Transitional Justice Research Articles

English

The purpose of this study was to assess the effectiveness of transitional justice processes in Zimbabwe using a case of the National Peace and Reconciliation Commission (NPRC). The NPRC is the first Commission constitutionally mandated to implement the transitional justice processes in Zimbabwe. The research employed a qualitative research methodology and a case study design of the NPRC was used. Purposive sampling method was used to identify research participants. Data was collected using key informant interviews and documentary analysis. The research participants were drawn from the NPRC and Non-Governmental Organizations (NGOs). The findings of the study showed that the NPRC was far from meeting its mandate as enshrined in the Constitution of Zimbabwe (2013) and the NPRC Act. The key issues of transitional justice include reparations, prosecutions, and truth telling. The major challenges noted included financial, political, and lack of visibility at grassroots levels.   Key words: National peace and reconciliation commission, transitional justice, peace building, national healing, violence, operation restore order, citizens.

Constitutional Court and The Past Conflicts in Post- Authoritarian Indonesia

The fall of the New Order authoritarian regime in Indonesia was marked by the changing landscape of conflict resolution. In a more democratic setting, “Reformasi” regime has installed democratic institutions including the formation of the Constitutional Court. While the newly established court was celebrated as relatively successful in terms of defending human rights, its role in resolving the abused past is questionable. The new Reformasi regime inherits wounds and scars from the abuse committed by the previous iron fist regime. This paper aims to analyze the Constitutional Court’s roles as a conflict-resolution body in dealing with the past gross violation of human rights in the light of Indonesian transitional justice. In that regards, this paper assesses the Court’s decisions and how far it could answer the victims’ call for justice. This paper found that regardless of the Court’s intentions, the court’s decisions still require further executive or legislative policies. The nature of the court doesn’t bring instant enjoyment for the “winning” party to be benefited from the decisions. In short, the importance for the victims of past abuse of power as stated in the Court’s decisions still has not been translated into justice. At the same time, this also indicates how far the Court is able to resolve this kind of social conflict: “justice delayed, justice denied.” In a more Galtungian’s perspectives, there is a gap between meta-conflict to be deployed into original-conflict. This paper suggests that to overcome such issues, a bridge to reconnect the two should be built. In this context, the changing regime from New Order to Reformasi should be coupled with a holistic approach of transitional justice tools and mechanisms. More importantly, to urge the delivery of justice for those who suffered.

Rethinking Amnesties and the Function of the Domestic Judge

The award of amnesties or pardons has been used time and again to facilitate the attainment of peace after a civil war. However, this practice has been condemned by human rights and other international bodies as incompatible with the duty of states under human rights law to investigate, prosecute and punish human rights violations and the victims’ rights of access to justice and to the truth. Due to this incompatibility, the function of the domestic (constitutional) judge is none other than to strike down amnesty legislation as null and void. This appears to be the prevailing narrative in contemporary human rights discourse. The present contribution takes issue with this narrative. It takes the position that the international effect of regional human rights jurisprudencehas been to condition, as opposed to wholesale outlaw, the use of amnesties as a post-conflict peace-building tool. It defends the view that while blanket amnesties are increasingly considered incompatible with victims’ rights today, that does not mean that all amnesties are prohibited. From this perspective, this article argues that the proper function of domestic constitutional courts in the performance of the constitutionality control of amnesty legislation should take a different shape; instead of querying whether to strike down or to uphold amnesty legislation in its entirety, Constitutional Courts should condition amnesties to criteria – such as their position as part of a broader transitional justice package including truth telling and compensation – and monitor their implementation on a case-by-case basis.

Memory and the social meanings of famine

Famine theory has overlooked the role of memory in constituting the social meaning of famine. This seminal collection of papers restores the cross-disciplinary study of famines, foregrounding social anthropology, history and comparative politics, in the question of how famines are understood by those in the afflicted societies, and how memories and meanings are shaped by social and political context. The collection plays an important role in focussing attention on transitional justice mechanisms for starvation crimes.

Feminist intersectional activism in the Colombian Truth Commission: constructing counter-hegemonic narratives of the armed conflict in the Colombian Caribbean

The article demonstrates the resistances and barriers of transitional justice to address historical intersecting inequalities and suggests avenues to advance transformative agendas in this framework through an examination of efforts to mainstream intersectionality at the Colombian Truth, Peaceful Coexistence and Non-Repetition Commission (CEV). On-going dialogues and collaboration with feminist activists working as CEV researchers in the Caribbean centrally inform this analysis. The article examines these activists’ understanding of intersectionality as a political project and their strategy of operationalising it as a ‘critical praxis’ to construct counter-hegemonic analyses of the armed conflict that centre the experience of historically marginalised sectors. The operationalisation of intersectionality as a critical praxis in this scenario provides insights for public policy and practice more broadly as it proposes guidelines to decolonise research and public engagement methodologies to produce intersectional knowledge of issues that affect differently situated populations and groups.

The struggle of energy communities to enhance energy justice: insights from 113 German cases

BackgroundEnergy communities provide access to energy services, such as affordable clean energy and energy-efficiency measures. Some of these services are of particular benefit for vulnerable households struggling with high energy prices and low incomes. European energy policy stipulates an enabling framework to support energy communities offering such services to all households, explicitly soliciting the inclusion of vulnerable and low-income groups enhancing energy justice and democracy. With transposition still pending in Germany, the question remains as to what extent vulnerable groups benefit in practice.ResultsBased on the data from an online survey among 113 German energy communities, this paper investigates the extent to which energy communities enhance energy justice and democracy in the German energy transition. We have therefore to ask how energy communities reach out to vulnerable groups and describe the hurdles energy communities face. Even though some energy communities successfully reach vulnerable households, we show that the majority struggle to truely reach out to these groups. In the absence of regulatory support for engaging with vulnerable groups and confronted with a competitive energy market, energy communities are focussing on remaining in business. In this context, it should also be mentioned that some energy communities do not reach out to vulnerable groups to offer beneficial services that are of particular interest for the majority of them.ConclusionBased on these findings, we would like to underline the need for enabling regulations to support energy communities’ contribution to justice and democracy. An ‘enabling framework’ demands a clear taxonomy, which distinguishes different organisational and social energy community characteristics to acknowledge their social welfare-enhancing role and avoid misinterpretations and potential misuse.

Compensation Scheme of Former Political Prisoners in Albania, as a Matter of Transitional (in) Justice

The change of the political and legal system in Albania gave birth to the great hope, not only of the triumph of dignity, but also of the correction of injustices towards former political prisoners. In Albania, from 1991 to 2008, a series of legal measures addressed the issue of former political prisoners. Their purpose was not only to legally consider punishment for crimes of a political nature as unjust, but also to award compensation. But, in the span of 17 years they remained a formal statement on paper, an inadequate legal solution that in very few cases became effective. At the beginning of 2008, with the entry into force of the law on the compensation of former political convicts, an administrative compensation process was sanctioned that offered a reasonable solution in terms of time and amount of compensation. However, the subsequent legal changes recognized the right of the state to carry out a compensation process based on budgetary possibilities and did not condition the realization of this process in terms of time. The paper aims to analyze the concept of transitional justice in international and domestic law, highlighting its main instruments, as well as focusing on compensation for former political prisoners in Albania. The work through the analytical and comparative method supports the hypothesis that the compensation of political prisoners designed as an effective tool for correcting the injustice caused during the years of communism is bringing back new injustices, which are incompatible with the principle of the rule of law and human rights. The compensation scheme for political convicts in Albania has created not only legal uncertainty regarding the time of compensation, but also such a duration can lead to inequality and discrimination. The paper recommends the need for immediate legal changes to build a fair, fast and effective compensation mechanism.
 
 Received: 05 May 2022 / Accepted: 16 May 2023 / Published: 20 May 2023

Democracy, Nazi Trials, and Transitional Justice in Germany, 1945–1950

Devin Pendas has written a stimulating study of the question of the relationship between early Nazi trials and the concept of Transitional Justice (TJ). He is less concerned with the extent to which contemporary concepts (TJ emerged in the 1980s) can be applied to historical cases than with verifying or falsifying an existing theoretical concept through historical-empirical research. This is an interesting spin on the topic, as it puts the spotlight on historically grounded studies in a field dominated by political and social scientists looking at current cases. However, this also raises the question of who Pendas’s study is aimed at. He attempts the balancing act of presenting new insights for historians of German history and of Nazi trials, for TJ scholars and for legal historians. The latter come into the picture because Pendas concentrates on a specific aspect of transitional justice: criminal trials, in this case against Nazi perpetrators in the years 1945 to 1950.

The Transitional Justice Process of Nepal: National and International Dimensions

Transitional justice is an evolving discipline for academics and researchers. It is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, to ensure accountability, serve justice and achieve reconciliation. The transitional justice process of Nepal aims to address the humanitarian consequences of the non-international armed conflict that Nepal went through from 1996 to 2006. International law-human rights and humanitarian law-governs the transitional justice process together with domestic laws. The transitional justice process in Nepal is an issue of concern to the international community as well. It is now an element of Nepal’s diplomatic intervention in various platforms and fora. Nepal is struggling to find an appropriate modality of transitional justice. This article has been prepared primarily based on desk research-consulting relevant publications, websites, positions of the stakeholders-and diplomatic representations of the Government of Nepal. It updates the readers on Nepal’s initiative on transitional justice and argues that it falls within the wider scope of Nepal’s foreign policy.

Assessing justice in California’s transition to electric vehicles

Passenger vehicles are an essential form of transportation and contribute significantly to greenhouse gas emissions and criteria air pollution. The health and climate effects associated with their use disproportionately impact low-income communities and people of color. A shift from conventional vehicles to zero-emissionvehicles is essential to meet climate targets and reduce inequities. The transition to clean transportation is an opportunity to uplift underserved and marginalized communities while building a sustainable transportation system. We assess justice in California's transition to electric passenger vehicles by analyzing publicly available data on electric vehicle adoption and rebate use to measure justice in three areas: distribution of electric vehicles, allocation of state incentives, and the social and historical context of redlining. We find electric vehicle adoption and rebate use are lower in low-income and Latino-majority ZIP codes and in formerly redlined neighborhoods, indicating that California's electric vehicle transition has not been just thus far.

The Language of Inclusion: Using Critical Corpus-Based Methods to Study the Presence and Representation of “Women, Children and Vulnerable Groups” in Liberia’s Truth Commission

While inclusion, participation and victim-centredness have become catchwords in transitional justice discourse, this rhetoric has not necessarily enabled the articulation of more complex identities and experiences, or the pursuit of varied justice claims. To probe this disconnect, this article engages with the Truth and Reconciliation Commission of Liberia, a mechanism established to reckon with the country’s history of internal armed conflict, and hailed for its involvement of vulnerable, disenfranchised and oft-overlooked groups. The article combines expressive theories of justice with an innovative corpus-based methodology to critically examine how the Commission made visible, defined and construed these actors through its language of inclusion. Results from word frequency, co-occurrence and sentiment analyses illustrate how the Commission foregrounded the plight and rights of women and children, and their participation as a vehicle for emancipation, but simultaneously reproduced universalist and static identities, fixation on sexual violence and child soldier recruitment, and subject positions lacking in positive or political capabilities. This duality points to inherent tensions in the expressive messaging of TJ institutions, and rather locates the transformative potential of their inclusionary language in the strategic openings it affords for victims’ groups, women and youth organizations in their broader trajectories towards justice and change.

Lustration: A Post-Communist Phenomenon

The phenomenon of transitional justice appears when authoritarian regimes transform into democracies—a topic that has been studied for many years. One main focus has been the question of the responsibility of the former ruling elite and their subordinates, and in particular, criminal responsibility. After the collapse of communism in Europe, secret police informers were perceived as sharing responsibility, alongside the regime’s functionaries. The first steps toward bringing them to justice were taken in March 1990 in Czechoslovakia. The process was called “lustration,” harking back to an ancient tradition of cleansing newborns of evil. In the jargon of the Czechoslovak security apparatus, “lustrace” meant checking an individual’s secret police records. The best known example of lustration took place in Germany, but the basic idea was carried out in all post-communist Central European countries. This kind of transitional justice was not associated with criminal responsibility, and—except in Poland—the courts were not involved in lustration, which was conceived of as a purely administrative procedure. After the collapse of the Soviet Union, only the Baltic states adopted lustration legislation; in other post-Soviet states, such initiatives failed. A similar situation emerged when Yugoslavia disintegrated, where the ethnic wars overshadowed society’s memories of communist wrongdoing. Lustration was unique to post-communist states and was not seen in any other transitional context.

The monstruous and the miscount: a radical theory of accountability

ABSTRACT Can public inquiries and truth commissions provide a space for political transformation? This article investigates the field of transitional justice to address this question, focusing on pessimistic accounts of the persistent failure of truth-telling practices. It identifies three main narratives on why truth commissions fail to promote change, namely the failure of implementation, failure of design and failure by design narratives. This article contends that none of these narratives satisfactorily answer the question raised by this special issue due to their attachment to a referentialist ontology and a linear temporality of truth-seeking. Combining Rancière’s critique of political philosophy with insights from Lacanian psychoanalysis, the article advances a radical theory of accountability capable of circumventing these limitations and elucidating the links between truth-telling and political transformation. Based on an anti-foundationalist approach, this theory sees the work of truth commissions as situated in struggles that constitute the after-maths; the process of counting the parts of a conflict (victims, perpetrators, collaborators) and making suffering count (as violence) by attaching it to an object source (a cause). Seen in a radical light, truth-telling appears trespassed by two organizing principles: the management of monstrosity (as a regime of visibility that formalizes suffering and apportions blame and culpability) and the inevitable miscount of the identities that populate the victim-perpetrators spectrum. The article argues that investigative commissions are doomed to fail, but it is thanks to this failure that they can offer a space for political transformation.

Transitional Justice and Inclusiveness: Where Does Disability Fit In?

ABSTRACT It is striking that the field of transitional justice has thus far given little attention to persons with disabilities. Addressing this significant gap, this article reflects on what a more disability-inclusive transitional justice might look like. It does so by examining two particular dimensions of inclusiveness – accessibility and storytelling. While there are few explicit discussions within transitional justice research about accessibility, storytelling, in contrast, is a prominent theme. What this article specifically accentuates is the need for inclusive storytelling spaces within transitional justice processes and it highlights in this regard the unexplored significance of multi-sensory storytelling.

Egypt after the 2011 uprising: the implications of transitional justice in a non-liberal transition

ABSTRACT Analysing transitional justice mechanisms in the non-liberal transition of post-revolutionary Egypt, from the overthrow of Hosni Mubarak to the election of ‘Abd al-Fattah al-Sisi, this article seeks to enhance the understanding of the character of the transition period and the re-establishment of authoritarianism in Egypt, but also to shed light on the implications of the manipulation of transitional justice in order to bolster repressive structures in non-liberal transitions. Based on analysing transitional justice as a contested process whose mechanism and outcomes are shaped according to specific domestic power structures and coalitions, the article argues that the ability of Egypt’s elites, led by the military, to control the transitional justice process and to manipulate it to enhance their power and interests depended on their coercive capacity but was also a product of their ability to utilise the deep gaps among political forces, which had different interests and perceptions regarding transitional justice (reformative or revolutionary) in order to create shifting alliances and agreements on the boundaries of transitional justice and hence affect its outcomes.

LOVELL FERNANDEZ MEMORIAL LECTURE: THE GLOBAL SHADOW ECONOMY 23 FEBRUARY 2023

Ladies and Gentlemen, dear friends and colleagues, it is a great honour for me to deliver this Lovell D. Fernandez Memorial Lecture. Lovell is alive in our memory. We remember him as an inspired teacher and as a warm-hearted person.He personified the dramatic transition South Africa underwent: Lovell was born and brought up in the times of Apartheid. He had the stamina to survive in a difficult academic environment and he has given a lot to those who were fortunate to be born after Apartheid.From his interest in transitional justice, he turned to economic crime. He realised that corruption and related money laundering were amongst the major challenges for economies in the Global South, including South Africa. I am personally very happy that Lovell invited me to teach at the University of Western Cape. For us (Kathrin and I) this course in South Africa is one of the highlights of the year.

Memory practices ‘from below’: Mnemonic solidarity, intimacy and counter-monuments in the practices of Zoscua, Colombia

This article analyses the memory practices of Corporación Zoscua, a small, grassroots activist group in Colombia representing victims of the armed conflict within the region of Boyacá. After an initial grounding within the broader context of transitional justice and historical memory debates within Colombia, the article focuses on how Zoscua’s practices constitute a form of tactical, vernacular memory-making from below that involves temporary alliances and negotiations in order to make interventions into the mnemonic spaces of the city. Based on a mixed-methods approach that includes semi-structured interviews with participants, as well as textual and paratextual analysis, the article provides an analysis of the conception and construction of their memory wall in the city of Tunja. It highlights first how the choice of location of the wall constitutes a tactical take-over of public space, with grassroots memory being inserted into a conventionally top-down locale that conveys official, state-sponsored national values. Second, the article considers the practices and negotiations involved in designing and building the wall, and, subsequently, focuses on the content of the wall, with particular attention to the collective and collaborative nature of the artwork that, through its imagery, composition and focus on emotions, and contests the high-art values normally associated with monumental practices. The article concludes by suggesting that the distinction between top-down and bottom-up memory initiatives is complicated when examining the mnemonic practices of grassroots memory actors, who make tactical use of alliances to further their aims. As the analysis in this article reveals, bottom-up strategies undertaken by community groups and top-down initiatives promoted by authorities often become entangled or coalesce, evidenced both in the practices and negotiations involved in creating grassroots memorials, and in the resulting materiality of the memorial wall under discussion.

On Deserving Victims and the Undeserving Poor: Exploring the Scope of Distributive Justice in Transitional Justice Theory and Practice

This article explores the relationship between distributive justice and transitional justice in post-conflict societies with challenging socioeconomic demands. It revisits the main philosophical debate on distributive justice in the Anglo-American tradition and traces its reception by academics and practitioners in the fields of development, human rights, and transitional justice. The article shows that transitional justice often sets in motion an opportunity conception of distributive justice that revolves around individual responsibility and deservingness, which entails three negative consequences affecting victims and non-victims alike. First, it justifies an unequal guarantee of their economic and social rights; second, it undermines their self-respect; third, it exhausts public support for victim-oriented policies. In so doing, this article distances itself from the existing consensus that transitional justice and distributive justice are different spheres of justice and argues that it is necessary to develop theoretical frameworks that recognize their intimate connection to overcome the pitfalls identified.

Policing the Mexican Past: Transitional Justice in a Post-authoritarian Regime

Policing the Mexican Past: Transitional Justice in a Post-authoritarian Regime

Amnesty in Brazil: Recompense after Repression, 1895–2010

After 15 years of dictatorship, the Brazilian military leaders issued Law No. 6683, an amnesty law that started a slow process of democratic transition in the country. The law granted an official pardon to individuals accused of political crimes and to those who had their political rights suspended between September 1961 and August 1979. Ann Schneider's Amnesty in Brazil: Recompense after Repression, 1895–2010 examines this amnesty law, contextualizing it as part of a long history of amnesty laws in Brazil. Schneider shows that to understand how Law No. 6683 was interpreted and contested after the 1980s, we need to study the history of how Brazilian politicians, lawyers, writers, and other members of civil society developed a tradition of demanding and creating amnesty policies to resolve conflicts and crises since the First Republic—in 1891, when the first amnesty decree was issued. She demonstrates that throughout the twentieth century amnesty became an “institution to secure rights” in Brazil (p. 24).Schneider shows that the Brazilian state resorted to amnesty laws since the First Republic as a political solution to reconcile civil and human rights violations and that the first one, enacted by President Prudente de Morais, set a precedent for the use of amnesty in Brazil. Throughout the twentieth century, politicians and activists deployed the arguments that jurist Rui Barbosa first drafted in 1895 as a key part to settling civil and political conflicts. Amnesty became a government tool to both secure peace and turn toward new political regimes in Brazil.One of the book's main contributions is to illustrate that while amnesty laws and decrees of the post-1979 era in various countries often granted amnesty to the perpetrators of human rights violations, shielding them from accountability, in Brazil they also provided mechanisms for possible restitution to victims. Chapter 8 shows that because perpetrators were amnestied, the families of disappeared members of the Araguaia guerrilla movement never got justice. One example that the author discusses is the case of Major Curió, accused of the aggravated kidnapping of five guerrillas who were last seen in 1974. The judge assigned to his case rejected the complaint against him, suggesting that it would not be in the public's interest to rule against the amnesty law. Nonetheless, Schneider shows that while the law worked for state agents, it also benefited victims of the dictatorship. In 2001, for example, the Brazilian state created an amnesty commission that formally acknowledged state repression and offered monetary restitution and an official apology to the victims of the 1964–85 dictatorship. With this, amnesty in Brazil became associated not only with the pardoning of crimes and accusations but also with reparation and compensation. Schneider examines how amnesty laws in the late twentieth and early twentieth-first centuries came to incorporate the civil justice principle that quem causa dano repara (the one who harms must repair).In addition to discussing the amnesty laws, this book examines the crises and conflicts that led to their creation—over public health, racial relations, and class difference. One of the many valuable aspects of Schneider's analysis is the focus on the perspectives of victims—such as João Cândido, a Black sailor who rebelled against the navy's punitive methods, and Victória Grabois, whose husband, father, and brother, members of the Araguaia movement, disappeared during the 1970s. Schneider differentiates the anistiados (amnestied) from the anistiandos (those in the process of seeking amnesty). One important consequence of highlighting this difference is to show that the history of amnesty is ongoing. Those who got amnesty only considered themselves amnestied after they received reparations for the violence that the state subjected them to. Those who did not continued fighting for restitutions.While claiming amnesty became associated with restitution in Brazil, Schneider understands the limits of this legal framework. She disagrees with the idea that amnesty was triumphal or that it ended in the recognition and restitution of all rights in Brazil. Yet her argument that these laws and decrees represented an important legal basis for how people framed their access to rights is still valid and important. She provides a careful examination on the multiple groups who participated in the processes leading to the creation and application of amnesty laws. Even though amnesty did not benefit all groups who claimed to have a right to it, the groups who demanded amnesty influenced a tradition in which these laws were created and used this legal framework to their advantage. Schneider's analysis, therefore, provides a novel perspective for understanding how different groups in Brazil negotiated their rights in the public sphere.Lastly, Schneider's writing is accessible, and her narrative style is easy to follow. All students interested in human rights and transitional justice across disciplines will benefit from reading this well-researched and carefully organized book.