Transitional Justice Scholarship Research Articles

Examining victims and perpetrators in post-conflict Nepal

The transitional justice (TJ) agenda in Nepal has been largely circumscribed by TJ experts, brokers and implementers. While participation provides avenues for victims, among others, to be involved in TJ processes, many actors, including victims, will engage in participatory activities according to their own interests. Yet, we must ask, who are considered victims? Who determines whether someone is a victim and what implications, if any, does this determination have and what do victims want? This article examines the ‘victim’ label in Nepal. I argue that victimhood is often connected with state support. I also argue that the way TJ scholars and practitioners identify victims, based on the harm caused, does not always align with the way community members perceive victimhood, which is often based on suffering.

Exploring Variation In Diasporas’ Engagement With Transitional Justice Processes

Despite the fact that displacement is often a result of civil war and government repression, diasporas have received comparatively little attention from transitional justice scholars. In particular...

Adopting a Resistance Lens

Drawing from the critical scholarship on transitional justice and from studies of resistance, this article brings together different observations of resistance, including different sets of actors, forms and motives of resistance, and analyzes their implications for power and legitimacy in contexts of transition. The article argues that the analytical value of resistance lies in the original vantage point it provides for an engagement with questions of power and legitimacy that inform transitional justice processes, but that are often difficult to identify on an empirical level. In doing so, it proposes a “resistance lens,” that is, an explicit focus on resistance that is based on a relational understanding to resistance, in order to move beyond simplistic conceptions of resistance in transitional justice scholarship that mainly approach resistance as resulting from a lack of political will of the powerful elite to implement supposedly universal transitional justice models.

The use of transitology in the field of transitional justice: a critique of the literature on the 'third wave' of democratisation

<p>This article analyses the role and the limits of transitology in framing transitional justice studies after the collapse of dictatorial regimes in Southern Europe, Latin America and Eastern Europe. It examines the evolution of the scholarship with reference to three main topics that have been pioneered by transitologists and developed further by transitional justice scholars, namely: the connections between justice for past abuses and democratisation; the determinants of transitional justice; and the relationship between accountability and the passage of time. The article argues that while transitology has nurtured important research initiatives in the field of transitional justice, its approaches suffer from serious shortcomings. They remained overly prescriptive and short-term in focus, and they often dehistoricised social phenomena. Adopting a teleological perspective on transitions supposedly bound for democracy, they overlooked comparisons and interconnections between transitional justice processes originating in democratic contexts and those arising from dictatorial settings. Moreover, in their attempt to build general typologies and establish causalities between types of dictatorial regimes, exit modes from authoritarianism and justice mechanisms, transitological approaches often failed to explain the peculiarities of national cases, and likewise paid scant attention to international contexts and transnational interactions.</p>

‘Complex Political Victims’ in the Aftermath of Mass Atrocity: Reflections on the Khmer Rouge Tribunal in Cambodia

Reflecting on the case study of the Extraordinary Chambers in the Courts of Cambodia (ECCC), this article asks how transitional justice (TJ) processes account for the complexity of victimhood in political violence and mass atrocity. It speaks to the critical scholarship which questions the use of simplistic dichotomies of (innocent) victims versus (guilty) perpetrators in TJ processes. Findings from empirical, qualitative fieldwork conducted in 2013 and 2014 show that both inclusion and exclusion dynamics towards complex political victims take place at the ECCC. Whilst most critical scholarship questions the exclusion of complex political victims from TJ processes, this article highlights the limitations and challenges of both the inclusion and the exclusion of such victims. It argues that the complexity of victimhood in contexts of mass atrocity poses vexing questions to TJ scholars and practitioners that have yet to be addressed.

Judges, Conflict, and the Past

Drawing upon interviews with senior judicial figures in Northern Ireland, South Africa and elsewhere, this article considers the role of the judiciary in a political conflict. Using the socio-legal literature on judicial performance and audience as well as transitional justice scholarship, the article argues that judges in Northern Ireland ‘performed’ to a number of ‘imagined’ audiences including Parliament, ‘the public', and their judicial peers – all of which shaped their view of the judicial role. In light of ongoing efforts to deal with the past in the jurisdiction, and the experiences of other transitional societies, the article argues that the judiciary can and should engage in a mature, reflexive and, where appropriate, self-critical examination of the good and bad of their own institutional history during the conflict. It also argues that such a review of judicial performance requires an external audience in order to encourage the judiciary to see truth beyond the limits of legalism.

Writing Transitional Justice: An Empirical Evaluation of Transitional Justice Scholarship in Academic Journals

This article examines transitional justice scholarship published in academic periodicals over a six-year period, 2003–2008, to identify the disciplines that contributed to the literature and the nature of scholarly questions they posed during a period of burgeoning scholarship. The article is the first to identify empirically which disciplines contributed to the scholarship and which were most influential among the social sciences and humanities. Law, political science, and sociology are the disciplines that dominated the field as reflected in academic journals. The most influential transitional justice articles in the social sciences and law suggested that readers were drawn to scholarly treatments that theorized the field or were analytical in nature. Scholars were wrestling with basic questions with regard to what transitional justice is and how it works. This historical perspective establishes a baseline from which to examine ongoing and future research and writing in transitional justice.

One truth among others? Truth commissions’ struggle for truth and memory

Most truth commissions combine human rights investigation with a historical narrative explaining the causes and patterns of violence and violations. However, their historiographical function has been generally overlooked in transitional justice scholarship, as well as in history and memory studies. This article presents an analytical framework to situate truth commission narratives in the broader context of struggles for social memory. I argue that the historical context chapters in commissions’ final reports reflect the explanatory schemes and memory tropes circulating in wider society, but they also often transform the terms of the societal debate. Commissions negotiate the tension between their authoritative status over historical truth and the need to persuade those who question their truthfulness and legitimacy. Toward that end, they adopt various narrative strategies ( adjudication, avoidance, giving voice, and transformation). Finally, while it should be acknowledged that the strategic interventions and silences of commissions have ruled out many alternative memories (and along with them, visions of future), it is wrong to reduce commission narratives to politically usable reconstructions of the past, as they have often surprised and upset political leaders through their findings, historical explanations, and recommendations.

A Feminist (Legal) Analysis of the Interface between Refugee Law and the Mandates of Truth and Reconciliation Commissions

Forced displacement both within and across borders is a common consequence of conflict. However, only a few Truth and Reconciliation Commissions (TRCs) have had a specific mandate to investigate forced displacement. Accordingly, the examination of forced displacement by TRCs is a new issue in transitional justice scholarship. Predominant within this burgeoning literature are feminist examinations of the ways in which TRCs represent women’s experiences of forced displacement. One of the claims put forward is that TRCs provide a truncated and stereotyped picture of the causes and consequences of women’s displacement. What is, however, missing in this literature is an assessment of how TRC mandates and their interpretation have given rise to this gender blindness and gender stereotyping. Therefore, this chapter investigates the unexplored issue of how the framing and interpretation of TRC mandates impact upon representations of women’s experiences of forced displacement. It will do this by comparing the ways in which gender has been considered in the Liberian and Sierra Leonean TRCs with the ways in which it has been addressed in refugee law. The purpose of the comparison is to highlight the potential for a dialogue between these two fields and that such cross-pollination can provide pathways for addressing the gender bias of both refugee law and TRCs.

Transitional Justice in Burma/Myanmar: Crossnational Patterns and Domestic Context

Since 2010, Burma/Myanmar has significantly liberalised. In this context, questions over if and how to address the country’s legacy of repression and armed conflict have received attention both domestically and internationally. This article draws upon interdisciplinary comparative transitional justice scholarship, both quantitative and qualitative, to better understand the prospects for transitional justice in the Myanmar context. It finds that while human rights trials are highly unlikely to take place in Burma, an official truth commission alongside the military’s 2008 self-amnesty is more realistic. The article then situates Myanmar within scholarship that compares truth commissions cross-nationally to determine likely outcomes for this course of action. Current scholarship suggests that a truth commission in contemporary Burma would at minimum be unlikely to undermine human rights and at maximum could make modest but significant contributions to stability and human rights.

Transitional Justice in Burma/Myanmar: Crossnational Patterns and Domestic Context

Since 2010, Burma/Myanmar has significantly liberalised. In this context, questions over if and how to address the country's legacy of repression and armed conflict have received attention both domestically and internationally. This article draws upon interdisciplinary comparative transitional justice scholarship, both quantitative and qualitative, to better understand the prospects for transitional justice in the Myanmar context. It finds that while human rights trials are highly unlikely to take place in Burma, an official truth commission alongside the military's 2008 self-amnesty is more realistic. The article then situates Myanmar within scholarship that compares truth commissions cross-nationally to determine likely outcomes for this course of action. Current scholarship suggests that a truth commission in contemporary Burma would at minimum be unlikely to undermine human rights and at maximum could make modest but significant contributions to stability and human rights.

Feminist scholarship in transitional justice: a de-politicising impulse?

Synopsis Gender and transitional justice is increasingly recognizable as a field of study in its own right. This essay identifies feminist scholarly priorities in transitional justice as, firstly, the inclusion of harms against women within the mandates of transitional justice mechanisms; secondly, the recognition of structural gender inequalities that makes women particularly vulnerable to these gender-specific harms; and finally, the participation of women in transitional justice processes and mechanisms. The essay recognises the important benefits of the coalescence of a feminist scholarly agenda in transitional justice, most notably the development of a relevant body of expertise, the ability to learn across transitional justice processes, and the growing policy traction of these scholarly priorities. The essay raises the question, however, as to whether there is a de-politicising impulse in feminist transitional justice scholarship, evidenced by a sustained reluctance to engage with the broader political dynamics that drive transitional justice in particular contexts.

Don't Mention the War: TheCourt ofAppeal, theCriminalCasesReviewCommission and Dealing with the Past inNorthernIreland

Despite the vast transitional justice scholarship relating to prisoner release, amnesties and prosecutions when conflicts end, there is a significant gap in practice and academic literature regarding wrongful convictions. Uniquely amongst post‐conflict societies,NorthernIreland has a body for investigating miscarriages of justice, albeit one designed for ‘ordinary’ appeals. In the absence of a formal truth‐recovery process, criminal appeals are becoming a proxy for addressing the role of the state during ‘TheTroubles,’ as well as remedying individual injustices. This article examines the approach of theNorthernIrelandCourt ofAppeal during the conflict. It charts the developments in its decision‐making following the cease‐fires and the establishment of theCriminalCasesReviewCommission. It concludes that the current system is unsatisfactory as it ignores the effects of the conflict on the appeal process and offers no insights into the role of theCourt during the conflict. Alternative models are suggested.

Editorial Note: From the Neocolonial 'Transitional' to Indigenous Formations of Justice

It may seem odd that I am responding to the honor of the editors’ invitation to write this editorial note by questioning the premise of the current conception of the field of ‘transitional justice’ itself. The implied assumption of this field, it seems to me, is that the ‘developing’ society under examination is in transition from the state of being A, which we know, to becoming B, which we can predict. The precise question or theme of the study may vary, but the underlying inquiry seems to be whether that society can still maintain an acceptable level of what we, the ‘international community,’ recognize as justice during transition. I am not saying that this is true of every scholar or social actor in the field, but the explicit or implicit purpose of those whose work is informed by this conception of transitional justice seems to be as follows: Let us promote an intermediate level or degree of ‘justice,’ as we know or accept it to be, until the situation is ready for the next phase toward the ultimate goal of fulfillment of our vision of justice as it should be practiced everywhere in the world. Another possible purpose of scholars or social actors is to promote an ‘appropriate’ conception of justice for issues that are particular to ‘transition,’ such as finding an acceptable compromise on accountability for atrocities committed during a conflict in order to facilitate the process of ‘peacebuilding.’ In these or other similar scenarios, preference is given to a standard of justice that is mandated by the international community over indigenous or ‘traditional’ practices that are unacceptable because they are inconsistent with ‘universal’ human rights norms, as proclaimed by the international community. It seems to me that this external mandate is so much the presumed standard that even the possibility of an indigenous alternative conception of justice is not taken seriously at a theoretical or empirical level. If or to the extent that what I am saying is true, transitional justice scholarship and strategies are neocolonial because they view indigenous conceptions of justice as a distraction from the grand ‘modernizing’ mission of North Atlantic societies, 1 in the guise of the so-called ‘international community’ this time. I am using

Transitional Justice: A Colonizing Field?

Throughout its development, the transitional justice scholarship has favored the use and implementation of specific judicial institutions, including courts and tribunals, to carry out justice and hold individuals accountable in the aftermath of mass violations of human rights. These institutions, I argue, are rooted in a neo-liberal framework that sanctions the rule of law and a certain understanding the nature of law and justice. The transitional justice literature is informed by certain assumptions about the ‘goodness’ and ‘neutrality’ of the rule of law, which it blindly exports. I contend that the unquestioned promotion of the rule of law at the international level is concerning vis-a-vis the feasibility and applicability of the judicial arrangements that are transplanted to a variety of contexts. The universalizing tendency of the legalist paradigm that underlies the transitional justice scholarship and practitioners dictates the kinds of activities that are undertaken in transitional societies.

PEREINAMOJO LAIKOTARPIO TEISINGUMO STUDIJOS: IŠTAKOS IR RAIDA

Šiame straipsnyje analizuojama pereinamojo laikotarpio teisingumo studijų būklė, įvertinami atlikti tyrimai, aptariama jų raida, kartu pateikiant atsakymus į kelis probleminius klausimus. Pirmiausia, kas lėmė vyraujančias tyrimų kryptis. Antra, kokios yra esminės šio studijų lauko teorinės bei metodologinės problemos. Trečia, kokių duomenų ir kokio pobūdžio tyrimų šioje srityje vis dar trūksta. Ši analizė grindžiama prielaida, kad tokio pobūdžio akademinė savirefleksija naudinga ne tik patiems pereinamojo laikotarpio teisingumo tyrėjams, bet ir pereinamojo laikotarpio teisingumo strategijas įgyvendinantiems nacionaliniams ar tarptautiniams veikėjams.

Justice and Transition in Mississippi: Opening the Books on the American South

Mississippi's contemporary revisiting of racial violence that marred the state's transition from a white supremacist political order, colloquially known as Jim Crow, to a post-Jim Crow polity constitutes a valuable case study for transitional justice scholarship and practice. It is within the context of an often overlooked yet violently contested transition that transitional justice discourses have increasingly permeated debates on how, and even whether or not, to confront Mississippi's violent past. Mississippi's recent attempts to confront past abuses through criminal prosecutions and non-state community-based initiatives provides an important insight into the limits of criminal prosecutions and a growing turn towards the establishment of a truth commission to confront past human rights abuses perpetrated within the state.

Transitional Justice and the Rule of Law: The Perfect Couple or Awkward Bedfellows?

The dominant scholarly assumptions are that transitional justice is a pre-condition for establishing a rule of law-based society after conflict or repression, and that transitional justice and the rule of law are mutually-reinforcing phenomena. Though the imperfect conditions of transition invariably give rise to difficult dilemmas over justice with imperfect solutions, literature in the field has downplayed or ignored the long-term impact on the administration of justice in the transitional state of the tendency of transitional responses to past human rights abuses to readily depart from the core values we associate with the rule of law. As noted in Teitel’s study of the rule of law’s relationship to transitional justice, this tendency is manifest where criminal accountability is suspended so as not to imperil the transition or where due process is circumvented in the idealistic and over-zealous pursuit of idealized transitional dividends through trial, truth commission and reparation. As transitional justice scholarship moves from moralphilosophical and jurisprudential preoccupations to greater empirical and interdisciplinary analysis, the sweeping normative assumptions of the past are increasingly being questioned. The article argues that though such acts or omissions may be excused by the exigencies of transition and contribute to the development of the conditions where the rule of law can prosper, liberalizing societies are better served by understanding these deviations from what we understand as full legality as deviations and not as manifestations of a fluid and contingent transitional rule of law.

Reconciliation(s): Transitional Justice in Postconflict Societies, ed. Joanna R. Quinn. Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, ed. Luc Huyse and Mark Salter

In recent years, the focus of transitional justice scholarship has started to shift from institutions and processes towards questions of outcomes and impact. Early discussions in this field centred on concepts such as truth and justice, which were often treated as ends in themselves. In reality, however, those concepts were usually means to other ends, for example, pursuing truth and justice because they might, variously, deter future crimes, eradicate the culture of impunity, counter historical denial or help rebuild fractured individual and communal relations. Reconciliation(s): Transitional Justice in Postconflict Societies , edited by Joanna Quinn, and Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences , edited by Luc Huyse and Mark Salter, continue this current interest in the ultimate aims of transitional justice. In particular, they focus on two such objectives: healing and reconciliation. The two books share some important premises and methods and formulate some similar arguments. A core idea in both volumes is that, in considering how best to address conflict and postconflict situations, there are no available templates or one-size-fits-all approaches. There may be some general principles derived from international experiences, but locality and nuance are everything. This starting point leads both books to explore the role of local, ‘traditional’ or customary justice in transitional settings; Traditional Justice and Reconciliation focuses exclusively on this theme, while Reconciliation(s) devotes four of 13 chapters to it.

International Prosecutions and Domestic Politics: The Use of Truth Commissions as Compromise Justice in Serbia and Croatia

Since the end of the Cold War, increased efforts at international criminal justice have begun to transform transitional justice for the worst cases of atrocities from a predominantly domestic affair to an international one. I examine side-effects of international pressure for criminal justice, arguing that political elites struggling to balance conflicting international and domestic demands may launch “compromise justice” policies designed to satisfy both, but which in effect weaken mechanisms that transitional justice scholars posit make postconflict reconciliation most likely. I apply this argument to the former Yugoslavia, examining Serbian and Croatian truth commissions as a form of “compromise justice.”