Transitional Justice Institutions Research Articles

Widening the nation-territory gap: Transitional justice, development and spatial state-building in Colombia

This article argues that contemporary humanitarian bureaucracies in Colombia have gradually produced and reproduced specific socio-spatial and epistemological hierarchies through a conceptual device commonly referred to as the nation-territory ( nación-territorio) divide. The nation-territory divide is a way in which public servants, experts, international cooperation officers, and scholars refer to practices and strategies to “territorialize public policy” or to “bring the state down to the territories.” Through an ethnographic study of the mechanisms involved in the implementation of victims’ reparation and land restitution policy in Colombia, I describe the everyday spatial state building practices of national bureaucrats and experts tasked with “territorializing” transitional justice and development paradigms. I discuss how expert knowledge created to implement transitional justice policies fail in that they produce and reproduce the very spatial hierarchies they attempt to mitigate. I argue that in order to strengthen democracy, transitional justice paradigms and practices must challenge the hegemonic configuration of spatial state building and bureaucratic approaches to spatial representation and local governance. By exploring these bureaucratic practices, as well as spatial representations within humanitarian and transitional justice institutions in Colombia, this article contributes to a larger discussion of the implementation of territorial approaches to transitional justice and development.

Nature in Focus: The Invisibility and Re-Emergence of Rivers, Land and Animals in Colombia’s Transitional Justice System

ABSTRACT Harms resulting from a 50-year-old conflict in Colombia were out of all proportion. Clashes between organized armed groups, such as guerillas, army troops and paramilitary groups, resulted in countless human rights violations. The emergence, degradation and continuation of the war has shown that, beyond a clash of armed groups, the conflict was and continues to be underpinned by a ‘logic of dispossession, exploitation, and domination.’ In the shadows of the strife, non-armed actors, such as businesspeople, corporations and politicians, benefited from the war, and participated in land grabbing, forced displacement and the illegal possession of land that historically belonged to Indigenous People, campesino and afro-communities. Along with human bodies as the first territory targeted for dispossession, lands, rivers and animals were severely impacted. This article explains how the Colombian transitional justice architecture – anthropocentric and focused only on armed actors’ accountability – is ill-equipped to deliver justice and remedy for victims of corporate abuse and to properly address the harms against land, rivers and animals. This piece also reflects on the endeavours that both transitional justice institutions themselves and civil society at the domestic and international levels have made to effectively respond to the Colombian conflict’s systems of dispossession and, most importantly, to their victims.

تحديات المصالحة الوطنية في ليبيا بعد عام 2011-2021

Abstract The protests were in Libya in 2011 and began in certain areas and then spread to include all segments of the people on February 17, 2011, The revolution was carried out by the youth who revolted against the regime of dictator Muammar Gaddafi, and with the support of all Libyan society, which was based on belonging to the tribe before belonging to the state and preferred Customs and traditions to civil laws, in particular. After the control of the rebels and the defection of Interior Minister Abdel Fattah Younis from Muammar Gaddafi and his regime, and since the establishment of the National Transitional Council as the sole legitimate representative of the revolution of February 17, 2011, the process of democratic transition began in a new stage that the Libyan people had not witnessed before, and the National Transitional Council was established under the leadership of Mustafa Abdel Jalil In which representatives of the various local councils in the different regions of Libya participate, and differences emerged between the internationally recognized government resulting from the democratically elected House of Representatives, and armed groups outside the government’s authority, which negatively affected national reconciliation in Libya. For the success of the national reconciliation process in Libya, real actors should be present at the negotiating table, militia leaders, tribal leaders, political leaders and army representatives in the former regime, as well as disarmament and the integration of fighters into society, and state institutions should be supported by supporting transitional justice institutions, applying the principles of fairness to victims, and not employing eradication (Isolation Law political) towards revenge, and dismantling social and historical grievances.

Flexible constitutions and transitional justice, questioning the use of the amendment power in transitional justice contexts

This paper discusses the tension between the constitutional amendment power and transitional justice. This controversy takes place in contexts where transitional justice institutions are introduced with the aim of strengthening other democratic institutions. The issue under consideration is the possibility of an undemocratic use of the amendment power under the veil of transitional justice and the response of Constitutional Courts to this use. This risk is associated with the resistance of Constitutions to change, a risk that increases when the Constitution is more flexible. The Colombian case illustrates this discussion and allows us to identify a response from the Constitutional Court to this use.

Shredded

Abstract From 2012 to 2016, the Colombian Government and the FARC-EP guerilla group sought to end the region’s longest non-international armed conflict. Under the auspices of the international community, this process drew from a complex series of practices and knowledge often known as ‘transitional justice’. Indeed, international expertise — in law and other fields — was also actively mobilized by both parties, as well as civil society and the anti-peace opposition, to contest the meaning of these terms. On paper, the peace agreement adopted a cutting-edge and comprehensive system aimed at delivering truth, justice, reparation, and non-repetition (the SIVJRNR), including both judicial and extrajudicial mechanisms following international standards and best practices. Yet in practice, the situation became increasingly dire after the peace agreement was narrowly voted down in October 2016. Two years later, having entered government, the former populist opposition proudly announced its plan to shred the peace accord and the SIVJRNR (including its crown jewel: the Special Jurisdiction for Peace or JEP). In this context, this article seeks to identify and understand the strategies which might be adopted by transitional justice institutions to prevail against waves of populist misinformation and backlash. The Colombian experiment can offer important insights on how humanitarian actors can generate public narratives of reconciliation in our current dire times of mistrust.

Implementing transitional justice in post-transition Central African Republic: What viable options?

The Central African Republic currently is in search of the most suitable approach to adopt in order to address serious crimes and human rights violations committed in the country in recent years. This article is a contribution to the ongoing debate relating to transitional justice options in post-transition CAR. It suggests a three-pronged policy; focusing on the perpetrators, the victims and on society generally. The proposed policy in respect of perpetrators refers to the International Criminal Court, the Special Criminal Court and the national judiciary. Amnesty could be granted to suspected perpetrators willing to cooperate fully with transitional justice institutions. Such individuals equally could be subjected to diverse forms of lustration in exchange for forgiveness. As far as victims are concerned reparation programmes should be adopted and the necessary skills provided in order to enable them, their relatives and communities to earn a living. Lastly, society-focused transitional justice initiatives could involve the effective operationalisation of the Truth, Justice, Reparation and Reconciliation Commission, the establishment of a permanent national peace and dialogue commission and the involvement of community-based mechanisms and religious leadership. Yet, in order to increase the likelihood of success for the proposed transitional justice policy, the overall capacity of the CAR state ought to be significantly improved. Furthermore, external polities will have to refrain from interfering in the country's internal affairs and, at the same time, the international community should increase its support of the CAR.

Trying Just Enough or Promising Too Much? The Problem-Capacity-Nexus in Tunisia’s Transitional Justice Process

ABSTRACT This article shows that for post-revolutionary Tunisia, a holistic approach to transitional justice – which aims to address a wide range of justice issues through a combination of measures – may lead to an expansion of mandates and consequently, to the overloading of transitional justice institutions. It therefore identifies a ‘problem-capacity-nexus’: While the expansive approach appears well-suited to relevant problems and the capacities of transitional justice professionals, it does not necessarily fit with the capacities of domestic institutions. Thus, transitional justice, while making efforts to address a broad range of relevant problems, has yet to find suitable avenues for actually doing so.

"Transitional Justice Histories: Narrating Mass Atrocities." Forthcoming in the Oxford Handbook on Transitional Justice. Alex Hinton, Lawrence Douglas, and Jens Meierhenrich, eds., Oxford University Press.

Mass political violence unsettles the past like no other comparable event. The battle over its interpretation typically begins the moment the first shot is fired and continues long after the final peace is signed. Transitional justice institutions actively partake in that struggle and transitional justice institutions inevitably broach the most sensitive and hazardous historical issues in the conflict. The stakes are high: their conclusions can facilitate the process of overcoming the historical legacy of a conflict and fostering peaceful coexistence. Conversely, they may also represent a lost opportunity, or worse, actively forestall open public debate about the past. Our review of the historical accounts of transitional justice institutions evaluates the assertion that because truth commissions are released from the criminal justice mandate of judging guilt or innocence, they are more able to address the broader origins and causes of the conflict. We find to the contrary: truth and reconciliation commissions do not in themselves represent an improvement on courts with respect to the historical accounts they produce. Next, we compare the histories produced by international institutions to those of domestic institutions. International transitional justice institutions, by virtue of their temporary status, specific functions and constitution outside the formal state apparatus, are less prone to nationalist distortions, and more open to the voices of all those affected by mass violations. International institutions also have capacious rules of evidence, allowing them to admit a wider range of relevant material, from video footage to the scholarship of experts. However, being constituted internationally is not in itself sufficient to ensure that a transitional justice institution produces a wide ranging, accurate and comprehensive historical account. Lastly, we underscore how the process of writing history can be just as vital as the final outcome. In their investigations, courts and commissions often gain access to vast archives of secret government agencies, revealing the inner workings of a political and security apparatus and providing access to primary documents that will keep historians busy for decades. Trials and public inquiries frequently generate social movements that promote accountability, legal remedy and a more accurate view of the past than is present in official discourse. Recognizing the importance of the contested process of history-writing moves us away from a rigid dichotomy that posits law on one side and history on the other, to an actor-centered and empirical approach that focuses on the context of the transition from conflict, and the strategies of political and legal actors that seek to achieve certain identifiable goals through writing history.

Courts: A Template and A Site of Transitional Justice Collapsing as a Model

The conventions of transitional justice posit moments in time in which breaks with the past demand accounting for horrific wrongs. Aiming to acknowledge and memorialize practices of injustices that entailed widespread acts of violence, proponents of transitional justice often call on governments to craft responses to account for their predecessors’ wrongdoing and to enshrine new commitments to fairer social orders. The paradigm is disjuncture, as past regimes are replaced and new institutions generated. Many accounts of transitional justice thus focus on how polities, undergoing substantial changes, constitute methods to depart deliberately from extant government institutions that may be implicated in the wrongful acts of the prior political order. Criminal prosecution is understood as a potential (if insufficient or unwise) alternative, and adjudication is thus the sociological habitus (to borrow Pierre Bourdieu’s term) in which these deliberately ad hoc transitional justice institutions are forged. As transitional justice has become a feature of several post-World War II reconstructions, the results have been inquiries, including and akin to public trials, to provide venues for accountings. These commissions elicit and record testimony but, unlike trials, often reframe questions of culpability to put community building and reconciliation ahead of retribution. Courts thus provide a template and a tool, but are generally taken for granted, rather than interrogated as sites of transitional justice in which radical reorganization has been required to redress the histories of systemic injustices instantiated in courts by judges. Further, few analyses examine whether and how ordinary justice has been affected by the ideas that motivate transitional justice. In this chapter, I move courts from the backdrop to center stage by sketching the impact of social movements on the reconstitution of courts in the United States. I underscore first that today’s widespread use of courts as potential fonts for rights-recognition has been so successful that it often masks their history as fonts of injustice and as institutions of exclusion in which persons of all colors, gender, and classes were far from welcome, let alone equal. Only during the second half of the twentieth century did courts in the United States became famous for requiring changes in other institutions (such as the desegregation of schools and minimally habitable prisons) and for requiring the executive and legislative branches in state and federal systems to provide remedies. Under-appreciated, under-valued, and under-theorized is that courts themselves were a locus of oppression and are one of the institutional sites that has been renovated to provide systemic redress. My second point is that what makes courts models for transitional justice institutions — their self-conscious (albeit not fully successful) efforts to be egalitarian, rule-of-law, public venues — is at risk. Transnational political and social movements of the twenty-first century are propelling shifts in the law of courts and in the methods by which disputes are resolved in and outside of courts. The results can already be felt in the United States, as the aegis of courts has been narrowed with the erosion of opportunities for state-based adjudication to provide public accounting or accountability. This loss of the option to turn to courts comes in many instances from the judiciary itself. The privatizing processes include moving out of sight decision-making in courts and revising doctrine to permit employers and providers of services to block access to courts and aggregation and instead require claimants to use private dispute resolution systems. For those who are seek to use or are brought into courts, the fees imposed limit access or become sources of debt. The remedies associated with ordinary justice go by the boards, along with healing, apology, new forms of restitution, and shared public narratives of past wrongdoings that are hallmarks of transitional justice. Hence, theories and practices of transitional justice need to take into account the contemporary pressures on systems for redress (of which courts are one example) so as to understand the dependence that transitional justice has had on public courts as a backdrop and the impact of these attacks on the aspirations animating the many innovations of the transitional justice movement.

Mechanisms of transitional justice in overcoming the consequences of armed conflict

The article examines transitional justice as a set of post-conflict settlement measures. Today, transitional courts, truth commissions, amnesties, and reparations are transitional justice mechanisms that are widely and relatively effectively used to resolve conflicts around the world. Today, the mechanisms of transitional justice are also being improved to meet the needs of victims of armed conflict. Sociological research confirms that the combination of international and local dimensions of responsibility is an important demand on the part of victims of armed conflict.At the same time, the prosecution of perpetrators of crimes committed during armed conflict in modern conditions concerns individual prosecution, which often goes beyond public prosecution. The state retains the obligation to bring perpetrators of crimes to justice, but this can be done through mechanisms of international law.The practice of post-conflict settlement is due to the fact that not all courts are equally effective in punishing those guilty of crimes and criminal prosecution is not always successful. Formal truth-seeking processes involving the investigation of past violations involve truth commissions. Another important mechanism of transitional justice is the politics of memory. The politics of memory as an element of transitional justice encompasses the work of states with a historical past.The combination of transitional state justice measures with the use of ad-hoc institutions allows for the restoration of justice in the most controversial dimensions of armed conflict. Peace is accelerating in the direction of autonomy and expansion of the mandates of transitional justice institutions, organized memory policy, effective cooperation of national and international institutions to determine their jurisdiction in human rights, sociological research on the needs of victims of armed conflict. Evaluation of the effectiveness of transitional justice mechanisms is possible only if their interconnectedness, interaction with civil society and the state are taken into account.

Not Being Able to Speak Is Torture: Performing Listening to Painful Narratives

Abstract This Note discusses a new creative approach to intervene in the interaction between survivors who contribute their memories of a painful past and the public they want to reach. It proposes that by turning both the narrator and the public into performers of listening, they are placed in a relational context that offers an alternative space in which victims’ and the public’s memories, emotions and thoughts in a transitional context can be worked through. The method thereby corrects the notion of the public as a disembodied, virtual totality underlying state-led transitional justice institutions.

Political Violence as a Time That is Past? Engaging With Non-Participation in Transitional Justice in Cambodia

Transitional justice scholarship has increasingly focused on participation to critically reflect upon the legitimacy and transformative potential of transitional justice. This article addresses these issues yet through a different vantage point: that of non-participation. It focuses on the case study of the Khmer Rouge Tribunal and a particular set of actors: those who continue to face political violence in Cambodia today. Thereby, it engages with the perspectives of those often overlooked in transitional justice for having opted out of the process, but also for putting forward justice claims that exceed the mandate of established transitional justice institutions. This article draws from qualitative fieldwork conducted in Cambodia between 2013 and 2016. It demonstrates the epistemic value of engaging with non-participation in transitional justice. It argues that non-participation in judicial transitional justice processes is inherently linked to the ways in which ordinary citizens experience and understand the law in their everyday life. It further highlights continuities in subjective experiences of political violence, which question discourses that political violence is a time that is past in Cambodia.

TRANSITIONAL JUSTICE AND THE CHALLENGING PURSUIT OF SOCIAL JUSTICE

This article argues that the shortcomings of the currently dominant transitional justice model, which largely ignores considerations of social justice, can be explained by several structural factors within the international legal system. It considers the relatively recent establishment of transitional justice institutions and argues that despite different forms – international criminal tribunals, truth and reconciliation commissions, peoples’ tribunals – these institutions are motivated by similar rationales and have the same underlying objectives. These parallels, enhanced by the both explicit and implicit normative influences that the respective institutions have on each other, and the overly linear notion of time embedded in international law have given rise to a problematic model of transnational transitional justice. Among others, this model hinders the pursuit of social justice beyond a narrow focus on individual human rights and individualized responsibilities for specific crimes. The article calls for a deliberate turn away from prefabricated institutional responses as well as for a much-needed reconceptualization of the prevailing model of justice within international legal discourses in order to address structural inequalities and forms of injustice that are often part of the root causes of armed conflicts.

Back to the Future? Confronting the Role(s) of Natural Resources in Armed Conflict Through the Lenses of Truth and Reconciliation Commissions

Abstract Natural resources are critical factors in the transition from conflict to peace. Whether they contributed to, financed or fuelled armed conflict, failure to integrate natural resources into post-conflict strategies may endanger the chances of a long-lasting and sustainable peace. This article explores how Truth and Reconciliation Commissions (trcs), as transitional justice institutions, can contribute to addressing the multifaceted role of natural resources in armed conflict. Drawing insights from the practice of the Sierra Leonean and Liberian trcs in this area, the article identifies several ways in which truth-seeking bodies may reinforce post-conflict accountability and avoid the future reoccurrence of abuses and conflict by actively engaging with the natural resource-conflict link. As it is often the case with other transitional justice initiatives, trcs’ engagement with the role of natural resources in armed conflict brings along opportunities and challenges, which are contextual and influenced by domestic and international factors.

Understanding Sierra Leonean and Liberian teachers’ views on discussing past wars in their classrooms

ABSTRACTVarious curricular and textbook initiatives exist to aid in the national processes of coming to terms with past violence, often serving the political goals of the victors, sometimes supported by international transitional justice institutions. Sierra Leone and Liberia each experienced a devastating civil war during the 1990s and into the 2000s, and each is struggling to rebuild shattered education systems. In addition, each country has experienced a set of post-conflict transitional justice initiatives: Truth and Reconciliation Commissions in each, and a Special Court for Sierra Leone. Although their respective ministries of education have attempted to address peace education through UNICEF-sponsored curriculum revision processes, those efforts have not yet reached the majority of serving teachers, so a discussion of teachers’ actual practices is vital. This article uses interviews with teachers in rural and urban Sierra Leone and Liberia to discuss whether and how teachers talk about past war in their classrooms; whether they think it is important to discuss past conflicts, and if so, why; and what kind of curricular support would help them better teach about the wars. The article discusses how and why teachers embrace or subvert official efforts through their classroom practices, and compares the Sierra Leone and Liberia contexts and results. This research will help us to understand teachers’ own perspectives on addressing past conflict in their classrooms, and perhaps help policy-makers better implement their peace education initiatives.

Seksualno i rodno zasnovano nasilje u oružanim sukobima

The purpose of this review paper is to point out the problem of conflict related sexual violence, which is often misrepresented as a issue. Namely, most surveys, official reports and academic publications deal exclusively with sexual violence committed against women and girls, while violence against men and boys is largely excluded from the discourse on sexual and gender-based violence. The reasons for this are many, starting from the already existing gender inequality and marginalization of women in society and the fact that conflicts and violence disproportionately affect women and girls, to the fact that men because of stigma and fear being accused for homosexual activity, do not report violence. Therefore, the largest numbers of international legal instruments deal with the protection of women and girls from sexual and gender-based violence, providing adequate assistance and reparation, while the protection of men and boys, as well as the response of transitional justice institutions to this violence, are often omitted. Without intent to criticize the existing discourse on gender equality, or sexual and gender-based violence, as well as to re-examine the efforts of the international community in tackling this problem, this paper aims to show that victims of sexual violence in armed conflicts can not be viewed in the context belonging to a particular gender. Victims of sexual violence in armed conflicts may be all, regardless of gender, therefore protection of victims, assistance and reparations should be available for all.

Notes from the Field: Global Indicators for Transitional Justice and Challenges in Measurement for Policy Actors

Indicators have become an important tool for policy actors at the bilateral and multilateral level over the past twenty years; however, they have mainly been developed in relation to development and public health goals. This note identifies the practical and methodological challenges in developing global (i.e. cross-national) indicators for transitional justice, through reflection on a practical engagement with UN Women, for which the author developed two indicators on women’s participation in truth commissions and in reparations programs. Specific challenges to developing the indicators included: the lack of administrative data on transitional justice; difficulty in establishing agreed definitions on “what” is being measured, which is linked to the lack of common agreement on the objectives of transitional justice initiatives; lack of standardization of data collection practices across countries; lack of engagement between transitional justice institutions’ staff and statisticians; and the general challenges in measuring progress against human rights objectives. I introduce a “basket” approach as an imperfect solution to this data reality. The note concludes by identifying specific changes that would ease the process of developing meaningful cross-national indicators on transitional justice.

Transition and Justice: An Introduction

ABSTRACTSince the end of the Cold War, political new beginnings have increasingly been linked to questions of transitional justice. The contributions to this collection examine a series of cases from across the African continent where peaceful ‘new beginnings’ have been declared after periods of violence and where transitional justice institutions played a role in defining justice and the new socio‐political order. Three issues seem to be crucial to the understanding of transitional justice in the context of wider social debates on justice and political change: the problem of ‘new beginnings’, of finding a foundation for that which explicitly breaks with the past; the discrepancies between lofty promises and the messy realities of transitional justice in action; and the dialectic between logics of the exception and the ordinary, employed to legitimize or resist transitional justice mechanisms. These are the particular focus of this Introduction.

Lament as Transitional Justice

Chapter 2, Through interpretations of poetry in Carolyn Forche’s anthology, Against Forgetting, and novels from Rwanda, the USA, and Bosnia, Chapter 2, “Lament as Transitional Justice,” argues that lament is a social and ritualized form, the purposes of which are congruent with the aims of transitional justice institutions. Both laments and truth commissions employ grieving narratives to help survivors of human rights trauma bequeath to the ghosts of the past the justice of a monument while renewing the survivors’ capacity for rebuilding civil society in the future. Human rights scholars need a broader, extra-juridical meaning for “transitional justice” to capture its true power.

Bringing Justice and Enforcing Peace? An Ethnographic Perspective on the Impact of the Special Court for Sierra Leone

The Special Court for Sierra Leone was set up in 2002 to try those who bear the greatest responsibility for actrocities perpetrated during a decade-long civil war in the country. This would, according to Court officials and observers, bring justice to the victims of the war and contribute to peace. Based on eight months of ethnographic fieldwork in Sierra Leone between 2010 and 2012, this article challenges those assumptions by exploring the viewpoint of ordinary Sierra Leoneans. The impact of the Special Court on the lives of ordinary people is rather small, first and foremost because they have a different understanding of what justice constitutes and who is able to provide it. This resulted in low expectations of the Court from the beginning. Moreover, the relevance of transitional justice fades in the context of daily challenges and remaining injustices. While the Special Court is viewed more positively as contributing to the peace, transitional justice institutions should engage more critically with the local context they operate in.