Transitional Justice Processes Research Articles

Human Rights and Transitional Justice in the Maldives: Closing the Door, Once and For All?

AbstractIn 2020, the Maldives instituted a transitional justice process to address decades of systematic human rights abuses including the widespread use of arbitrary arrest and detention, torture, and the forced depopulation of entire island communities. While the country’s decision to confront its violent past is not unusual, the institution it has established to undertake that task is. Rather than institute a truth and reconciliation commission (TRC), refer cases to its Human Rights Commission, or undertake criminal trials in its domestic judicial system, the Maldives has taken the unprecedented step of establishing a temporary Ombudsperson’s Office for Transitional Justice (OTJ). Comparing the OTJ to national human rights institutions and TRCs, this article examines how and why the Maldives’ transitional justice process has taken this unusual form. It suggests that the OTJ represents a new attempt to address the full range of human rights abuses, including violations of social and economic rights, perpetrated by repressive regimes.

Making home alive again after war: Acoli Kaka’s Indigenous land sovereignties in Northern Uganda

AbstractAfter the war between the Ugandan government and the Lord's Resistance Army (1986‐2006), 90 per cent of the displaced rural population in Northern Uganda returned to small‐scale farming on their ancestral lands and their systems of communal land stewardship. At the time, there was much debate about transitional justice interventions to address war's violence, but in that same period over 85 per cent of Acoli chiefdoms saw affiliated clans, or kin‐based political communities (kaka), negotiate to write down their Indigenous governance constitutions for the first time. Acoli Kaka’s return to their ancestral lands and small‐scale farming, and subsequent engagements with tekwaro – Indigenous knowledge – through constitution writing, served to strengthen Indigenous governance and law after their weakening in contexts of war and displacement. It is argued here that these engagements and negotiations rooted in the land, regardless of their outcomes, served to orient relationships away from the fragmenting, unprecedented, forced Acoli‐on‐Acoli violence experienced during the war. A resurgence of Acoli Kaka’s Indigenous law and governance rooted in communal land stewardship is linked to relational repair and supports calls for transitional justice processes to nurture and respect Indigenous land rights. These ethnographic arguments also lend support to kaka’s ongoing efforts towards clan unity (ribbe kaka) and to secure communal land sovereignties.

Learning from Civil Society Actors in Turkey: Using Transitional Justice in an Ongoing Conflict

ABSTRACT∞ This article examines the role of civil society in the implementation of transitional justice in Turkey’s ongoing Kurdish conflict, which is characterized by historical state violence and a lack of official transitional justice processes. Drawing on 24 interviews, the research reveals the evolution of civil society engagement from its peak during the 2013–2015 peace process to its decline under increasing authoritarianism. The research argues that, despite challenges, civil society retains the potential to drive incremental change in the absence of formal transitional justice mechanisms. However, the authoritarian regime has significantly curtailed its capacity, creating a limited civic space for transitional justice. The article highlights the need for stronger links between civil society in Turkey and international transitional justice scholarship. Such collaboration could empower activists, enabling them to overcome challenges and increase their effectiveness. Turkey offers a unique case for transitional justice scholars and practitioners to learn from civil society actors committed to pursuing justice.

Singing truth to power: Transformative (gender) justice, musical spatialities and creative performance in periods of transition from violence

Feminist security studies have demonstrated that transitional justice processes worldwide have largely fallen short in providing actual transformative justice for women and that many gendered war experiences remain largely unaccounted for. Through an activist-academic collaboration and mobilizing feminist scholarship on war, embodiment and emotions together with literature on transitional justice and the arts, this article argues that women’s collective artistic resistance can foster deeper cultural and structural changes in transitional justice settings. By delving into the case of the women’s music collective Enkelé in Colombia, the article examines the creative possibilities afforded by music and choreography to document and testify to an enduring culture of violence and their role in probing the effectiveness of post–peace agreement transitional justice. We contend that paying attention to musical performances is key because these can express new visions of justice that are not constrained by the limits of what is possible and feasible in formal transitional justice mechanisms and can offer corporeal connectivity able to bring together communities fractured by war and armed conflict and to give visibility to knowledges and practices of memory and healing of marginalized communities.

Just collateral damage? Accountability of economic elites in peacebuilding and transitional justice in Colombia

AbstractAnalyzing how transitional justice (TJ) mechanisms address the role of economic and political elites in contexts of widespread violence is crucial for understanding their possible transformative impact. The type of challenges faced by TJ instruments when trying to deal with economic elites involved in human rights violations also reflects the extent and degree of these groups' power in a specific transitional context. Looking at the two main transitional justice processes in Colombia, this paper argues that accountability for these privileged actors tends to materialize in cases in which the alliances between different kinds of elites are threatened, or even collapse. However, as this article will show, judicial TJ mechanisms on their own can only have a very limited transformative impact on the accountability of economic elites and their liability for human rights violations in the absence of strong support by state institutions. TJ instruments can provide an exceptional framework to trigger and motivate meaningful transformations. Nonetheless, the concrete realization of these changes far exceeds the possibilities, capacity, and resources of TJ, which in and of itself cannot replace state institutions, especially an ordinary justice system that should continue to make progress on these cases.

Transitional justice at the National Human Rights Commission of Nepal: challenging legitimacy, credibility, and effectiveness

ABSTRACT In the past three decades, national human rights institutions (NHRIs) have becoming an increasingly common feature of transitional and post-conflict justice processes. As institutions designed to promote and protect human rights, they have been afforded a range of responsibilities, including investigating conflict-related human rights violations, assisting with the establishment and functioning of ad hoc mechanisms like truth and reconciliation commissions, and contributing to accountability. Drawing on evidence from the case of Nepal, however, this article demonstrates that engaging in transitional justice processes places NHRIs at considerable risk. It argues, in particular, that the political nature of transitional justice and compromises it inevitably entails can serve to jeopardise the legitimacy, credibility, and effectiveness of NHRIs. The article thus concludes that far greater consideration of the impact that transitional justice has on NHRIs and development of measures to protect their integrity in highly fraught political contexts is required.

Discovering What Is Already Known: The Afro-Colombian Ancestral Justice System before the Special Jurisdiction for Peace

ABSTRACT∞ For decades, Afro-Colombians have been ignored by Colombian society and its legal system. While the Colombian Constitution recognized the indigenous special jurisdiction, Afro-Colombian ancestral and traditional systems of justice were never acknowledged. The latter were further weakened by the armed internal conflict the country endured for more than half a century. In 2016, the Final Peace Agreement was signed and Colombia undertook its transitional justice process. This led for the first time to the recognition of the Afro-Colombian justice system as part of a transitional justice process. In conversation with an Afro-Colombian community leader of the Association of Community Councils of Norte Del Cauca, this article discusses the innovative interjurisdictional and intercultural mechanisms that have been designed by the Special Jurisdiction for Peace to interact with Afro-Colombians. It explores the implications of these legal developments for transitional justice in Colombia and beyond.

Viable justice: survivors of sexual and gender-based violence and/or torture amongst South Sudanese refugees living in settlements in Northern Uganda

PurposeThe study aimed to listen to refugee survivors of sexual and gender-based violence (SGBV) and/or torture and explore what justice meant to them in exile. This study argues that what the survivors who participated in this research wanted was “viable justice”. The research was funded by the British Academy and Leverhulme Trust.Design/methodology/approachUsing a survivor-focussed justice lens combined with a trauma-informed approach, narrative interviews were held with 41 women and 20 men refugee survivors living in refugee settlements in Northern Uganda. The researchers also conducted semi-structured interviews with 37 key informants including refugee welfare councils, the UN, civil society, non-government and government organisations. Thematic analysis of the data resulted in the following themes being identified: no hope of formal justice for atrocities that occurred in South Sudan; insecurity; lack of confidence in transitional justice processes in Ugandan refugee settlements; abuse and loss of freedom in refugee settlements; and lack of access to health and justice services in refugee settlements.FindingsThis study argues that what the survivors who participated in this research wanted was “viable justice”. That is justice that is survivor-centred and includes elements of traditional and transitional justice, underpinned by social justice. By including the voices of both men and women survivors of SGBV and/or torture and getting the views of service providers and other stakeholders, this paper offers an alternative form of justice to the internationally accepted types of justice, which offer little relevance or restitution to refugees, particularly where the crime has been committed in a different country and where there is little chance that perpetrators will be prosecuted in a formal court of law.Research limitations/implicationsThe research findings are based on a small sample of South Sudanese refugees living in three refugee settlements in Northern Uganda. Thus, wider conclusions should not be drawn. However, the research does suggest that a “viable justice” approach should be implemented that is gender and culturally sensitive and which could also be trialled in different refugee contexts.Practical implicationsImprovements in refugee survivors’ dignity, resilience and recovery are dependent upon the active engagement of refugees themselves using a “survivor-focussed approach” which combines formal and community-based health services with traditional and transitional justice responses.Social implicationsThe provision of a “viable justice approach” ensures those who have experienced SGBV and/or torture, and their families, feel validated. It will assist them to use their internal, cultural and traditional resilience and agency in the process of recovery.Originality/valueThe research findings are original in that data was collected from men and women survivors of SGBV and/or torture and service providers. The empirical evidence supports this study’s recommendation for an approach that combines both formal and survivor-focussed approaches towards health and viable justice services to meet the needs of refugees living in refugee settlements. This is a response that listens to and responds to the needs of refugee survivors in a way that continues to build their resilience and agency and restores their dignity.

The Interplay between National Truth Seeking and Criminal Justice Mechanisms in Transitional Justice Processes: A Comparative Case Study of the Liberian (2005 ) and the Kenyan (2008) Transitional Truth Seeking and Justice Processes

The Interplay between National Truth Seeking and Criminal Justice Mechanisms in Transitional Justice Processes: A Comparative Case Study of the Liberian (2005 ) and the Kenyan (2008) Transitional Truth Seeking and Justice Processes

In other words: the strategic use of Nasa Indigenous language in legal settings

After 56 years of internal armed conflict, Colombia undertook a transitional justice process and established the Special Jurisdiction for Peace (SJP or JEP in Spanish) as the court in charge of resolving cases related to the conflict. In 2018, the JEP opened a case to investigate gross violations committed against the Nasa Indigenous people and their ancestral territory during armed conflict. In the proceedings before the JEP, Nasa authorities and lawyers, most of whom are fluent in Spanish, have been purposely using linguistic constructions in Nasa Yuwe, their native language. This article explores the purpose behind this linguistic practice and its potential implication for the JEP and international law. Through critical discourse analysis and socio-linguistic analysis of legal documents, the article outlines different strategic uses of language by an ethnic minority, such as the Nasa, to strengthen and broaden their rights.

The Complementarity Paradigm: Tracing the Transitional Justice Blueprint in the Inter-American System of Human Rights

ABSTRACT∞ The promotion of ‘home-grown’ approaches to transitional justice is a powerful trope animating the field, encouraging local ownership of transitional justice processes, and refusing ‘one size fits all’ formulas. I challenge this account by exploring how the obligations resulting from anti-impunity’s advent yield only one particular institutional design that seems compatible with obligations under the American Convention on Human Rights. This means that the state’s autonomy to institutionally design a transition is increasingly narrowed in the Inter-American System of Human Rights. I develop this argument by exploring how the right to truth is enforced, showing that the interaction between regional obligations and truth as a right yields a specific transitional institutional blueprint. In doing so, I unpack legal techniques that assist in framing as necessary a transitional justice model that is a contingent, and reckon with its implications.

Images from Exile

This roundtable discussion brings together the teams of two online participatory photography projects with exiled victims of the Colombian conflict, Tejiendo Vidas [Weaving Lives] in Spain and Fotodiásporas [Diaspora Photos] in the USA. Both projects were linked, in distinct ways, to the Colombian state’s efforts to provide recognition and reparations to victims of the country’s armed conflict as part of wider transitional justice and peacebuilding processes underway since the signing of the historic Colombian peace accord in 2016. The participants in these projects were some of the estimated one million people who have left Colombia as a result of the armed conflict between 1982 and 2020. They used photography as a means to process and make sense of their experiences, to heal through building connection and dialogue and to be seen. Bringing together the multi-disciplinary teams made up of photographic facilitators, psychotherapists and transitional justice researchers who ran these two projects, this roundtable discusses the responsive methods, logistics and dynamics of virtual and hybrid projects that fused participatory and therapeutic photography approaches. Reflecting on the outcomes, similarities and differences between the two projects, the conversation explores, in a context where economic and material reparations are slow to emerge, the role that participatory photography projects have to play in enabling symbolic reparations for Colombians whose lives have been permanently changed by conflict.

The Social Determinants of Health and Genocide: Towards a Public Health Integrated Framework of Genocide and Mass Violence

This paper makes a normative argument about transformations of public health as a necessary condition required in any transitional justice process. We seek to bridge the gap between the fields of genocide and public health to understand the recursive relationship between genocide and the social determinants of health. We show that structures and institutions established during genocide create enduring impacts on the public health outcomes of victim and survivor groups even after the ousting of the original perpetrators. Our comparative analysis of the Rwandan Genocide and the colonial genocide of Indigenous communities in Canada surveys the available public health literature and argues that perpetrators of genocide deliberately design public health systems for the explicit purposes of destroying target communities over the longue durée. When these systems are insufficiently transformed, post-genocide societies face significant barriers to transitional justice and reconciliation as a direct result of their impacts on survivor communities. In Rwanda, delayed addressal of the HIV/AIDS epidemic engineered by the Hutu Power regime continued to victimize Tutsi women decades after the mass killings have ended; in Canada, legacies of family separation and the Indian Residential School system have straddled Indigenous communities with high rates of comorbidities and early death consistent with colonial genocide policies.

Case study on the effects of the implementation process of transitional justice in some North African countries

The Maghreb countries were and remain a vital space for the states of the Euro-Mediterranean space, thanks to the millennial interconnection of the respective societies, including in the light of the democratization processes of the region in question. However, the truth is that Europe has had and continues to have a major influence on the democratization process of North Africa, including through the implementation of various processes of reconciliation of societies that have passed through authoritarian regimes, offering certain programs and projects to strengthen the confidence of citizens in state institutions.

The ‘Domino Effect’ of Ongoing Violence on Transitional Justice: The Case of Colombia’s Special Jurisdiction for Peace

ABSTRACT∞ This article examines the tangible consequences of ongoing armed violence for the implementation of Colombia’s innovative transitional court, the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP). Establishing transitional justice mechanisms in contexts of persistent armed violence poses significant challenges and the implementation process is likely to seem flawed or lacking to those actors involved. These complex scenarios raise critical questions for the field of transitional justice, notably regarding the expectations of victims and the feasibility of providing truth, justice and reparation in hostile settings. Based on the case of the Colombia’s northwestern Urabá region, this article argues that contexts of ongoing violence have a direct adverse effect on the possibility of the meaningful and effective participation of victims, perpetrators and other key actors in transitional justice processes. Consequently, this restricted participation initiates a ‘domino effect,’ which negatively impacts other transitional goals, including, in the specific case of the JEP, its restorative aims.

Beyond context: taking political economy seriously in the study of corporate accountability

ABSTRACT The article argues for taking political economy seriously in the study of corporate accountability in transitional justice processes. Corporate actors are now commonly involved in transitional justice (that is, attempts at doing justice in the aftermath of mass violence). However, the literature is still limited by an inclination to treat political economy as context, rather than as a structuring factor intervening both on the war-related or authoritarian violence and on the efforts to make corporate actors accountable. This article proposes three shifts towards a better understanding of the political economy of corporate accountability in TJ: from a focus on the proximate economic causes of war to a genealogical view of pre-war, wartime and post-war economies; towards a more holistic view of conflict financing; and from an emphasis on the political economy of war to the political economy of violence. These shifts allow us to analyse a greater variety of political economies of corporate accountability, address more diffuse responsibilities for violence and injustice, and cover forms of violence that extend over longer periods of time. While holding broader relevance for the field, the arguments are illustrated with reference to the former Yugoslav region and the Bosnian War.

EU’S TRANSITIONAL JUSTICE POLICY, PROGRAMS AND INSTRUMENTS

The article examines the EU’s policy framework, programs and tools on support to transitional justice, and evaluates their impact and challenges. Transitional justice refers to the various ways of addressing the past human rights violations and serious crimes that occurred in contexts of political transition, such as post-conflict or post-authoritarian situations. The EU has adopted a comprehensive policy framework on support to transitional justice in 2015, which defines its principles, objectives, and modalities of engagement with partner countries and international and regional organisations on transitional justice issues. The EU has also used various instruments and actions to support transitional justice initiatives worldwide, such as providing financial assistance, engaging in political dialogue, offering technical expertise, and advocating for transitional justice norms and standards. The article also illustrates how the EU has supported transitional justice processes in different contexts and regions, such as dealing with the legacy of World War II, the fall of communism in Central and Eastern Europe, the war in the former Yugoslavia, and the Arab Spring. The article concludes by identifying some of the achievements and shortcomings of the EU’s involvement in transitional justice processes, such as contributing to accountability, recognition, trust, reconciliation, and non-recurrence; but also facing inconsistency, selectivity, conditionality, interference, cooptation, politicisation, fragmentation, duplication, etc. The article also suggests some ways to improve the EU’s policy framework, programs and tools on support to transitional justice, such as enhancing consistency, coherence, coordination, complementarity, and adaptability. The article also explores how the EU’s role and approaches in the field of transitional justice can affect its own identity and credibility as a global actor that promotes human rights, democracy, and the rule of law as core values of its external action.

Transitional justice mechanisms and processes: international experience for restoring Ukraine’s sovereignty and national security

The mechanisms and processes used in post-conflict countries that contributed to the restoration and ensuring of sustainable peace after the end of armed conflict or active hostilities are analysed. Among the elements of transitional justice, the author identifies those whose implementation is appropriate and possible before the end of the active phase of the conflict in Ukraine: bringing to individual responsibility, recording, documenting and collecting evidence of crimes allegedly committed on the territory of Ukraine (including war crimes, crimes against humanity, genocide and the crime of aggression), cooperation with the International Criminal Court on international crimes, determining the procedure for bringing the top military and political leadership of the russian federation to justice (tribunal); establishing the circumstances of the conflict and recording them, which is especially important in the context of information and psychological operations and other methods of hybrid warfare used by the Russian Federation. With regard to reparations and guarantees of non-recurrence of the conflict, it is already advisable to discuss both issues, develop strategies for compensating Ukraine for losses and act during and after the de-occupation of the territories.
 It has been also noted that the issue of exemption from liability and punishment may be raised during negotiations on the terms of ending the conflict, as well as the issue of mitigation of punishment in case of guilt and cooperation in establishing the truth. In this aspect, the experience of Colombia has been analysed with a reservation regarding the individualisation of the concept of transitional justice, taking into account specific circumstances. In particular, it has been determined that for Ukraine, the experience of transitional justice in Colombia can be taken into account when addressing a number of issues of amnesty, organisation of work of truth commissions and others, with an understanding of the different nature of the conflict in Colombia, which is purely internal (non-international armed conflict).

Ultraleftism to Missary of Commoners: Case of Victims of Sexual Violence During Insurgency

A decade-long armed conflict resulted in the prevalence of survivors of sexual violence in Nepal. The survivors include those who sustained physical and/or mental harm and social distress due to sexual violence or having such family members. The insurgency launched by the then CPN (Maoist) in 1996 was an act of ultra-leftism. The victims of conflict-related sexual violence (CRSV) are being deprived of justice even after a decade and a half without realization of the agreed transitional justice process as per the Comprehension Peace Accord (CPA). Despite the examples of good practices that exist globally, the CRSV survivors in Nepal have not been acknowledged adequately as a crucial facet of the conflict resolution processes neither in any peace dialogue nor in the CPA and peace-building initiatives pursued afterward. Findings concluded that the conflict resolution processes so far do not mean anything to them as they have neither been part of nor benefited from the claimed ‘peace-building initiatives’in Nepal. This article has revealed that the situation is worrying sum as leaving the survivors behind does not simply lead to failure of the conflict resolution process in Nepal. In explaining PMPD Bhandari states that the communist party can resolve any problem with the help of people amidst the political and organizational works without imposing the security forces. Therefore, while illustrating the severity of incidents and concerns of CRSV survivors, the article has drawn the attention of all stakeholders to ensure the effective participation of the CRSV survivors’ and integrate their issues and concerns into peace-building processes.

Considerations on Transitional Justice and the Defense of Human Rights in the Continuum of the Colombian Armed Conflict

Transitional justice according to international standards for the protection of human rights, must satisfy the demands of the victims regarding the rights to truth, justice, reparation, and measures of non-repetition. Nevertheless, as far as the Colombian case is concerned, the persistence of the armed conflict shows a tension between the defense of human rights and the imprecise outcome of the transitional justice process. For this reason, the main advances of the Special Tribunal for Peace are identified, noting among other things that fear and crime factors, as categories of analysis, have legitimized the attack against the "enemy", since the historicity of the armed conflict as a continuum.