—points to divergent meanings of these principles as resulting directly from the political and institutional failure to provide key transitional justice goals.

The Emerging Right to Justice in International Criminal Law: A Case Study of Colombia

This paper explores the nature of cross-fertilization between international criminal law and human rights law. It is argued that international criminal justice does not only ‘borrow’ from the discipline of human rights law when defining substance and procedure but also generates its own unique set of rights and obligations. They stem from the variety of objectives pursued by international criminal law, including retribution, deterrence, reconciliation, setting the historical record and justice for victims. Different goals produce different societal and individual expectations, which are collectively captured by the emerging sui generis right to justice widely promoted by international criminal law. The paper uses for its analysis the case study of Colombia – a country under the preliminary examination of the International Criminal Court since 2004 and currently implementing the peace deal aimed at ending protracted civil war in the country. This case illustrates how international criminal law values enshrined in the Rome Statute trickle down to the specific situation and merge with the goals of transitional justice and the logic of human rights.

Towards transitional justice? Black reparations and the end of mass incarceration

ABSTRACTThere are many commonalities between the goals of transitional justice and domestic redress movements. We look at the movement for reparations for enslavement and Jim Crow in the United States as an example of a domestic reparations movement, and argue for the usefulness of the concept of transitional justice. We are particularly interested in showing that a future democratic transition – the end of mass incarceration – could animate a renewed push for reparations and a formal investigation into America’s legacy of racial injustice.

Teaching for democracy in the absence of transitional justice: the case of Northern Ireland

ABSTRACTIn many cases, political circumstances do not allow formal for transitional justice processes to occur in countries undergoing a transition from a violent past. In this paper, we ask if education can become a default front line of transitional justice work in the absence of explicit action by the state to address past injustices. Drawing from interviews with educators and using a new citizenship education programme in Northern Ireland as our case study, we argue that several factors, including organisational constraints within the education system, limit the potential of the programme for supporting transitional justice goals. While the effectiveness in this particular case is limited, Northern Ireland provides an example of a citizenship education programme that has moved away from an emphasis on national identity and embraced human rights. Other divided societies might find this model to be an effective conduit in which to promote transitional justice.

Transitional Justice, Jus Post Bellum and the Priority of Conflict Deterrence: Assessing Kenya's Post-Electoral Violence 2008-2013

Transitional justice goals have changed profoundly in recent times. Shifts have occurred both as a result of the evolution of the discipline as well as of a change of objectives and their impacts on warfare cycles (ad bellum, in bello, post bellum). Particularly this second dimension has become decisive in the construction of more effective mechanisms of violence deterrence through transitional justice measures. After a conceptualization of the post bellum, I introduce the notion of conflict deterrence. This is as a sub-optimal goal of international policy falling within the more far reaching standard of prevention as stated in the UN Charter, the Responsibility to Protect documents and, more recently, in the UN Secretary General 2012-3 Reports. Following from these insights, I consider the case of Kenya’s post-electoral phase 2008 and 2013 and argue for a qualified correlation between the action of the International Criminal Court and its deterrence effects. I claim that the hypothesis of a deterrence effects by the ICC are well-grounded but contingent to a) self-interested rational actors, such as high rank politicians or public officials and b) to a systemic interconnection between different institutional actors.

Reassessing the ‘Peace vs. Justice’ Trade-Off: International Justice and Democratic Stability in Post-Milošević Serbia*

The impact of the International Tribunal for the Former Yugoslavia (ICTY) on target states has been primarily assessed in terms of the Court’s contribution to peace and reconciliation in the region. In contrast, this article explores the effects of ICTY conditionality on democratic consolidation in Serbia. It posits that the enforcement of international standards of accountability on recalcitrant states may hinder democratic stability and undermine the goals of transitional justice in the target countries. In the context of a fragile and uncertain transition, the Serbian authorities had to balance the demands and priorities of the ICTY with those of competing domestic groups. By examining the politics of state cooperation with the ICTY in Serbia, this article sheds light on the conflicting effects of the policies of conditionality and shows how the outcomes of externalized justice are affected by domestic political developments.

Legalizing Collective Remembrance after Mass Atrocities

This book chapter explores the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on the individual, replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients. Here, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. Indeed, I believe that incorporation of collective memory into certain judicial proceedings would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and advancing reconciliation.

The (Re)Collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice

When a government engages in the mass killing of its own citizens, how can the nation ever recover? These atrocities destroy the moral fabric which binds a nation. To recover, this fabric must be remade. Many social scientists and legal scholars believe that developing collective memory – an enduring and shared memory of the events that help to heal the wounds of a tattered national conscience and prevent the recurrence of mass atrocities – is essential to such reconstruction. However, the preservation of collective memory is in tension with another impulse after mass atrocity: the desire for justice. Because notions of individualism and autonomy heavily influence legal institutions worldwide, they risk the destruction of collective memory. This friction constitutes a central dilemma in facilitating transitional justice.In this article, I urge a fundamental reconceptualization of the law’s preference for individual memory in the context of transitional justice. I argue that the inclusion of collective memory will facilitate a better understanding of the collective harms that characterize mass atrocities and will serve the distinct goals of transitional justice, including reconciliation, the creation of a historical record, nation-building, and legal reform. I further argue that human rights lawyers should act as preservers and promoters of collective memory. In doing so, they may be able to help heal wounds outside traditional justice tribunals – while at the same time providing essential assistance to these tribunals if and when legal proceedings do finally occur.

The Three R’s of Seeking Transitional Justice: Reparation, Responsibility, and Reframing in Canada and Argentina

In Canada an officially mandated truth commission inquiring into the forced assimilation and abuse of Indigenous children in state-organized and funded residential schools raises profound and in many ways quite novel questions about transitional justice concerning Indigenous peoples in advanced capitalist societies. This article compares the Canadian case with that of a quintessential transitional justice pioneer: Argentina. Focusing on the efforts of justice-seekers in each country, it reveals similarities in their respective pursuits of what the article identifies as three important transitional justice goals: reparation, responsibility and reframing. However, the article also finds a crucial difference between the two cases. This difference is that justice seekers in Argentina have placed a heavy emphasis on social and political accountability, a goal that, in various ways, has received much less attention in the Canadian case. We conclude that this absence raises broader issues about transitional justice processes in countries marked by ongoing legacies of anti-Indigenous colonialism—issues that Canadians from the settler society, in particular, must begin urgently to address.

Finding Each Other's Hearts

Sexual violence during the Peruvian internal armed conflict has come to light through the work of the Peruvian Truth and Reconciliation Commission (2001–3) and Peruvian human rights and feminist non-governmental organizations (NGOs). This paper examines one feminist NGO's response to sexual violence during the internal armed conflict (1980–2000) and to their theorizing practices that contribute to the construction of a new culture of law. Examining the Study and Defense of Women's Rights (DEMUS) project on sexual violence in Manta, Huancavelica brings to light the narrow legal, political, socio-cultural and linguistic avenues available for addressing this violation. This analysis suggests that any effort to address sexual violence during internal armed conflict must attend to the legacy of colonialism because it undermines the goals of transitional justice by denying the victims personhood and circumscribing the conceptual optic through which to address human rights violations. DEMUS' project illustrates the possibility of transforming the culture of law through an intercultural optic that centers the subjectivities of the victims including but not limited to victimhood.

Women Cut in Half: Refugee Women and the Commission for Reception, Truth-Seeking and Reconciliation in Timor-Leste

This article argues that the narrative of refugee and internally displaced women, as well as women generally, is often silent or marginalized in the new national narrative that emerges from transitional justice processes. This is so even with those mechanisms traditionally considered more inclusive of victims’ voices, such as truth commissions. This proposition is tested by evaluating the participation of refugee and displaced women in the Commission for Reception, Truth-seeking, and Reconciliation in Timor-Leste (Comissão de Acolhimento, Verdade e Reconciliação de Timor-Leste), and the representation of their testimony in the final Chega! Report. The Commission is unique among modern truth commissions, having a “reception” function to encourage returns from West Timor. This process can be examined in combination with the contemporaneous trials for serious crimes conducted by a United Nations hybrid tribunal in Dili. However, because refugee protection and transitional justice goals were not synchronized, and more often working at cross-purposes, the overall ability to meet the goals of either were compromised, to the detriment of the most vulnerable.

Women, Security, and the Patriarchy of Internationalized Transitional Justice

In the contemporary global context, transitions from conflict to peace and from authoritarian to democratic governance are a critical preoccupation of many states. In these contexts, accountability for the abuses committed by prior regimes has been a priority for international institutions, states, and new governments. Nonetheless, transitional justice goals have expanded to include a broad range of structural reforms in multiple spheres. Whether an expanded or contracted transitional justice paradigm is used to define the perimeters of change, gender concerns have been markedly absent across jurisdictions experiencing transformation. This article examines the conceptualization of and legal provision for gender security and its subsequent effects upon accountability in times of transition, with particular reference to post-conflict societies. The article closely assesses a range of contemporary issues implicated for women including an examination of post-conflict security from a gender perspective, gender and disarmament, and the centrality and effect of security sector reform for women. The article pays particular attention to the under-theorized and under-researched role of international masculinities, and the patriarchy that is imported with international oversight of transitional societies.