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Transitional Justice

Once violent conflict between two groups has subsided, what is the best way to transition to a civil society? Do former enemies need to “come to terms with their past” if they are to live peacefully? If such a reckoning is required, what are the strategies of transition available to the parties?

The field of transitional justice, which investigates such questions, involves the philosophical, legal, and political investigation of the aftermath of war. This entry will provide an introduction to the central problems animating this relatively new field. It will do so by examining the history and difficulties associated with the operation of three important transitional policies: war crime tribunals, truth commissions, and lustration policies. [ 1 ] We will consider, among others questions, tensions between the desire for peace and stability after war and the importance of putting human rights violators on trial, the need, as part of a political transition, to create a reliable historical record of past abuses, the promise and limitations of international criminal law, and the coherence of forgiveness in politics.

Part 1 provides a theoretical introduction to the nature of transitional justice by highlighting the tensions between peace and justice typical of transitional settings. Part 2 examines the difficulties associated with war crime tribunals. Part 3 concentrates on the dilemmas involved in the operation of truth commissions. Part 4 focuses on administrative purges or lustration policies. The final section considers the possibility of forgetting as a response to mass atrocity. [ 2 ]

1.1 The Contradictions of Transitional Justice

1.2 peace versus justice, 2.1 historical background, 2.2.1 victor's justice, 2.2.2 retroactivity, 2.2.3 selectivity, 3.1 historical background, 3.2.1 deliberative democracy, 3.2.2 justice as recognition, 3.2.3 more truth, 3.2.4 forgiveness, 4.1 historical background, 4.2 criticisms of lustration, 5. forgetting, other internet resources, related entries, 1. introduction to transitional justice.

The term “Transitional Justice” has come, in recent years, to designate a field of academic inquiry, as well as political practice, concerned with the aftermath of conflict and large-scale human rights abuses. Theorists and practitioners of transitional justice focus on the most effective and legitimate ways of addressing past wrongs and moving towards the (re)establishment of a decent civil order. In this introduction, I describe the political and moral goals officials tend to pursue in transitional settings and map out some of the tensions between these goals. I argue that such strains are the result of an endemic friction between the demands of stability and justice after war (the introduction draws on Eisikovits 2013).

In making the transition from a violent past into settled, legitimate governance, officials typically pursue multiple goals. While some of these are mutually reinforcing, others come into conflict with each other. As a result it is difficult to fully pursue all transitional goals at the same time. In what follows I describe the most important transitional goals and elaborate about the relationships between them.

• Creating a reliable record of past human rights abuses . Such a record is obviously important, for its own sake, as part of the very human project of keeping our history as accurately as possible. [ 3 ] It is also helpful in rebuffing spurious revisionist claims (thus, for example, the record created by the Nuremberg trials has been helpful in rejecting the claims of various Holocaust deniers) and, more broadly, in ending the displays of impunity so typical of authoritarian governments. Once such a record is established it becomes impossible for those who colluded with an oppressive regime to deny responsibility and involvement in past crimes. [ 4 ] Perhaps most importantly, the creation of an accurate, comprehensive, and public historical record matters for the psychological healing of victims who report, time and again, benefitting from official and public acknowledgement of their suffering (see, e.g., Minow 2000).
• Setting up a functional, professional bureaucracy and civil service , to efficiently serve the needs of the population. As with the cementing of the rule of law, part of the idea is to establish (or reestablish) citizens' trust in their government; once basic services are rendered in a reliable, non-arbitrary, fashion ordinary citizens may gain (or regain) the belief that government's job is to serve rather than oppress them.
• Helping victims restructure and repair their lives , by attending to their physical and psychological afflictions, restituting lost property, compensating them for their losses, and fixing historical injustices that systematically disadvantaged them. Needless to say, this project overlaps with the second and third goals; after all, to address the psychological distress of victims it is helpful to punish those who hurt them and to provide respectful forums in which the stories of such victims can be heard.
• Stopping violence and consolidating stability , so as to allow the creation of a normal civic and commercial life, cement trust in government, and draw outside investments.

While all of these goals are politically important, it is easy to see how they can come into conflict. Prosecuting the guilty can harm political stability, as the prosecuted and their (often armed) followers become resentful about what they perceive as a politically motivated witch-hunt. Post-war prosecutions may also come into conflict with the need to cement the rule of law, as such prosecutions often require departures from the rules of procedural justice. Such was the case with the retroactive criminalization that lay at the heart of the Nuremberg Trials. The doctrine of “Command Responsibility” first developed at Nuremberg and used later by the International Criminal Tribunal for Yugoslavia also departs from basic principles of legalism, by basing convictions on the status of defendants rather than on direct and specific evidence concerning their actions (on this, see Drumbl 2005).

Even when prosecutions do not threaten political stability and manage to stay true to the principles of the rule of law, they can still come into conflict with the desire to create a robust, comprehensive historical record. When trials are used as the primary mechanism of transitional justice, their very subjection to the rules of evidence means that some important information (namely testimony that does not pertain to specific indictments, or evidence obtained without full due process etc.) will be excluded from the record. This limitation has prompted some scholars to argue that truth commissions are preferable to war crime trials in this respect: since such commissions are not subject to the rules of evidence, they are able to collect more information, expose a more comprehensive picture of past injustices and to include a greater emphasis on the role of institutional and commercial actors indirectly involved in supporting injustices. [ 5 ]

The need to provide victims with meaningful, respectful public forums in which they can tell their stories and receive a degree of acknowledgment, central to the fifth aim, also comes into conflict with some of the basic commitments of legalism. Criminal trials usually focus on the interests of the defendants. A respectable criminal trial cannot be a platform for victims to tell their stories in an uninterrupted fashion. Since the testimony of victims is instrumental for proving indictments, it is most often subject to interruptions and vigorous cross-examination. As a result, a typical criminal procedure can be quite an adversarial experience for victims. This is true in spite of a recent expansion of the role of victims in international criminal law. In fact, an undue expansion of that role creates the grounds for criticizing international criminal law for abandoning some of its legalist underpinnings (see, for example, Rauschenbach and Scalia 2008).

Finally, the need to set up a functioning bureaucracy, so important for the creation of public trust and the restoration of political normalcy, can clash with the desire for accountability inherent in the first two goals. When most officials implicated in past crimes are purged or “lustrated”, few competent administrators remain to do the work of government. Such a competence gap may, in turn, undermine political stability, economic viability, and public trust—all crucial factors in a successful transition. Indeed, worries about the tradeoff between accountability and the functionality of government have led many polities to either hedge or give up their lustration policies mid-stream. [ 6 ]

Almost every transition since World War II displays these tensions. The Nuremberg trials, often viewed as the pinnacle of legalism, were, nevertheless, based on ex post facto charges (see Bass 2002: Ch. 5). The Spanish transition to democracy was so fragile that it had to commit itself to a “pact of forgetting”—more than three decades of silence about abuses committed during the civil war and under Franco. Historical justice and the need to preserve the peace came into conflict, with the latter receiving precedence until the 2008 Law of Historical Memory reversed the trend (see Tremlett 2006). In South Africa, de Klerk's National Party threatened civil war if the African National Congress insisted on war crime trials against apartheid officials. The celebrated Truth and Reconciliation Commission, with its amnesty-for-truth arrangement, was the resulting political compromise meant to avoid both punishment and impunity. The ANC's demand for retributive justice went unheeded (to the outrage of many, including the family of Stephen Biko, who unsuccessfully sued the Truth Commission in the South African Constitutional Court) because heeding it would have eliminated the chance for a democratic South Africa (for an overview see Meredith 1999). The International Criminal Tribunal for Rwanda, operating in Tanzania, netted some of the Genocide's ringleaders. But Rwanda was not able to apply rigorous criminal responsibility to all those who participated in the murders. Doing so would have taken several centuries. Thus a system of traditional justice, Gacaca , was devised. These makeshift “Grass Courts” failed to live up to western standards of legalism (the judges were not professionals, rules of evidence were not followed) and it failed to produce satisfying punishments. But it did provide a platform from which at least some of the crimes were admitted and acknowledged, and it did manage to empty the Rwandan jails which contained hundred of thousands of prisoners. In the tension between practical functionality and retributive justice, Rwanda nodded to the latter, but eventually focused on the former. The policy of de-Baathification carried out negligently in the aftermath of the second Gulf War, combined with the thoughtless disbanding of the Iraqi army ended up fueling the anti-American insurgency there, in addition to draining Iraq of many of those who had crucial administrate skills and experience. Here too, the commitment to retribution and the desire to create trust by “cleaning out” those associated with the previous regime actually ended up bringing about the opposite effects by further destabilizing the country and harming its bureaucratic competence at a very sensitive time (see Pfiffner 2010).

Post war transitions are characterized by the co-existence of potentially conflicting, yet politically and morally important, goals. As we have seen, some of these are about doing justice for past abuses, while others are concerned with consolidating stability and creating functioning, competent institutions. The uneasy co-existence of these aims - the fact that they are all dearly held, and yet cannot quite be fully realized together—points to a significant tension between considerations of justice and social utility after war. Needless to say, this tension exists in ordinary political life as well. The friction between what is morally called for and the way in which leaders must sometimes act for the overall benefit of their subjects has always been important to our understanding of politics. Machiavelli articulates it most famously when he argues that a Prince might have to learn how “not to be good” in order to act in the best interest of his polity (Machiavelli, The Prince , Ch. 15). Sartre provides the dramatic depiction and gives the problem its most familiar name in his play Dirty Hands. One of his protagonists puts it starkly: “Well, I have dirty hands. Right up to the elbows. I've plunged them in filth and blood. But what do you hope? Do you think you can govern innocently?” (Sartre, “Dirty Hands,” Act V). The most important contemporary philosophical treatment appears, of course, in Michael Walzer's famous article “Political Action: The Problem of Dirty Hands” (Walzer 1973). In transitional contexts this tension is usually labeled the “peace versus justice” dilemma (see, for example, Freeman 2010 and Mihai 2010)—denoting that the demands of quiet and stability may well require compromising the morally important demands of retributive justice and accountability. Thus, for example, it was wrong to allow apartheid murderers to get away with murder during South Africa's transition. But if they had been tried as war criminals, South Africa would have most likely erupted into civil war. Similarly, it was wrong to bury Spain's history of violence for more than thirty years after the end of Franco's dictatorship. But, had this history been excavated earlier, Spain may well have failed to develop into the liberal democracy it is today.

Viewing the peace vs. justice dilemma as a variation of the problem of dirty hands helps us better understand the nature of the tensions at play after war. Properly described, peace vs. justice is not a debate between proponents of a Kantian commitment to full retributive justice and cynical realists who are willing, in the infamous words of the Cambodian Prime Minister Hun Sen, to “dig a hole and bury the past” (quoted in Mydans 2010). Rather, the tension is more properly viewed, like the problem of dirty hands, as a paradox: officials as well as citizens in transitional countries concurrently hold two powerful yet often contradictory moral intuitions: that in order to establish a legitimate, functioning civil society one must do justice for the crimes of the past and that to secure quiet, stability and a functioning government it is sometimes necessary and morally acceptable to leave past crimes and past criminals alone. An analogy to another such paradox may be helpful in illustrating the difference between a paradox and a debate. The problem of moral luck famously delineated by Thomas Nagel and Bernard Williams denotes a paradox about how we make judgments about praise and blame: we tend to think that people should be praised or blamed only on the basis of what they can control, and yet we regularly praise and blame people on the basis of the results of their actions—even if these are beyond the control of the agents involved (Nagel 1979 and Williams 1981). A drunk driver who got home safely and a drunk driver who hit a child on the way home took the same risk getting into their cars. The first intuition would require treating them similarly. The second recommends more severe punishment to the driver actually involved in an accident.

A moral debate can, in principle, be settled by a superior set of arguments. A paradox can only be described. Caught in the paradox between peace and justice we might end up emphasizing one kind of intuition over the other after war. But this is not the same as winning a moral argument and doing away with a discredited position. The Spaniards emphasized the need for stability over the need for accountability for a period of thirty years. Then, when they were confident enough that stability had been consolidated, they shifted their emphasis. The Rwandans, after conducting nominal criminal trials in Tanzania, made a similar decision and cleared the dockets by means of their Gacaca courts. Rwanda is now more quiet and stable. But such quiet, as commentators like Philip Gourevitch have noted (see, most recently, Gourevitch 2009), is an uneasy one as long as survivors are resentful about failure to bring perpetrators to justice. Stated differently, there is no real “debate” between peace and justice after war, as some scholars and NGOs claim, only a continuing negotiation that, at any given point, will lean towards one of these intuitions. The best we can do is understand their co-equal status, settle on a policy that lies on the continuum between them, and constantly reevaluate.

In spite of the fact that the peace versus justice tension is merely a specific manifestation of the problem of dirty hands, there is an important distinction that must be observed: while the tension between justice and social utility is part of the political life of any consolidated democracy, it is central and definitive of political life during transitions. In consolidated democracies, such tensions can be alleviated by legal institutions and traditions that embody conclusions about how to manage the requisite tradeoffs between justice and social utility (these include a constitution, a body of accepted constitutional jurisprudence, a respected high court with powers of judicial review, etc.). Part of the role of such institutions and traditions is to provide guidance about which tradeoffs would seem most justifiable given a comprehensive interpretation of the state's legal and political history. But transitional times are exactly the periods in which such institutions, traditions, and interpretive principles are first being set out. When the argument arose about abuses of executive power in the Unites States following the September 11, 2001 attacks, that debate could take place on the background of a history of executive power grabs and the responses to them (Jefferson's requisitioning of funds for the military without congressional approval and Lincoln's suspension of habeas corpus during the civil war come to mind). In a transitional context, that long and important political discussion is missing. More precisely, the very point of the transitional period is to set up the institutions and methods responsible for having that debate. The upshot of this predicament is two fold: it is harder for transitional societies to resolve peace versus justice decisions because the traditions and institutions so important for navigating these questions are not yet present. At the same time, the very act of creating of such institutions inevitably creates situations where peace and justice must clash: the need to quickly set up a competent court and police systems to allow for stable government may well require hiring administrators tainted during the tenure of the previous regime; the need to attract foreign investors and maintain peace in the streets may require some compromises on the extent and length of criminal proceedings against past perpetrators, and so forth.

To recap, the tension between peace and justice is especially pronounced in transitional settings because creating the basic institutions of governance is more likely to raise it, and because the guidance available in settled context from the existence of such institutions is missing. To this dual explanation we should add that the conflict between peace and justice is further heightened in transitional situations because the political stakes are uniquely high during such moments. If a transitional society cannot consolidate peace and functioning government, the very effort to create a decent new state suffers shipwreck. This kind of fragility, where the entire political project is at stake, is more likely to float peace versus justice dilemmas than a specific crisis in a consolidated democracy. Such localized crises typically implicate localized endeavors, not the existence of the political system itself.

2. War Crime Tribunals

The 20 th century's most famous and probably most significant war crime trials were held in Nuremberg, Germany after the end of World War II. [ 7 ] Between 1945–1949 the United States and its allies held a series of 13 trials. The first, and most famous of these, involved the prosecution of senior surviving Nazi officials including Hermann Göring, Joachim von Ribbentrop, Julius Streicher, Rudolf Hess and Albert Speer. Defendants in the other 12 trials, which took place between 1946–1949, included doctors, jurists, industrialists, and other key stake holders in the Nazi state.

Initially, it was not clear that the allies would put their defeated enemies on trial at all. The creation of the first Nuremberg Tribunal was preceded by a long debate, especially fierce in the United States. Hard liners, represented most vocally by American Secretary of the Treasury Henry Morgenthau Jr., advocated the summary execution or forced removal of the entire Nazi chain of command and the destruction of Germany's industrial capacities. On the other hand, Legalists, led by Secretary of War Henry Stimson, insisted on affording the Nazis fair trials that would honor American procedural protections. The United States fought the war in defense of political freedom, the Legalists insisted. Such freedom depends on upholding the ideals of the rule of law. These ideals, in turn, require the individualization of guilt and giving defendants a fair chance to answer the charges against them. Germany, Stimson warned, must not be punished en-masse; such collective punishment would only serve to increase resentment and may well plant the seeds for another war. Instead, the careful and fair employment of the courts would allow the Germans to “internalize” their guilt. As Stimson put it:

…punishment is for the purpose of prevention and not for vengeance. An element in prevention is to secure in the person punished the conviction of guilt” (for a summary of this debate see Bass 2002: 152–161).

On November 21, 1945 Robert H. Jackson, Chief of Counsel for the United States at Nuremberg, began the case for the prosecution with the following, now iconic words:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason. (Jackson 1945)

The prosecution team at Nuremberg had originally planned to concentrate on charges of aggressive war rather than on Germany's wholesale destruction of Europe's Jews. Much of the initial legal work revolved around the creation of a jurisprudence of conspiracy that would allow the conviction of the entire Nazi leadership. But the liberation of the Dachau and Bergen-Belsen concentration camps, and the horrific evidence discovered there, left the allies with little choice but to incorporate charges of crimes against humanity into their trial strategy (Bass 2002: 180).

The defendants' complaints about “victors' justice” and the retroactivity of the charges not withstanding (more on this to follow), the Nuremberg trials still stand out as “legalism's greatest moment of glory” (Bass 2002: 203). In spite of intense political pressure by Stalin, Churchill, and powerful figures inside the United States to dispense with trials all together, and in spite of the unprecedented nature and magnitude of the crimes, the judges at Nuremberg presided over a remarkably cool and orderly procedure. For the first time in history, senior political leaders were indicted and tried for “crimes against humanity.”

The tribunals also established important principles of international justice, such as the responsibility of heads of state, the rejection of the infamous “I was just following orders” excuse, the weakening of retroactivity as a defense against crimes of mass atrocity, and the right of war criminals to a fair trial. [ 8 ] In addition to these important legal achievements, Nuremberg also established the trial as an invaluable instrument for creating a credible, lasting historical record of human rights abuses.

The Nuremberg trials were succeeded, in the spring of 1946, by the Military Tribunal for the Far East, held in Tokyo. Twenty-eight members of Japan's military and political leadership, including former Prime Ministers, War and Navy Secretaries, generals, diplomats, and some economic luminaries were indicted for crimes against the peace. Twenty-five of the defendants were convicted. Seven were executed, and the remaining 18 received prison sentences ranging between 7 years and a life sentence.

The Tokyo proceedings never achieved the prominence of the Nuremberg tribunals. Explanations for their relative obscurity include the unavailability of some of the trial records, the fact that the perpetrators were not household names in the west, and the allies' embarrassment about disagreements between the judges on using the death sentence, and on the fairness of the proceedings (for more detail see Futamura 2008 and Totani 2008).

In spite of the ambitious standards of accountability for mass atrocity set at Nuremberg and Tokyo, the actual practice of international criminal justice went into a prolonged lull once the Cold War began. The sharp ideological differences between the superpowers made the cosmopolitan ideals underlying such trials less persuasive. Concerned that war crime prosecutions would become one more arena for political conflict, neither the Americans nor the Russians pursued them. The lull ended with the collapse of the Soviet Union and the end of the Cold War, and the first significant war tribunals thereafter were established by the United Nations in the 1990s—the ad hoc International Criminal Tribunal for the former Yugoslavia at The Hague (ICTY), in 1993, and the ad hoc International Criminal Tribunal for Rwanda in Tanzania (ICTR), in 1995.

The ICTY got off to a rocky start. Tribunal president Theodor Meron described it as “little more than an ideal” at its inception in 1993. The trial, a symbolic “expression of outrage”, served more as a salve for international guilt than instrument of international justice. Financial resources were initially so meager that the court could not afford to pay more than a few months worth of rent and salaries (Bass 2002: Ch. 6). But in recent years, the tribunal has come into its own. While the historic trial of Slobodan Milošević could not be completed because of the defendant's death, the ICTY indicted the first President of Republika Srpska (Bosnia and Herzogovina), Radovan Karadžić, in July 2008. He is currently conducting his defense. Additionally, Ratko Mladić, the military mastermind of the siege Sarajevo and the massacre of Srebenica, was arrested in northern Serbia on 26 May 2011 and is currently on trial in the Hague. Biljana Plavšić, another former President of Republika Srpska, was convicted of war crimes in 2002.

The final trial for the ICTY has recently commenced. Goran Hadžić, who went from warehouse worker to rebel Serbian president, was arrested in northern Serbia on July 20, 2011 after seven years as a fugitive. He has pled not guilty to “involvement in the murder of hundreds of Croats” as well as large scale expulsions. He is the last of the 161 suspects indicted by ICTY to face trial. Hadžić, Karadžić, and Mladić were all arrested in Serbia after years on the run from international justice. The impending terminus of the court's activities underscores the transitory nature of such ad hoc war crimes tribunals.The court's annual budget is now upwards of $310 million and it employs more than 1,100 people from 82 countries. The ICTY has convicted 64, acquitted 13, sent 13 for trial in domestic courts, and withdrawn indictments against 36, including 16 who died after being charged. Eighteen suspects are currently being tried, while 17 are appealing their convictions.

The tribunal often faced, and to some extent still faces, accusations of inefficacy. Ad hoc tribunals lack their own coercive power and rely on the support of individual nation-states. Little progress was initially made in the 1990s towards the capture of important war criminals in the former Yugoslavia. Yugoslavia was not then in a truly transitional state such as found in Germany or Japan at the end of WWII, as the Serbian government of Slobodan Milošević, who had supported the Bosnian Serb commanders, remained in power. There was, as in other regions in which war crimes have occurred, hostility to outside monitoring and extranational justice. This was also seen to a lesser extent in Croatia. However, national (or domestic) justice proved itself to be overwhelmingly corrupt, biased, incompetent, and inadequate.

Only after Milošević's fall from power did the new Serbian government become more amenable to cooperating with demands for international justice. The rebel Serbian leaders did and still do retain the sympathies of much of the Serbian population. External pressure points proved to be effective, as Serbia's government responded positively to a carrot and stick approach known as the policy of conditionality. Serbia's European Union (EU) membership application was blocked until Serbia complied and arrested the trio of Mladić, Karadžić, and Hadžić. The principle behind conditionality does not differ significantly from the rationale behind sanctions regimes, such as those employed against apartheid South Africa, Rhodesia, and (currently) Iran.

The ICTR, located in Arusha, Tanzania, can also boast substantial achievements. The court has issued the first ever genocide conviction by an international tribunal, as well as the first conviction in which rape was considered a crime of war. Given the massive domestic prosecution of génocidaires by the Rwandan authorities, the ICTR has primarily focused on the indictment of “big fish”—senior level suspects involved in the design and planning of the genocide. These indictments have resulted in genocide convictions of Rwanda's former Prime Minister, Jean Kambanda, and quite a few cabinet members.

In addition to securing significant convictions and setting legal precedents for the practice of international humanitarian law, the ICTY and ICTR were also successful in creating detailed records of atrocities. In this, both tribunals continued the legacy of the Nuremberg Tribunals, which, as mentioned earlier, aimed not merely at the conviction of the guilty but also at reliably documenting the horrors for posterity. [ 9 ]

A complaint consistently made against the ICTY and the ICTR has been that these tribunals do not operate on the sites where the crimes being investigated took place. This fact, so the criticism goes, creates a disconnect between the people who suffered throughout the war and the process in which their suffering is addressed. The attempt to address such criticisms has resulted in the creation of a rather innovative form of international justice—the Internationalized or Hybrid Courts. These bodies, which have been operating in Bosnia Herzegovina (since 2005), Kosovo (since 2000), Cambodia (since 2003), Sierra Leone (since 2002), East Timor (between 1999–2005), and Lebanon (since 2007), employ both international and local jurists and adjudicate on the basis of a mixture of national and international law. [ 10 ] Unlike the Nuremberg and Tokyo tribunals none of the ad hoc tribunals such as the ITCY and ITCR are empowered to impose the death penalty, though no centralized prison exists to house those convicted.

Among the criticisms levied against the tribunals is their alleged Western bias. The Special Court for Sierra Leone, which in April of 2012 convicted former Liberian leader Charles Taylor of aiding and abetting war crimes, was funded almost exclusively by the United States, United Kingdom, Canada, and the Netherlands. The international courts and the human rights which they embody are Western liberal concepts with far less resonance in other parts of the world. Some have questioned the tribunals are too focused on Africa, as all pending cases currently are Africa-related. The Africa Union has accused the ICC of being an Euro-American neo-colonial enterprise, though this may be taken with a certain pinch of salt, as many of the leaders within the African Union have good reason to believe that they may one day be called to the defendant's docket.

Perhaps the most significant development in international criminal justice since the Nuremberg trials has been the establishment, by the Rome treaty in 1998, of the permanent International Criminal Court (ICC) in The Hague. By 2011, 114 nations had ratified the Rome Statute. The court has jurisdiction over serious crimes (genocide, crimes against humanity, aggression) committed after July 1, 2002 (when the statute took effect), by a national of one of the states that are party to the Rome treaty. It also has jurisdiction over crimes committed on the territory of such state parties, or when the UN Security Council refers a specific case to it. The UN Security Council is authorized not only to refer cases to the court but also to ask its prosecutor to suspend proceedings. Nevertheless, Security Council members Russia, China, and the United States have not ratified the statute. This position is shared by several other major countries such as India, Indonesia, and Israel. Within the next several years, tribunals for Sierra Leone, Rwanda, the former Yugoslavia, Lebanon, and Cambodia will close, leaving the ICC as the sole institution of international criminal justice.

Importantly, the court's authority is residuary: it acts only if member nations cannot or will not.

Most of the cases before the ICC involve ongoing conflicts. This has required the establishment of field offices in order to assist in investigations and the collection of evidence, as well as to conduct outreach operations to local populations. While there are immense practical difficulties in gathering evidence and enforcing arrest warrants in active war zones, senior ICC officials have claimed that their real time involvement has increased deterrence. [ 11 ]

So far the ICC has taken up cases of war crimes committed in Uganda, the Congo, and the Central African Republic. All three countries have referred these cases themselves. In addition, the UN Security Council has referred the case of Sudan, which is not a party to the Rome treaty. After conducting an investigation into the referral, the court's prosecutor has recently issued an indictment against Sudan's President, Omar al-Bashir. [ 12 ] A decade after the courts creation, 22 arrest warrants have been issued, and five suspects currently are in custody. Recently (as of July 2012), the United States has started to apply pressure on President Paul Kagame of Rwanda to end his assistance to rebel factions in Congo renowned for their egregious war crimes. The United States indicated that there might be a reduction in military aid to Rwanda, but also that Kagame personally may face indictment and (ultimately) prosecution at the ICC.

One of the most innovative features of the ICC is the fact that it gives a significant role to victims in its proceedings. Victims can send information directly to the court's prosecutor, they can request the opening of a preliminary investigation, they can appear before the court's pre-trial chamber when it deliberates on whether to open a full blown investigation into a case, and, most significantly, they can ask to present their position during the trial itself. Article 68 (3) of the ICC Statute reads:

where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. (see Other Internet Resources for link to the full text of the Rome Statute)

The exact jurisprudence regulating victims' involvement is still being developed. Yet, it is already clear that the Rome statute gives them a far greater role in the international criminal process than they have had under traditional tribunals.

Despite the fact that the United States played a major role in the negotiations surrounding the creation of the ICC, the U.S. initially voted against the Rome Statute in 1998, before eventually signing in December 2000. [ 13 ] President George W. Bush revoked the United States' signature to the Rome Statute, citing concerns that the court could be used for political prosecution of American citizens, particularly American service members who were serving abroad. The U.S. Congress passed several bills during the Bush Administration designed to shield American citizens from prosecution by the ICC. The United States has also threatened to cut off foreign aid to countries that have failed to sign Bilateral Immunity Agreements with the U.S.

Although the Obama administration has been much less hostile towards the ICC, going so far as to co-sponsor a UN Security Council resolution which called for the ICC to investigate alleged crimes against humanity committed by Muammar Gadaffi, the United States has yet to join the ICC. [ 14 ] The United States continues to make immunity for U.S. citizens a prerequisite to their ascension to the ICC.

2.2 Criticisms of war crime tribunals

The employment of war crime tribunals has always been controversial. In what follows some of the central criticisms of such trials are examined. We will focus on substantive rather than technical concerns. “Technical concerns” is understood as the lack of resources, the reluctance of the international community to provide material assistance (in direct funds or in apprehension of suspects), the ability of defendants to destroy evidence, the deplorable condition of the legal class in war torn countries, and problems of translation and common language. While these certainly are significant obstacles (as it was pointed out earlier, the operation of the ICTY was almost undermined by such difficulties), they do not challenge the rationale for using trials. The objections taken up here, on the other hand, represent concerns that call into question the coherence and fairness of the criminal courts as instruments of political transition.

According to some critics, post war tribunals, far from expressing a commitment to the rule of law, are merely a charade in which winners punish losers for the damage and suffering the war brought about. This kind of cynicism about doing justice after war (and about the role of justice in politics more generally) has ancient roots. In his History of the Peloponnesian War , Thucydides (B.5 Ch.17) imagines one of the Athenian generals offering a sobering reality check to a Melian politician who does not understand why Athens must conquer his tiny, politically neutral island:

we both alike know that in the discussion of human affairs the question of justice only enters where there is equal power to enforce it, and that the powerful exact what they can, and the weak grant what they must.

Hermann Göring made a similar observation in a conversation with Nuremberg's prison psychiatrist: “the victor will always be the judge, and the vanquished the accused” (Bass 2002: 8).

The claim of victor's justice is difficult to dismiss. [ 15 ] After all, had the Allies lost the war, many of their senior military and political leaders would have gone on trial for the firebombing of Japanese and German cities. Curtis LeMay and Robert McNamara have publicly admitted as much. [ 16 ] And yet it is worthwhile noting, with Gary Bass, that there is a distinction between the circumstances under which a tribunal is created and how decently and fairly it operates. In other words, a tribunal that was set up after victory in order to punish the side that lost, might still either succeed or fail to follow fair procedures. And in so far as this is true, the retribution of some victors may be preferable to that of others. As Bass writes: “it is victory that makes justice possible but the fairness of the process is what makes it justice” (Bass 2002: 329). And, he adds, even though we may be cynical about the fact that Americans are putting Germans on trial after they have defeated them, most of us, if given a hypothetical choice, would still prefer to be tried by an American rather than a Nazi court, because we assume it would be fairer (for a useful series of essays on the Rwandan transition see Strauss and Waldorf 2011). Simply imagine the kind of charges the Nazis would bring against their defeated enemies: most likely, they would have not sufficed with indicting the allies for the firebombing of German and Japanese cities; they might also have charged then with protecting Jews or with miscegenation, and perhaps punished them severely for these charges. While an indictment for firebombing would have been substantially sound, the latter accusations would have been based, exclusively, on the Nazis warped racial theories. In other words, some victors' justice can be substantively flawed. Here, then, is the main advantage of allied over Nazi victor's justice: the Americans and their partners prosecuted their defeated enemies for crimes that really were crimes (for further discussions of victors' justice see Minow 1998; Chang and Barker 2001; Peskin 2005).

A second important criticism of post war trials is that they hold defendants responsible for acts that were not prohibited at the time they were committed.

Many of the Nazi defendants at Nuremberg argued that no existing laws or international standards banned their conduct during the war. Consequently, they argued, there can be no legal basis for prosecuting them. Such claims are based on a fundamental precept of the rule of law: Nullum Crimen, Nulla Poena Sine Lege (no crime, no punishment without a legal prohibition). The main strategy used to counter these arguments at Nuremberg was “positivistic”: prosecutors strained to find sources in existing international law that did forbid aggressive war, and then moved to associate many of the other crimes for which the Nazis were accused with the waging of such war (Minow 1998: 33). A related difficulty arose when the prosecution looked for a legal doctrine that would allow them to convict a large group of people for belonging to the Nazi war machine. Here, too, a creative positivistic solution was found: One of Stimson's aids, colonel Murray Bernays, devised the idea that the Nazis would be tried as part of a criminal conspiracy. The advantage of such a strategy was that it required nothing more than the conviction of specific organizations of the charges (the SA, SS, Gestapo among others) in order to hold all their members responsible. As Bass puts it:

once these organizations had been convicted, any member of them could be swiftly punished: instead of proving individual guilt… [prosecutors] would only have to provide that the defendant had been a member of a criminal group activities. (Bass 2002: 171; I am grateful to Thomas Pogge for this point)

The severity of the problem of retroactivity decreased after the Nuremberg tribunal established the precedent that there was no need for a highly specific prohibition in order to be held responsible before an international criminal court. And yet, the tribunals for Yugoslavia and Rwanda still faced some problems of retroactivity when it came to deciding whether ethnic cleansing constituted genocide and what kind of intent was required for a genocide conviction (Minow 1998: 34–35).

While prosecutors in Nuremberg settled on a positivistic strategy for countering the claims of retroactivity made by the defendants, another possibility for rejecting such arguments should be mentioned. This alternative is based in the “natural law” tradition. On this view, the response the Nazi defendants should have been given is, quite simply, that there are things that one does not do, or can expect severe punishment for doing, whether they are explicitly forbidden or not. Whether such severe actions defy “the moral law” to use the somewhat antiquated language of the classical natural lawyers, or whether they simply offend fundamental sensibilities of any civilized human being, the upshot is the same: at the extreme reaches of human behavior illegality does not necessarily depend on a prior legal prohibition. It was this kind of argument that the lead British prosecutor in Nuremberg, Hartley Shawcross, had in mind when he exclaimed in response to one of the iterations of the retroactivity complaint:

I suppose the first person ever charged with murder might have said: “now see here. You can't do that. Murder hasn't been made a crime yet”. (Persico 1994: 138)

A third important complaint against war crime tribunals maintains that they frequently fail to indict all of those who were involved in committing atrocities. According to this charge, courts find it easier to prosecute lower level officials and military personnel, often leaving the more senior figures who devised the violent policies (but do not have actual “blood on their hands”) untouched (Minow 1998: 40–41). To the extent that this complaint is well founded it is devastating, as it suggests that war crime tribunals do not result in a full or coherent exercise of retributive justice (for a comprehensive account see Cryer 2005). The principle of “Command Responsibility” (CR) originally devised at Nuremberg, and used extensively by the ICTY, has been employed, quite effectively, in order to counter complaints of selectivity. CR allows prosecutors to indict senior officials exclusively on the basis of their military or political leadership role (given the duties of supervision and control attached to that role).

Thus, the ICTY has been able to convict Serbian officers for war crimes because they did not prevent or curtail activities in which their troops were engaged. In an especially striking expansion of CR, a Bosnian Croat regional commander, Tihomir Blaskic, was convicted by the trial chamber of the ICTY of murder and other crimes against humanity, for atrocities that took place in the village of Ahmichi. The charges did not allege direct involvement or even turning a blind eye to the activities of subordinates, but, rather, focused on Blaskic's failure to investigate after the massacre was brought to his attention. His unwillingness to look into the events was equated by the court with responsibility for direct killing. In 2004 the appeals chamber of the ICTY rejected this interpretation of CR and overturned the relevant part of the conviction.

While CR can be instrumental for moving up the chain of command, it also comes into conflict with the legalistic premise underlying war crime tribunals. A criminal trial traditionally establishes individual responsibility by presenting direct evidence against the defendant. CR allows conviction and punishment based on a philosophical construct rather than on the garnering of such evidence. The construct, roughly speaking, is that certain roles come with built in accountability for the actions of others, whether or not the individual who holds the role was aware of these actions. Criminal law doctrine is, to say the least, suspicious of such a separation between intent and culpability, especially when it comes to very serious offenses (lesser offenses can be established by proving the defendant was reckless or indifferent). This tension points to a problem at the heart of international criminal law: does the unique nature of mass atrocity, wherein numerous people harm others with differing degrees of acquiescence and direction from a large bureaucratic class, really lend itself to the legalistic commitment to individualizing guilt on the basis of direct evidence? Or do the distinct features of such crimes require relaxing our standards of individual responsibility so as to implicate the entire state structure that made the atrocities possible? [ 17 ] If the latter, it may be difficult to hold fast to the justification of such trials as expressing a firm commitment to legalism and the idea of the rule of law. [ 18 ]

Other significant (if less conceptually interesting) criticisms of the international criminal courts hold that they do not focus sufficiently on the suffering of victims, concentrating, instead, on establishing the guilt of perpetrators), [ 19 ] that the proceeding tend to become technical and tedious, thus trivializing the horrors being discussed, [ 20 ] that there can be a discrepancy between the (Western) cultural norms central to legalism and the local traditions of the society in which atrocities took place, [ 21 ] and that, in light of the repeated occurrence of genocide in the 20 th century, the practice of international criminal law does not show great promise of deterrence. [ 22 ] Leaders, such as Bashar al-Assad and Omar al-Bashir, who have the backing of major powers, have virtual impunity. Of course it is important to prosecute former heads of state, so as to demonstrate that political seniority is no guarantee of immunity from justice. The international tribunals serve a pedagogical purpose, drawing attention to pertinent issues such as child conscription.

3. Truth Commissions

The structural and political shortcomings of war crime trials, as outlined in the previous section, have led policy makers in war torn countries to turn to other measures of transitional justice. The most important among these is the non-judicial truth commission.

Priscilla Hayner (2002), in her landmark book on truth commissions, enumerates four characteristics typical of these bodies:

• They deal with the past
• They investigate continued patterns of abuses and not specific cases
• They operate for up to two years and then submit reports summarizing their findings and,
• They are usually official bodies sanctioned by the state.

These commissions, Hayner continues, most often have some or all of the following goals: unearthing, clarifying and formally acknowledging past abuses, responding to the needs of victims, helping create a culture of accountability, outlining institutional responsibility and possible reforms, advancing the prospects of reconciliation and reducing conflict over the past (Hayner 2002: 24).

While truth commissions have fewer coercive powers than courts (they cannot compel governments to carry out their recommendations, they have no authority to punish etc.), their mandate for investigating the broader pattern of abuses, and their tendency to put the victims at the center of their proceeding, gives these bodies a great degree of moral credibility and legitimacy.

The work of South Africa's Truth and Reconciliation Commission (hereafter TRC) has sparked a great deal of interest in the use of truth commissions after war. The celebrity of its chair, Desmond Tutu, the massive scale of the public hearings it held, the intensive media coverage, and its controversial amnesty-for-truth mechanism, generated a great deal of international curiosity. Ever since the TRC completed its hearings and published its report, nations facing a transition to democracy have consistently asked themselves whether they too should use truth commissions to confront past abuses. Some scholars even go so far as to say that the truth commission has now replaced criminal prosecution as the most important norm of international justice (see, for example, Ben-Josef Hirsch 2007).

While the TRC has become paradigmatic of truth commissions, it is worthwhile noting that it was not the first such body. Argentina, Chile, and El Salvador all employed relatively effective truth commissions during the 1980's and early 1990's. [ 23 ]

These efforts provided both inspiration and valuable lessons for the designers of the South African body. [ 24 ]

In Argentina, a truth commission was set up to investigate the abuses committed by the military junta during the country's “dirty war” (1976–1983). It is estimated that up to 30,000 suspected “subversives” were “disappeared”—abducted, tortured and disposed of secretly—by security forces during those years. Unlike the South African TRC, the Argentinean body, officially named “National Commission on the Disappearance of Persons”, did not hold public hearings. The commission also lacked the authority and incentive structure to compel cooperation from the military. And yet, it was able to produce a substantive report. More than 7000 statements were taken, 1500 of which were given by survivors of military detention camps. The commission focused on locating and exposing military detention and torture centers. Much of the evidence it gathered was handed over to prosecutors, eventually aiding in the convictions of several high-ranking officers. The truth commission's report, titled Never Again ( Nunca Más ), was published in 1984 and has become one of the best-selling books in Argentinean history.

Seven years later, Chile's National Commission on Truth and Reconciliation published a report documenting human rights abuses committed by the Chilean army during General Augusto Pinochet's 17-year reign. As in Argentina, Chile's security forces practiced routine torture, abductions and extrajudicial executions. The abuses were especially severe in the first few years of the dictatorship. In 1978 Pinochet issued a sweeping amnesty order, protecting all members of the security forces. This amnesty created a complex constitutional environment for the truth commission. The commission, chaired by former senator Raul Retting, consisted of an equal number of Pinochet supporters and critics. Its mandate was defined in relatively narrow terms, focusing on executions, disappearances and cases of torture that resulted in death (leaving out a large number of torture survivors). Like its Argentinean counterpart, the commission had no way to compel members of the security forces to testify. The Commissioners looked into 3400 cases and issued an 1800 page report in February of 1991 strongly (and, significantly, unanimously) condemning Pinochet and his generals. The impact of the report was weakened by a series of armed attacks carried out by left leaning militants shortly after its publication. In spite of the limited public attention it received at the time, the report was instrumental in creating a reparations program for the relatives of Pinochet's victims. The commission's work was also useful in providing evidence to support the Spanish extradition request that eventually led to Pinochet's arrest in Britain. Pinochet was later returned to Chile, and died before he could be convicted of any crimes.

El Salvador's truth commission was probably the least successful of the three. The commission was created to investigate abuses carried out in the course of the civil war between government forces and FMLN guerrillas. According to some estimates, the 12-year war (1980–1992) claimed the lives of 75,000 citizens. As in Argentina and Chile, the military engaged in executions, torture, and abductions, in addition to large-scale massacres. The El Salvadorian commission operated for 8 months. Appointed by the Secretary General of the United Nations, its members included former Colombian President Belisario Betancur, former President of the Inter American Court of Human Rights Thomas Buergenthal, and former Minister of Foreign Affairs of Venezuela Reinaldo Figueredo Planchart. The animosity and diffidence between the former combatants was such that no Salvadorians were allowed to serve as commissioners.

The commission gathered testimony on more than 7000 cases of severe human rights violations. Its final report, titled “From Madness to Hope”, outlined a set of harsh conclusions against 40 government and military officials and stated that the vast majority of atrocities had been committed by government backed security forces (rather than by FMLN fighters). Very shortly after the report's publication, a national amnesty law was passed, rendering many of the commission's recommendations irrelevant. However, the report was helpful in shaming and eventually removing from service some of the military officials accused of especially egregious abuses.

Three years after the release of El Salvador's report, On April 15, 1996, Archbishop Desmond Tutu, the head of South Africa's Anglican Church, addressed a crowd gathered at East London's city hall.

We are charged to unearth the truth about our dark past,

he told his listeners,

and to lay the ghosts of that past to rest so that they will not return to haunt us; and that we will thereby contribute to the healing of the traumatized and the wounded—for all of us in South Africa are wounded people. (Meredith 1999: 3)

Thus began South Africa's controversial experiment in transitional justice. [ 25 ]

As they debated how to manage the transition from apartheid, negotiators on behalf of the African National Congress (hereafter ANC) and the outgoing National Party clashed repeatedly on the question of how to address human rights abuses committed during the apartheid era. In the negotiations leading up to the 1993 interim constitution, which laid down the terms of the transition, the most contentious issue concerned the question of amnesty. After a great deal of wrangling, the two sides agreed to add a postamble to the constitution containing the following language:

in order to advance… reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions, and offenses associated with political objectives and committed in the course of the conflicts of the past.” (Postamble to South Africa's Interim Constitution of 1993 as quoted in Meredith 1999: 20–21)

Many ANC supporters, who wanted to see apartheid officials brought before Nuremberg style war crime tribunals, were understandably upset by the arrangement. Nelson Mandela, who insisted on the importance of steering clear of “victors' justice”, remained adamant about the need for some kind of accountability for apartheid's crimes. Without such reckoning, he threatened, the unaddressed atrocities of the past would live with South Africans like a “festering sore” (Meredith 1999: 18).

The convergence between these two commitments—to amnesty on the one hand and to accountability on the other—was to result in the establishment of the TRC.

The process that led to the commission's creation was characterized by an unprecedented degree of transparency and public participation. During 1994, two major conferences were held to lay the groundwork for the TRC's work. Both were organized by Alex Boraine, an Anti-Apartheid activist who served as president of the South African Methodist Church, MP for the progressive party, and the director of important civil society NGOs. The first of these conferences focused on the lessons of political transitions in Latin America and Eastern Europe (Proceedings were published in Boraine et al. 1994). The second solicited input from stakeholders inside South Africa (Proceedings were published in Boraine et al. 1995). After the conferences, South Africa's parliament began deliberating on the National Unity and Reconciliation Act, which would set up the commission. The Parliamentary Standing Committee on Justice held extended public hearings asking individuals, political parties and NGOs for their advice on the design of the TRC. The law was finally passed, after a great deal of bickering and debate, in May of 1995, a year or so after it was first presented. The TRC thus became the first commission of its kind to be created through a parliamentary process rather than executive decree. [ 26 ] Whether by design or inertia, this open, deliberative approach was also applied to the selection of commission members. Nominees were suggested by NGOs, churches, and political parties, and were then interviewed in public by the selection committee. Finally, the cabinet and president chose the commissioners from a short list.

The Promotion of National Unity and Reconciliation Act set the following three goals for the commission:

to develop a complete picture of the gross violations of human rights that took place in and came through the conflicts of the past; to restore to victims their human and civil dignity by letting them tell their stories and recommending how they could be assisted; and to consider granting amnesty to those perpetrators who carried out their abuses for political reasons and who gave full accountings to their actions to the commission. (Graybill 2002: 6).

The commission would respect the ANC's promise to offer amnesties, but the reprieve would not be granted automatically. It would, rather, be linked to a demand for full disclosure from perpetrators. Those seeking amnesty would have to apply for it, provide full details about what they had done, and establish that their activities were politically motivated (rather than the result of greed, sadism etc.). [ 27 ] Applicants would not, however, be required to apologize or otherwise express regret. Furthermore, the arrangement would eliminate not only criminal responsibility but also civil liability. [ 28 ] Successful applicants could be neither charged nor sued for their conduct during the apartheid years. The commission would be charged with investigating abuses that took place between March 1, 1960 and May 10, 1994.

The commission was divided into three committees in order to realize the aims set out by the law: the committee on human rights violations, the committee on amnesty, and the committee on reparation and rehabilitation. The first would collect testimony and conduct public hearings regarding the abuses. The second would consider applications for amnesty from members of the security forces and ANC, and determine whether the acts in question were committed in a political context and whether applicants had provided full disclosure about them. The third would come up with recommendations and criteria for whom to compensate and how.

The TRC's authority and resources were unprecedented in the history of truth commissions. It had the power to subpoena witnesses and the authority to order searches and seizures. It had a witness protection program, 300 staff members, and an annual budget of 18 million dollars. Its proceedings were broadcast on a daily basis on both radio and television, and were widely covered by the printed press. During the course of its tenure, the commission took testimony from more than 22,000 victims and witnesses, hearing upwards of 2,000 of them in public.

Unsurprisingly, the main controversy surrounding the commission's work concerned its amnesty-granting powers. The opportunity afforded to perpetrators of egregious human rights abuses to walk away from prosecution enraged many black South Africans who wanted to see those who had tormented them and their families put behind bars. As far as many blacks were concerned, the TRC allowed some of apartheid's worst offenders to “get away with murder.” [ 29 ] As Martin Meredith (1999: 315) puts it in his superb survey of the commission's tenure:

…the work of the TRC provoked…anger in parts of the black community…particularly over the way security force operatives responsible for heinous crimes were given freedom in exchange for a bit of truth telling, while victims and their families were denied access to the courts. What many wanted more than truth was justice—prosecution in the courts and prison sentences.

Many academic observers of South Africa's transition were dismayed as well, remarking that neither political necessity nor the attempt to create social solidarity can justify the kind of sacrifices of retributive justice the TRC's work entailed.

The outrage is more than understandable, when one considers cases like that of Vlakplass commander Dirk Coetzee who testified to killing ANC activist Sizwe Kondile and burning his body on an open bonfire. Coetzee and his men stood by, drinking beers and smoking for more than seven hours, until nothing remained of Kondile. The sight of such a man walking away from his testimony cannot but turn one's stomach.

The international community has continued to experiment with truth commissions as a means to achieve transitional justice. On July 13, 2001, the United Nations Transitional Administration in East Timor (UNTAET) established the Commission for Reception, Truth, and Reconciliation (CRTR). The purpose of this commission is to promote “national reconciliation and healing” after decades of political conflict following the 1975 invasion and subsequent occupation of East Timor by Indonesia.

Following a failed attempt to annex East Timor in 1999, Indonesia-supported militants are suspected of killing over 1,000 supporters of an independent East Timor and caused hundreds of thousands of civilians to flee their homes (Stahn 2001).

In 2011, Brazil also created a truth commission to investigate and publicize human rights abuses that occurred during the rule of Brazil's military dictatorship from 1964–1985. The seven-person commission was provided with a two-year mandate to investigate human rights abuses and to compile a file report to be released publicly. However, doubts regarding the truth commission remain as a result of a 1979 law that provided amnesty to many of those responsible for crimes committed during the military regime's rule. [ 30 ]

Much of the scholarly literature on the TRC in South Africa centers on the question of justification, on the attempt to locate a rationale which might make sense of an arrangement that goes against a great deal of our untrained intuitions about justice. “If justice requires the prosecution and punishment of those who commit gross human rights violations”, writes Elizabeth Kiss (2000: 68), “then the amnesty offered by the TRC violates justice. Can the TRC be defended against, or in spite of, this criticism?” Similarly, Amy Gutmann and Dennis Thompson (2000: 22) point out that:

In a democratic society, and especially in a society that is trying to overcome injustices of the past, trading criminal justice for a general social benefit such as social reconciliation requires a moral defense if it is to be defensible.

Kent Greenwalt (2000: 191) echoes the same concern when he reminds us that,

those who decide whether to include amnesty as an adjunct to a truth commission must face two basic issues. Does granting amnesty to murderers and torturers involve doing injustice? What might justify the state's doing such an injustice?

In what follows, we offer a critical survey of some of the most important philosophical justifications of the TRC. The discussion applies to any truth commission with comparable powers (this discussion is based on Eisikovits 2004, 2006).

3.2 Justifying Truth Commissions

Gutmann and Thompson (2000) argue that a justification of a truth commission needs to meet three criteria relevant for the justification of all democratic institutions: it must be moral in principle, inclusive, and moral in practice. The first condition rules out what the authors call the realist justification—the claim that the compromise embodied in the TRC was necessary in order to avoid a civil war. The second demands that the justification employ reasons that are “broadly accessible and therefore inclusive of as many people as possible” (2000: 23). The last requires that the justification be based on reasons that “are to the extent possible embodied or exemplified by the commission's own proceedings” (2000: 23). The justification that most fully meets these three requirements, argue the authors, is one rooted in the concepts of deliberative democracy and reciprocity. Central to deliberative democracy is

the idea that citizens and officials must justify any demands for collective action by giving reasons that can be accepted by those who are bound by the action…. (2000: 35–36)

This, in turn, presupposes the notion of reciprocity

which asks citizens to try to justify their political views to one another, and to treat with respect those who make…efforts to engage in this mutual enterprise even when they cannot resolve their disagreements” (2000: 36).

To the extent that a truth commission promotes such reciprocal exchanges it is morally justifiable, because such an exchange is, in itself, a moral good. The first condition is thus met. A commission based in a conception of deliberative democracy is also inclusive since the principle of reciprocity involves appeals to reasons that make sense to a large number of participants in the political process:

the standard of reciprocity also satisfies the second requirement of justification by providing an inclusive perspective. A reciprocal perspective is one that cannot be reasonably rejected by any citizen committed to democracy because it requires only that each person seek terms of cooperation that respect all as free and equal citizens. (2000: 37)

Finally, a commission committed to the principle of reciprocity is likely to function in a way that embodies that principle.

Such a commission practices what it preaches about the democratic society that it is trying to help create. Reciprocity serves as a guide… for the commission itself, calling on the commissioners and the testifiers to practice some of the skills and the virtues of the democratic society they are striving to create… the openly participatory process by which members and staff of the TRC were appointed, and the generally public process in which its proceedings were conducted, demonstrated its own commitment to democratic practices. (2000: 37)

Reciprocity, argue the authors, implies another commitment—to “the economy of moral disagreement.” Citizens must justify their positions by using the least controversial rationale available. The principle of economy encourages those engaged in deliberation to look for justifying reasons that overlap with rather than contradict beliefs held by others. To be morally justifiable under a conception of deliberative democracy, a truth commission needs to economize on disagreement. An example of economizing in the work of South Africa's TRC is the decision not to grant blanket amnesties and to insist on the indictment of some of the worst perpetrators.

The proposed justification presents several difficulties. First, it assumes that a justification of truth commissions must meet the same demands that justifications of existing democratic institutions need to satisfy. But a truth commission is not a democratic institution. Rather, it is an institution that is meant to facilitate the transition of a society to democracy. More often than not, countries undergoing such transitions lack a democratic tradition, have no history of significant public dialogue, and have not secured the minimal economic conditions required for meaningful political participation. Under these circumstances, expecting truth commissions to reflect and promote the ideals of deliberative democracy might be too ambitious.

Second, the justification is not specific enough. It is not clear why deliberative democracy, and its accompanying attributes of reciprocity and minimizing disagreement, justify truth commissions any more than other transitional instruments. Thus, for example, a war crimes tribunal may generate as much public discussion as a truth commission, it may be based on reasons or principles as widely accessible as those underlying a truth commission, and it may insist on trying only the worst offenders, thus economizing on moral disagreements. It seems, in other words, that the deliberative democracy-based argument justifies more than one transitional policy.

Finally, it is questionable whether the TRC can be justified through a deliberative democracy rationale at all. The commission did not embody a particularly open, deliberative stance in its operation. Though many of its hearings were public, some of the important procedures associated with them were confidential by default. Thus, for example, the proceedings of the amnesty commission were public, but the amnesty applications themselves, as well as the supporting documentation, remained confidential until declassified by the commission. Furthermore, the commission was exempt from standard rules of legal procedure and evidence. Perpetrators named in the testimony of victims, or in the testimony of other perpetrators, were not given an opportunity to defend themselves; second-hand information, which a traditional court would have disqualified as hearsay, was admitted, etc. Now a commission making these sorts of exceptions to the precepts of procedural justice can still be justified (for example by showing that these exceptions were necessary for establishing the chain of responsibility leading to the higher ranks of government). But it is doubtful whether the best way to justify it is by invoking a conception of deliberative democracy. For public deliberation to be meaningful and substantial, strong protections of procedural justice must be in place. As mentioned previously, these were lacking in the case of the TRC.

A second justification holds that truth commissions, by focusing on victims and providing them with the opportunity to tell their stories to a sympathetic forum, recognize victims as moral agents with stories worth telling. As Kiss (2000: 73) puts it,

providing a platform for victims is one of the core tasks of truth commissions, not merely as a way of obtaining information but also from the standpoint of justice…Those whose lives were shattered are entitled to have their suffering acknowledged and their dignity affirmed, to know that their “pain is real and worthy of attention”… We affirm the dignity and agency of those who have been brutalized by attending to their voices and making their stories a part of the historical record.

The TRC did not adhere to the strict, skeptical approach to witnesses prevalent in law courts. Standard laws of evidence were relaxed. Commissioners offered unusual gestures of acknowledgement such as rising when the witnesses entered the courtroom, visiting the sites of atrocities, and participating in public reburials (for more detail see Kiss 2000: 73). These practices were aimed at making the process about the victims of apartheid; witnesses were assumed to be speaking the truth, and were treated as people with valuable tales to tell and lessons to teach.

The justification of the TRC sketched above is a powerful one. A transition from mass atrocity into civil society, if it is to be stable and lasting, requires that the value of the individual lives of an entire class—the class of victims—be affirmed. By allowing victims to testify in an uninterrupted manner, and by creating a setting in which their testimonies were presumed to be true, the hearings of the TRC in South Africa went beyond establishing the crimes of the security forces, or presenting the hardships of everyday life under apartheid. They also posited blacks, for the first time, as persons whose stories ought to be heard with care and respect. In other words, not only the content of the testimonies before the TRC was of significance; the mere act of blacks testifying was transformative as well. The class of whites, the majority of whom had supposed that a black man or woman cannot be the bearer of legitimate, significant information, was made to think again.

However, the argument from recognition raises a serious difficulty. Some victims argued that the restoration of their dignity requires that those who hurt them be punished; that in order to feel worthy of respect, they must know their injuries merit the criminal law's protection. For such victims, dignity is manifested not by the capacity to testify, but primarily by the commitment of the state to apply its coercive power on their behalf. For some of us, in other words, the currency of recognition is punishment rather than storytelling; being recognized as a human being again can consist, first and foremost, in knowing that one is part of a civic zone protected by law, where the use of violence against her is met with strict sanctions. Under this understanding, the newfound capacity to testify, even if combined with promises of future protection by the law, simply does not cut it.

Some defenders of truth commissions claim that these bodies are better than trials at producing comprehensive accounts of past abuses. This superiority, they say, justifies compromises in retributive justice. In the case of the TRC, it was not only the dismissal of regular rules of evidence that allowed commissioners to unearth more information. The commission's amnesty-for-truth mechanism created an incentive for perpetrators to come forward. Once they started to do so, a domino effect resulted: offenders who were exposed in the testimony of their colleagues rushed to testify lest they be indicted. Furthermore, since the commission was authorized to deny amnesty to anyone who had not provided “full disclosure”, those who came before it tried to give as much detail as they could.

The “more truth” justification is a strong one. Two observations are, however, in order. First, as some critics of the TRC have noted, its choice to focus on gross human rights violations—on dramatic stories of suffering, has obscured some of the institutional aspects of apartheid. Thus, the interconnections between business and the security forces, the wildly discriminatory practices of many work places and the support that many white media outlets lent authorities in masking the practices of apartheid were largely overlooked by the commission's work. Insofar as these, too, are aspects of the truth, they were not revealed by the TRC.

Second, the fact that the TRC was the result of a political compromise meant that there were some areas in which it treaded carefully. Some worm cans remained closed. In a recent book on the history of apartheid, Terry Bell (2003: 4) mentions one remarkable example: as Fredrick de Klerk, South Africa's last white leader, was heading for Oslo to receive the Nobel peace prize in 1993, he ordered a strike on a house allegedly housing militants from the Pan African Congress liberation group. A police death squad ended up killing five teenagers sleeping in a private home in the town of Umtata. The incident was never investigated by the TRC.

It has become fashionable of late to speak about the importance of forgiveness in politics. Forgiveness is said to be the only disposition that allows us to break free of the endless cycle of blow and counter blow characteristic of ethnic conflict. We are told that forgiving is our only chance to put to rest a tortured, complicated history of assaults and recriminations. One celebrated practitioner of political forgiveness, the Archbishop Desmond Tutu, called his book on South Africa's Truth and Reconciliation Commission No Future without Forgiveness . As the title suggests, Tutu argues that it is only by forgoing resentment and learning to forgive each other that South Africans could ever create a viable democracy. Can the prospects and benefits of forgiveness justify the tradeoff between truth and (retributive) justice involved in the TRC's work? [ 31 ]

The most prevalent argument in favor of political forgiveness concerns its potential to release victims and wrongdoers from the effects of vindictiveness. A desire for revenge can generate a never-ending violent cycle, trapping both sides in a dynamic of blow and response, eventually destroying all those involved. As Gandhi famously put it, “an eye for an eye can make the whole world blind.”

But forgiveness is not the only way to quell the desire for revenge. We can steer clear of revenge without forgiving. Victims might seek legal rather than private justice. They might agree to institutionalize their vindictive passions through the use of the courts. As Martha Minow (1998: 11) puts it, it is possible “to transfer the responsibilities for apportioning blame and punishment from victims to public bodies acting according to the rule of law.” This is, in essence, the rationale behind the attempts to expand the authority and centrality of the international criminal courts in recent decades.

Victims can (and very often do) simply move away from the scene of the trauma rather than seek revenge or engage in forgiveness. In recent years there has been a quiet exodus of approximately 100,000 Palestinians from the West Bank and Gaza, to Europe and North America. Most Holocaust survivors, uninterested in revenge or forgiveness, simply moved thousands of miles away from the sites of their horrific memories and swore never to set foot in the countries that had persecuted them. Others replace revenge with commemoration, dedicating themselves to the creation and maintenance of monuments and museums. Thus, for example, many of those handing out the ID cards at the Holocaust Museum in Washington D.C. are holocaust survivors, as are many of the guides in Jerusalem's Yad Vashem memorial.

The basic point, to reiterate, is this: vengeance can, indeed, be a very dangerous thing. But one does not have to advocate forgiveness in order to avoid it. There are other ways to combat it, ways that might be free of some of the complications (more on this below) associated with forgiveness.

Many commentators assume that forgiving is the exclusive prerogative of victims. On this view, it is problematic to define a process of political reconciliation in terms of forgiveness, because forgiving is a very private business that cannot be promoted as a policy. While this position is intuitively powerful, we will take a somewhat more nuanced stance. Let us call it the “fading prerogative” view: While forgiving is not exclusively up to victims, it certainly makes less sense to talk about forgiveness the further away we move from the partly directly injured. If X gets hurt in a bus bombing, she might forgive the person who planned the attack. It can make sense for her parents to forgive him too, though it is not obvious that they would be forgiving the same thing (the nature of the parents' injury is different from X 's: the extent of her physical pain was greater than theirs; the degree of their emotional anguish might have well been higher than hers). It would be more problematic to speak of X 's neighbors forgiving the bus bomber for X 's injuries, and even more problematic to speak of people whom X has never met forgiving the bomber. Forgiveness, then, might not be the exclusive prerogative of victims, but the entitlement to grant it certainly seems to fade as we move away from them. There is, in other words, a limited radius in which it makes sense to speak of forgiveness. This does not, of course, mean that we cannot think of political reconciliation in terms of forgiveness. It only means that such an approach would exclude a (potentially) significant part of the community from the process.

There are other difficulties with making forgiveness into a political goal. A policy encouraging victims to forgive those who have harmed them risks adding insult to their injuries; it can induce a sense of moral inadequacy on top of the devastation already suffered. A victim's reaction to such a policy might run something like this:

isn't it enough that I had to go through all this? Now you are expecting me to forgive the person who did it? Now you are placing the moral burden on me?

Such a reaction suggests that demands for forgiveness might exacerbate rather than quell resentment—both towards the offender, to whom the victim does not want to owe a moral debt, and towards the state that makes such demands. Ironically, then, a policy advocating forgiveness might undermine one of its own aims—the reduction of vindictive and resentful passions after conflict.

Finally, it is worth remembering that forgiveness is a deeply Christian notion. As J.G. Williams puts it: “forgiveness is at the religious, theological and ethical core of the Christian tradition” (Rye et al. 2000: 31). The term does have an important role in both Judaism and Islam, but its status in these faiths is more ambivalent. Thus, for example, while Judaism does, under some conditions, impose a duty to forgive, it is not clear whether this duty must be exercised towards non-Jews. Furthermore, Judaism, unlike Christianity, discourages unconditional forgiveness. Islamic doctrine does state that forgiveness is superior to revenge, but permits retributive practices, and even feuding under some circumstances. Unlike the famous Christian teaching encouraging the turning of the other cheek, the Koran recommends a middle way between absolute vindictiveness and absolute forgiving. It reads:

let harm be requited by an equal harm, though anyone who forgives and puts things right will have his reward from God Himself--He does not like those who do wrong. (al-Shura 42:40) (Haleem, M., 2004))

The Koran also makes a division between forgivable and unforgivable sins, mentioning the trespass of shirk —the recognition of divinities other than Allah—as a prime example of the latter category. Finally, both Judaism and Islam allow for forgiveness without the resumption of relations between victim and offender, while Christianity insists that the possibility of full restoration of previous relations be left open.

Since the demands and centrality of forgiveness vary between the different faiths, it might be problematic to include the term as part of our notion of political reconciliation, especially in cases of inter-religious conflict. Even if the employment of the term were not offensive to anyone, it is likely that different religious parties would be speaking of different things when they refer to forgiveness. This, it strikes me, can create more confusion than benefit.

4. Lustration

Lustration is the process of regulating how former government officials can participate in post-conflict government and social structures. In particular, lustration involves the screening, barring, and removal of public officials from public positions in the new democratic system as a form of administrative justice.

The concept is based on the ancient Roman lustrum rituals, a cleansing or purification of an individual or community through the removal of pollution. Lustration is often associated with the transition from an authoritarian regime to democratic governance, and in particular with both the denazification of post-WWII Germany and the post-communist transition to democracy in Eastern Europe following the collapse of the Soviet Union. Lustration was originally implemented as a part of the administrative reforms imposed by the Allies in post-WWII Germany and Japan, and by states in Western Europe that were formerly occupied by the Nazi regime.

Following the end of WWII, the Allies assigned themselves the task of purging all traces of Nazism from both German government and society, the first large-scale attempt at lustration in the modern era. The Big Three Allies (the Soviet Union, United Kingdom, and United States) agreed on a plan of action to denazify Germany at the Tripartite Conference in Potsdam. The Potsdam Agreement, released on August 2, 1945, set the groundwork for Allied efforts at purging Nazism and its adherents from Germany. The Potsdam Agreement required the Control Council (comprised of the four Allied Military Governors in occupied Germany) to

destroy the National Socialist Party and its affiliated and supervised organizations, to dissolve all Nazi institutions, to ensure that they are not revived in any form, and to prevent all Nazi and military activity or propaganda. (II.A.3.iii)

Furthermore, the subsequent Control Council Law No. 2 declared that the Nazi Party and all affiliates, totaling more than 60 specific organizations, were to be dismantled and outlawed.

The process of denazification, however, was not limited to the destruction of Nazi organizations. The Potsdam Agreement also abolished all police organizations that monitored and controlled political activity for the Nazi Party and revoked all Nazi-era legislation that established legally sanctioned “discrimination on the grounds of race, creed, or political opinion” (II.A.4).

One of the most ambitious and wide-scale activities of the Control Council was the arrest of those involved with the National Socialist Party and its affiliates, and those who actively supported Nazism during the war. The Allied arrest programs called for the automatic detention of anyone associated with the Nazi police and security services, officers holding the rank of major or higher in select branches of the armed forces, high-ranking members of the Nazi Party, and high ranking members of the German government. [ 32 ]

Controversially, the Potsdam Agreement also called for the removal of Nazis from both “public and semi-public office, and from positions of responsibility in important private undertakings” (II.A.6). Although this policy was both harsh and ambitious, it meshed with the Allied goal of both destroying the National Socialist Party and ensuring that it is “not revived in any form” (II.A.3.iii). The process of denazification also included the confiscation of all wealth and property associated with Nazi organizations and high-ranking Nazi officials, and a complete purging of the educational system of all Nazis, Nazi materials, and objectionable courses. The Allied military government also prohibited the display of Nazi “uniforms and insignia, salutes, medals, anthems, and music” (Plischke 1947), a policy that remained in force even after political control was returned to the Germans.

Despite the enormous amount of resources and energy devoted to the denazification of Germany, there were several problems associated with the process. One of the biggest impediments to the complete denazification of post-WWII Germany was the lack of qualified anti-Nazis to staff the government, and in particular the court system responsible for trying ex-Nazis. The shortage of qualified professionals with “clean records”, combined with interference from German officials and indifference from American officers, led to disappointment among many of those tasked with ensuring the complete removal of Nazism and its adherents from German government. [ 33 ]

Following the collapse of the Soviet Union and their emergence as independent nation-states, the states that made up the former Czechoslovakia practiced lustration as a method of transitional justice. In 1991, the Czech and Slovak National Assembly passed a law prohibiting former Communist Party officials, members of the People's Militia, and members of the National Security Corps from holding a wide range of elected and civil service positions in the new government for five years (until January 30, 1996); [ 34 ] the ban was later extended an additional five years.

In Hungary, a 1991 law attempted to reset the stature of limitations on crimes committed during the period of Communist rule (1944–1990). Hungary's Constitutional Court overturned this law. The Court later approved an amended bill, which labeled the repression of 1956 as “war crimes” and “crimes against humanity”, both of which carry no finite statute of limitations. On 9 March 1994, during the immediate run-up to national elections, the Hungarian Parliament passed a lustration ordinance that placed roughly 12,000 “officials” under review in an attempt to discover who among them had collaborated with the secret police during the Communist period. This list contained Parliamentarians, high-ranking government officials, top officials at the Hungarian National bank, ambassadors, generals, top media operatives, police, university officials and professors, judges, state attorneys, editors, directors of state agencies and banks, and administrators of other sundry financial and governmental institutions (Ellis 1996).

Two panels were charged with screening suspects by investigating their secret files. The investigative period was to last six years and results will remain secret for thirty years. Several elements of this law were found unconstitutional in March 1994, and the Parliament passed a new law on July 3, 1996, which provides for the screening of all individuals born prior to 14 February 1972 before the assumption of higher office. Former agents and officials of the internal security services were the target. If the lustrated official did not resign within thirty days, the results of the investigation would be released publicly, bringing public humiliation into play as a tool of lustration.

The demise of the former German Democratic Republic (GDR) in 1990, and its annexation by West Germany, resulted in its “colonization” by administrators, bureaucrats, and jurists from West Germany. This was partly due to the manner in which re-unification took place ( de facto annexation), but was also the result of the complete inadequacy of the existing East German civil service in the face of the new demands of a capitalist society. This “colonization” and the imposition of the political and legal judgment of another country, a former foe, sets the East German lustration apart from other such processes in post-Socialist Europe.

It was necessary to supply the new West German government with moral and political legitimacy in the former states of East Germany. This demanded the prosecution of past crimes under the prior regime, but also a purge of Communists and Stasi collaborators from the civil service. No post-Communist country has yet devised a lustration scheme with the golden balance addressing these two competing needs. East Germany was no exception, despite—or perhaps because of—the rigor with which lustration was pursued.

The ambiguities in the definition of collaboration (in cases of collaboration, forced collaboration, pseudo-compliance, clandestine resistance, etc.) resulted in similar difficulties in the lustration purge, whose terms were defined in the EinigVrt (the Treaty of Unification) (Blankenburg 1995). West German civil servants and lawyers largely conducted the purge and the construction of new institutions in East Germany. East German lawyers were both unfamiliar with the new legal system and suspect in the eyes of the new authorities. The non-indigenous nature of the process was a major problem both in fact and public perception. The scope of the lustration and the system's ability to delineate individual responsibility for the Communist regime's repression were both criticized (Blankenburg 1995).

The Treaty of Unification dealt with the union of both legal and political systems. Public employees would be scrutinized to determine if they were politically and ideologically fit for reemployment. Forced to reapply for their positions, public employees faced rejection if Stasi or other untoward associations were discovered. They also faced criminal trial if their offenses were deemed prosecutable by the reconstituted court system. Most trials were therefore conducted by new West German—or more rarely, pre-screened East German—judges under East German criminal law. These trials were meant to bring public humiliation to the convicted.

The former leadership of the DDR was tried in courts in West Berlin. Areas of investigation by the new authorities included: commanders responsible for the DDR's border policy (“shoot to kill”), election fraud at various levels of governance, and charges of corruption, embezzlement, and “misuse of public funds” (Blankenburg 1995). The prosecution took on a hybrid form: the suspects had to be tried according to the criminal law of East Germany (which West German jurists considered an Unrechtsstaat ) but with the procedures of West German courts. The intent was to criminalize the Communist regime by treating and prosecuting its leadership according to the rules of an ordinary West German criminal trial.

In the aftermath of the Iraq War of 2003, the Bush administration pursued a policy of “de-Baathification” as a means of purging the government of Saddam supporters and collaborators. In contrast to previous lustration efforts following WWII and the collapse of the Soviet Union, the U.S. government initially indicated that a large number of bureaucrats and officials would be retained in the post-Saddam government (de Young and Slevin 2003). However, the scope of the United States' de-Baathification efforts would soon expand well beyond that initially limited scope

The U.S.-led Coalition Provisional Authority (CPA) ultimately required a governmental purge of all Baath party members, although there were exemptions provided to certain local coalitions. Senior Baath party officials were forbidden from entering the entire post-Saddam administration, while ordinary members were prevented from entering the top levels of government, thereby ensuring that the top levels of government remained completely Baath-free (David 2006: 366). In addition, Iraq's military and police services were completely disbanded (see Yaphe 2004), leaving large numbers of trained military personnel without work or purpose.

Several problems emerged from the U.S. policy of total de-Baathification. By excluding so many citizens who had formerly held power from government, the CPA ultimately excluded and marginalized a large swath of the Iraqi population from both governance and the economy; an estimated 60–75 percent of those purged were unemployed by late 2003 (see The Economist 2003 and David 2006). To make matters worse, many of those excluded were former military and police personnel who were seasoned combat veterans that now sought to turn their military training against the U.S.-led forces overseeing the reconstruction and democratization of Iraq.

As a result of the purge of Baath part members throughout the entire Iraqi government, the CPA was faced with a shortage of qualified personnel to staff the new administration, military, and police forces (David 2006: 367). This lack of qualified personnel, combined with intensifying attacks against both coalition and administration targets and the subsequent difficulty recruiting workers, deeply impacted the ability of the still-forming government to function. These flaws, which ultimately obstructed efforts to stabilize Iraq and contributed to the large number of causalities caused by insurgents, will be discussed in greater detail below.

Lustration policies are often bogged down by the paradoxical nature of public trust during a political transition. A strong rationale for engaging in administrative purges is to signal that a political transition is real and that the authoritarian past is being put to rest. Officials responsible for a transition want to signal that the emerging democratic polity will operate differently from its corrupt and dangerous predecessor. Such signaling is achieved, inter alia , by displacing those who were responsible for administering the corrupt and vicious policies of the past. And surely, public trust does depend on communicating to ordinary citizens that a fresh political start has been made—that a new and lawful polity has been launched. On the other hand, public trust also depends on the functionality and competence of government. The trains need to run, licenses need to be issued or renewed, roads need to be maintained, and public order has to be kept. And if the bureaucratic class that knows how to do these things is subtracted from post war politics because of how it behaved under the previous regime, the daily operation of government is likely to suffer. And public trust is likely to tumble accordingly (this is when we begin to hear that “at least under Saddam the trains ran on time”, etc.) The first dilemma of lustration,then, concerns its scope: how does one lustrate enough so that public trust (and retributive justice) are served, without lustrating so much that the organs of government are undone and public trust is lost as a result? [ 35 ]

It goes without saying that different countries face different political circumstances when it comes to how much lustration they can carry out: East Germany could afford to purge its civil service rather severely, due to the availability of replacements from the West. Other nations, such as Poland and Czechoslovakia, did not have this luxury and had often to prioritize stability due to the exigencies and inherent dangers of the initial transition period.

Another complication impacting the scope of lustration arises from the difficulty in fixing degrees of guilt under totalitarian regimes. Here the problem is not so much lustrating in a way that maintains public trust but, rather, figuring out what counts, philosophically, as the appropriate degree of guilt to justify lustration in the first place. Mid-level officials in a ruling party mechanism cannot be automatically labeled as enthusiastic or even willing supporters of the machinery of oppression. Some were, some passively found their way into their roles and still others were coerced into them. A morally legitimate policy of lustration must take into account such gradations of guilt. [ 36 ] But the ability to determine degrees of culpability requires expensive, lengthy investigations which are often beyond the means of those orchestrating a transition.

Beyond these problems of scope lies an epistemological difficulty: Lustration purges and exclusions frequently, though not always, rely on testimonials and security service files which are often of dubious accuracy. The files are often rife with human error, exaggerations, and omissions. The most valuable Communist informants and collaborators were often missing from surviving secret police files (many were destroyed or “disappeared”, probably into KGB possession) or were shielded during the process (Minow 2000). [ 37 ] On the other hand, employees of the security services often embellished their accounts and added false informants in the period before an audit so that they could meet or exceed their prescribed quota. [ 38 ]

Having examined, in some detail, three of the most important ways in which nations can come to terms with their past, it is perhaps fitting to conclude this entry by considering the possibility that nations do not attempt such a reckoning. Is there anything to be said for forgetting in the aftermath of war? Is there an argument to recommend amnesia as the basis of a political transition? (for a detailed treatment see Rotondi and Eisikovits, forthcoming).

Most often, forgetting cannot serve as the basis for peacemaking. It is destructive on both the individual and collective levels. It compounds the suffering of individuals by forcing them to watch their tormentors walk around freely, reenter politics, or maintain their posts in public service and the military. All of this takes place while their own painful memories and traumas remain unacknowledged. Furthermore, policies advocating forgetfulness decrease the chances that victims will be compensated for their suffering. The most common institutional products of such policies are laws granting amnesty. Typically, under such amnesties, perpetrators are protected from both criminal charges and civil liability. Amanda Pike, a reporter for PBS' Frontline, tells a story which starkly demonstrates the cost of forgetfulness for individual victims. During a trip through the Cambodian province of Pailin, Pike came across Samrith Phum, whose husband was executed by the Khmer Rouge. Phum knows the murderer well. He is her neighbor and he operates a noodle shop across the street from her house. He was never arrested and never charged with her husband's murder. There is no procedure through which he can be sued for damages. Phum must simply get used to the idea that her husband's killer quietly manages his store next door (Pike 2002).

On the national level, a government advocating forgetfulness commits the political correlate of suicide: it undermines the ability of the group of people it governs to call itself a nation. The French thinker Ernest Renan (1882) defined a nation as consisting of

two things, which, in truth, are really just one…One is in the past, the other in the present. One is the possession in common of a rich legacy of memories; the other is current consent, the desire to live together, the willingness to continue to maintain the value of the heritage that one has received as a common possession.

Forgetting destroys both elements. It undermines the possibility of a common history by excluding an entire class of memories. At the same time, it obliterates the desire of formerly hostile parties to live together, or the possibility of social solidarity, by creating a bubbling, poisonous, pool of resentment among an entire group of people. [ 39 ]

Now Renan was far from naïve. He admits that “forgetting” and perhaps even “historical error” are essential in the creation of national identity. Later he adds that “the essence of a nation is that all individuals have many things in common and also that they have forgotten many things.” Descriptively, he is surely right. Heroic historiography and intentional forgetting was instrumental in creating American, Israeli, Turkish, Spanish, and French contemporary identities, to mention but a few. But identities based on amnesia are rarely stable. Israel's new historians, the countless young Armenians lobbying parliaments all over the world to recognize the Armenian genocide almost a century after it took place, and the recent Spanish “Historical Memory Law” (2007) all attest that it is difficult to simply bury the past. If the groups that have been forgotten are not annihilated, their painful memories continue to fester until they eventually erupt in renewed conflict.

But what if all parties involved in a conflict really want to forget? What if there is a tacit or explicit agreement not to dwell on the past? What are we to make of Mozambique, for example, where in the aftermath of a long, bloody civil war, the combatants actively elected not to address past atrocities? In her superb book on truth commissions, Hayner (2002) describes an election rally in post-war Mozambique in which a candidate was literally chased out of a hall for bringing up the conflict. Can we really make a normative argument for remembering if both sides freely chose to forget? One possible way to make such an argument is by analogy. It is quite clear to us that, in the domestic context, the fact that two sides to a conflict agree to bury the hatchet does not preclude their prosecution by the criminal justice authorities. Thus, if two neighboring families become entangled in a massive brawl, during which property on both sides is destroyed, and some injuries are sustained, the District Attorney's office may decide to issue indictments, even if all of those who did the fighting would like to put the whole incident behind them. The criminal law is not a private matter completely at the discretion of citizens. The public has a stake in upholding the criminal law, and is understood to be an interested party whenever it is broken. After all, in the example provided above, wider interests were compromised: traffic may have been disturbed by the fighting, the small children of other neighbors may have been watching, publicly funded hospitals may have been called on to treat the injured, reports of the fight may have made their way into the news media bringing down house prices, etc. In short, the fight, almost any fight, has repercussions for third parties. That is why, in important ways, such fights are everyone's business. And that is why criminal cases are typically titled Commonwealth vs. Jones rather than Smith vs. Jones.

Is there an analogous argument to be made about the aftermath of political conflict? Are there any third party interests that may justify some kind of reckoning with mass atrocity, even if all of those involved would freely choose to put the past behind them? Fully answering this question is beyond the scope of this entry, so we shall simply gesture at some of the difficulties that need to be addressed in order to do justice to it.

First, who are the third parties whose interests are implicated by a decision on the part of two warring parties to bury the past? Could we argue that, given the intense media coverage given to political conflicts, a failure to address massive violations of human rights in location X (for whatever reason) may endanger human rights in location Y (by, say, bolstering the confidence of would be perpetrators)? If so the third party could be described, vaguely, as the international community, a community with a serious interest in creating a robust culture of human rights wherein violations are documented and addressed rather than simply ignored.

Second, even if we agree that there are interested third parties in the international context, how could such parties ensure that their interests are protected? What sort of enforcement power do they have? Here the answers are both legal and political. The nascent International Criminal Court may be used in cases where its authority comes into play. Perhaps more significantly, the international community (or, more specifically, the most powerful international players) may resort to political pressure. After all, countries such as Mozambique, emerging from prolonged wars, are desperately dependent on international aid. Donor countries could, accordingly, make aid contingent on the addressing of past atrocities.

When all is said and done, it appears that the main difference between the domestic and international cases has to do with the consequences of the decision whether to use the courts. While in the domestic arena a failure to prosecute can result in increased cynicism about the law (and eventually in a weakening of the rule of law), imposing accountability in the aftermath of war may, under some circumstances, reignite violence. Insisting on doing justice in such cases recalls Lord Mansfield's famous dictum in the 1772 Somerset case: that justice must be done “though the heavens may fall.” The trouble, of course, with this Kantian pronouncement is that there is no one to reap the fruits of justice after the heavens have fallen.

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cosmopolitanism | nationalism | responsibility: collective | rights: human | torture | war | world government

Acknowledgments

I am grateful to Thomas Pogge and to Greg Fried for their comments and encouragement. Thanks are also due to my research assistants at Suffolk University, Michael McDonough, Josef Nothmann and Marcus Taylor.

Copyright © 2014 by Nir Eisikovits < nir . eisikovits @ umb . edu >

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Article contents

Gender and transitional justice.

• Maria Martin de Almagro Maria Martin de Almagro University of Ghent
•  and  Philipp Schulz Philipp Schulz Institute for Intercultural and International Studies, University of Bremen
• https://doi.org/10.1093/acrefore/9780190846626.013.669
• Published online: 19 October 2022

Transitional justice (TJ) refers to a set of measures and processes that deal with the legacies of human rights abuses and violent pasts, and that seek to aid societies transitioning from violence and conflict toward a more just and peaceful future. Much like the study of armed conflict and peacebuilding more broadly, the study and practice of transitional justice was traditionally silent on gender. Historically, gendered conflict-related experiences and harms have not been adequately addressed by most transitional justice mechanisms, and women in particular have been excluded from the design, conceptualization, and implementation of many TJ processes globally. While political violence perpetrated against men remained at the center of TJ concerns, a whole catalogue of gendered human rights abuses perpetrated primarily against women has largely remained at the peripheries of dominant TJ debates and interventions.

Catalyzed by political developments at the United Nations within the realm of the Women, Peace, and Security (WPS) agenda and by increasing attention to crimes of sexual violence by the International Criminal Tribunal for Rwanda (ICTR) and the former Yugoslavia (ICTY), however, the focus in the 2000s has been radically altered to include the treatment of gender in transitional contexts. As such, considerations around gender and sex have increasingly gained traction in TJ scholarship and praxis, to the extent that different justice instruments now seek to engage with gendered harms in diverse ways. Against this background, to the authors review this growing engagement with gender and transitional justice, offering a broad and holistic overview of legal and political developments, emerging trends, and persistent gaps in incorporating gender into the study and practice of TJ. The authors show how gender has been operationalized in relation to different TJ instruments, but the authors also unearth resounding feminist critiques about the ways in which justice is approached, as well as how gender is often conceptualized in limited and exclusionary terms. To this end, the authors emphasize the need for a more sustained and inclusive engagement with gender in TJ settings, drawing on intersectional, queer, and decolonial perspectives to ultimately address the variety of gendered conflict-related experiences in (post)conflict and transitional settings.

• transitional justice
• truth and reconciliation commissions
• queer perspectives
• structural violence
• criminal courts
• reparations
• gender justice
• masculinities
• sexual and gender-based violence (SGBV)

Gender and Transitional Justice: An Overview

In July 2020 , the United Nation’s Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of nonrecurrence issued a report on gender perspectives in transitional justice (TJ), which “considers multiple aspects of adopting a gender perspective in transitional justice processes” ( United Nation’s Special Rapporteur, 2020 , p. 4). This report came at a time when there had been much progress in gendering peacebuilding and transitional justice work ( Weber, 2021 ), but also when gender sensitivity in transitional justice work still remained elusive ( Ní Aoláin, 2019 ) and numerous gendered blind spots persisted in delivering justice for various gendered conflict-related harms and experiences.

Much like the study of armed conflict more broadly ( Sjoberg, 2016 ), the field of transitional justice was traditionally silent on gender ( Buckley-Zistel & Stanley, 2012 ; O’Rourke, 2013 ), leading feminist scholars to pose the question of “where are women, where is gender and where is feminism in transitional justice?” ( Bell & O’Rourke, 2007 , p. 23).

Partly in response to these questions, there has been a radical shift in viewing the role of gender in transitional justice, which has witnessed an increasing feminist curiosity ( Enloe, 2004 ) about gender justice in postconflict transitions ( Buckley-Zistel & Stanley, 2012 ). As such, considerations around gender and sex have increasingly gained traction in the growing TJ literature, to the extent that as of the early 21st century , gender constitutes “a burgeoning focus of investigation within TJ scholarship and practice globally” ( O’Rourke, 2017 , p. 117). For one, considering gender is important for participation and representation ( O’Rourke, 2013 ) in terms of ensuring equal participation and involvement of men, women, and persons with diverse sexual orientations, gender identities, and expressions and sex characteristics (SOGIESC) in the design and implementation of these processes—for instance, as active protagonists and beneficiaries but also as witnesses. At the same time, incorporating gender lenses and perspectives is crucial for broadening conceptions of gender, peace, and security ( Rees & Chinkin, 2015 ) and the types of violence addressed by different TJ processes—including, for instance, gendered socioeconomic harms ( Lai, 2020 ) or gender-based violence ( Aroussi, 2011 ). In particular, women’s movements around the world have led important efforts to ensure that gender justice is put at the center of political, legal, and humanitarian agendas of transitional justice ( Bell & O’Rourke, 2007 , p. 24); that sexual violence is considered a war crime ( Aroussi, 2011 ); and that transitional justice also addresses social, economic, and cultural rights, as well as collective rights to socioeconomic development ( Roht-Arriaza & Mariezcurrena, 2006 ). Collective reparations are based on a redistribution of resources and wealth to the most marginalized, and the concept extends the definition of “victims” not only to include those physically affected but to compensate for the social effects of war, such as hunger, disease, or forced displacement to which women are particularly vulnerable. In policy terms, much of this engagement with gender and transitional justice unfolds within the realm of the U.N. Women, Peace, and Security Agenda (WPS), spearheaded by United Nations Security Council Resolution 1325 , which, inter alia, focuses on access to justice, the rule of law, and the investigation and prosecution of wartime sexual violence ( Martin de Almagro, 2017 ).

Yet, despite this increasing engagement with gender, Fionnuala Ní Aoláin has reminded us that gender lenses and a “feminist presence in transitional justice is complex, multilayered and still in the process of engagement”( Ní Aoláin, 2012 , p. 205). As such, 15 years after Bell and O’Rourke’s call for feminist theorizing in TJ, “gender parity remains elusive in transitional justice implementation” ( Ní Aoláin, 2019 , p. 1), and numerous gendered blind spots persist. As such, various gendered experiences remain largely unaccounted for in the implementation and practice of dealing with the past, and existing TJ processes across the globe have largely fallen short in advancing actual transformations for women. In particular, structural forms of gender-based violence and discrimination, rooted in patriarchal value systems, need to be engaged with more comprehensively by TJ processes to continue to address violence across time and space, spanning from conflict to peace and beyond ( Cockburn, 2008 ). At the same time, an engagement with gender in transitional justice must be broader and more inclusive, moving beyond a singular focus on women (and on sexual violence against women, in particular) to also include masculinities and queer perspectives.

The objective of this article is to offer a concise yet comprehensive overview of developments and debates in scholarship and policymaking concerning gender and transitional justice. As such, the article aims to provide a state-of-the-field assessment of how an incorporation of gender into transitional justice processes and debates has unfolded since 2000 , and what gendered blind spots, gaps, and avenues for further engagement nevertheless persist. To this end, the section titled “ Historical, Political, and Legal Advances in Transitional Gender Justice ” will discuss the key historical and legal advances in transitional gender justice in a post-Cold War context. The section titled “ Gendering Transitional Justice Instruments ” then outlines how different transitional justice mechanisms have tried to deal with gender specific harms and women’s experiences from war, in retributive justice, truth seeking, and reparation processes. Based on this overview, the section titled “ Reparations ” offers dominant feminist critiques of these advances to transform women’s lives before moving on to an assessment of persisting gendered blind spots with regard to masculinities and queer perspectives in TJ. The article concludes by proposing some new avenues and strategies for transformative transitional gender justice.

Historical, Political, and Legal Advances in Transitional Gender Justice

Broadly referring “to the set of measures implemented [. . .] to deal with the legacies of massive human rights abuses” ( de Greiff, 2012 , p. 34) in the aftermath of armed conflicts or authoritarian regimes, the study and implementation of transitional justice (TJ) has significantly expanded and globalized since the beginning of the 21st century ( Teitel, 2015 ). Transitional justice mechanisms and institutions thereby seek to redress past wrongs, institutionalize the rule of law, and construct new legal and normative frameworks in postconflict contexts or in societies that have dealt with occupation or authoritarian regimes so as to prevent violent conflict from reemerging. Traditionally, transitional justice measures are a set of judicial and nonjudicial instruments and mechanisms, such as trials, truth commissions, lustration, or memorials. The aims of TJ are thereby often linked to the normative objectives of democratization, nation-building, and the primacy of the rule of law but also fostering a free market economy ( Rees & Chinkin, 2015 , p. 1012). This approach is embedded within a liberal peacebuilding model ( Sriram, 2014 ), which often unfolds through a primary focus on civil and political rights placed over an engagement with socioeconomic and cultural rights ( Hamber, 2016 ).

While there is not a predetermined set of standards on how and where transitional justice should be applied, the practice of TJ has frequently been critiqued for following a standardized toolkit or “one-size-fit-all” approach ( Sharp, 2013 ). At the same time, various scholars have emphasized that TJ mechanisms and their implementation must vary depending on geographical contexts ( Teitel, 2003 , p. 76), hence requiring a localization and contextualization of TJ processes ( Shaw & Waldorf, 2010 ). These dynamics in many ways also apply to the ways in which gender perspectives in TJ are conceptualized and understood, which often follow a standardized procedure but neglect the locally-contingent meanings of “justice” and “gender” in different geopolitical regions ( Schulz, 2019 ).

While many of the foundations of TJ date back to the post-World War II Tokyo and the Nuremberg criminal tribunals, the first time the actual concept of TJ was used was in the context of the collapse of the Soviet Union in the late 1980s and the reordering of geopolitical dynamics in Africa, South and Central America, and Eastern Europe ( Bell, 2009 , p. 7). Whereas certain countries descended to civil wars, particularly on the African continent, others started transitioning from authoritarian to democratic rule. This is important because since then, there has been a normative assumption that transitional justice needs to ensure the basis of a peaceful transition toward Western-like democracies based on liberal individualism ( Arthur, 2009 ; Rees & Chinkin, 2015 , p. 1212; Teitel, 2003 , p. 75). This historical origin has conditioned the horizon of possibilities of what justice means and which kind of measures are necessary to ensure it. While prosecutions, truth-telling commissions, reparations, and institutional reform of authoritarian and centralized states were deemed necessary, distributive socioeconomic justice was not ( Arthur, 2009 , p. 326). This liberal notion of justice has gendered and gendering consequences, as the discussion to unfold throughout this article demonstrates.

Over the decades, then, the study, praxis, and implementation of transitional justice in many ways experienced its own transition ( McEvoy, 2007 ), emerging from its initially exceptionalism origins toward becoming a standardized, institutionalized, and globalized practice ( Teitel, 2015 ). As such, transitional justice expanded to include a whole variety of processes, measures, and instruments, and to be applied to a wide range of violence-affected situations. Not only the points of departure, however, but also the end-goals of transitional justice processes are increasingly recognized as being more diverse than initially assumed, and transitional justice has been increasingly emancipated from the bonds of the assumingly linear transition from war to peace ( Sharp, 2013 ), which cannot live up to the complexities and nonlinearity of lived realities in times of violence, conflict, and peace ( Hamber, 2008 ). As part of this expansion process, transitional justice has over the years also been increasingly localized ( Shaw & Waldorf, 2010 ), turned its attention to (post)colonial dynamics ( Bueno-Hansen, 2015 ) or to socioeconomic aspects ( Lai, 2020 ), and has also become more attentive to the gender dynamics of political transitions ( O’Rourke, 2013 ).

Historically, however, the experiences of women have not been adequately addressed by transitional justice mechanisms and processes. Women experience direct violence, such as sexual violence, domestic and sexual slavery, forced displacement, and forced marriage. They also have more difficulties rebuilding their lives after war because gender norms and traditional women’s societal roles make it difficult for women to access property, land, and jobs, as well as health and education services. Nevertheless, the gendered nature of direct and structural violence as well as different gendered experiences that men, women, and people with diverse gender identities faced during war have rarely been a concern of transitional justice projects ( Fobear, 2014 ; Franke, 2006 ).

In terms of design and procedure, the first decades of transitional justice processes did not provide sufficient participation and representation of women and minorities ( O’Rourke, 2017 ). This led to the reproduction of patriarchal logics and discourses about what transitional justice is for, and what human rights violations and crimes should be addressed and how ( Ní Aoláin, 2012 ). While political violence most suffered by men has been at the center of transitional justice, the systemic violence most commonly experienced by women—such as poverty, internal displacement, lack of access to public infrastructure, and unequal access to land, employment, or education ( Martin de Almagro & Ryan, 2019 )—was not recognized or redressed ( Ní Aoláin, 2009 ; Weber, 2021 ).

While much of an engagement with gender in transitional justice has taken place in scholarship evidenced through a growing body of literature (see Fobear, 2014 ; Franke, 2006 ; Ní Aoláin, 2012 ; O’Rourke, 2013 ), there are also legal, normative, and political developments that have addressed gender and transitional justice. Much of this policy engagement is unfolding within the realms of the United Nations Security Council and its mandate to maintain international peace and security, and specifically under the umbrella of the U.N. Women, Peace, and Security (WPS) framework ( Martin de Almagro, 2017 ). As a result of intensive efforts by a transnational coalition of women’s movements and feminist organizations, the agenda specifically calls for increased representation of women in decision making at all levels in the prevention, management, and resolution of conflict; the protection of women’s rights in conflict; the prevention of violence against women in conflict; and the importance of gender-sensitive humanitarian assistance, relief, and recovery ( Aroussi, 2011 ). Under this mandate, the WPS agenda also specifically engages with gender and transitional justice, which comprises a vast set of tools to fight against gender injustices ( Martin de Almagro, 2017 ). For instance, United Nations Security Council Resolution (UNSCR) 1888 focused on access to justice; the rule of law, legal; and judicial reforms; investigations; and prosecutions specifically for victims of wartime sexual violence. UNSCR 2106 specifically asked to punish sexual violence in conflict, and UNSCR 2242 recommended “reparation for victims as appropriate” ( United Nations Security Council, 2015 , p. 7), while reminding that the Security Council can enact sanctions against those who commit conflict-related sexual violence. The Global Study on the Implementation of UNSCR 1325 also called on the United Nations and its member states to “prioritize the design and implementation of gender sensitive reparations programs with transformative impact” ( UN Women, 2015 , p. 124).

Similarly, the resolution of the U.N.’s Human Rights Council that in 2011 established the mandate of the Special Rapporteur on Truth, Justice, Reparation, and Guarantees of Non-Recurrence—through which much of the U.N.’s engagement with transitional justice unfolds—specifically referred to gender, emphasizing that the Special Rapporteur must integrate gender lenses throughout its work (see O’Rourke, 2017 ). Outside the realm of the United Nations, the monitoring Committee of the Convention and Elimination of All Forms of Violence Against Women (CEDAW) similarly developed normative guidance in gender and transitional justice. As Catherine O’Rourke observed, “the Committee’s General Recommendation Number 30 on the rights of women in conflict prevention, conflict and post-conflict situations calls on state parties to address transitional justice mechanisms as part of broader activities to ensure women’s access to justice” ( O’Rourke, 2017 , p. 125). However, the U.N. Special Rapporteur was only established in 2011 , and the CEDAW general recommendation 30 was adopted in 2013 , signaling how TJ as a matter of international peace and security in general, as well as attention to gender and TJ specifically, has become increasingly mainstreamed since the early 2010s.

Gendering Transitional Justice Instruments

As a result of these cumulative efforts, then, gender lenses have been increasingly incorporated into and applied to the different aspects, mechanisms, and instruments of transitional justice, as reviewed throughout this section, structured along retributive and criminal justice, truth-seeking efforts, reparations, and bottom-up TJ mechanisms.

Retributive Justice and Criminal Courts

Much of the engagement with gender in transitional justice unfolds within the context of criminal courts and tribunals, with an emphasis on responding to wartime sexual violence through criminal accountability and retributive justice ( Aroussi, 2011 ; Campbell, 2004 ; Schulz & Kreft, 2022 ). This emphasis on criminal justice thereby mirrors larger trends in TJ, whereby criminal retribution and legal punishment still often are seen as ultimate responses to crimes ( Fletcher & Weinstein, 2002 ).

Since the late 1990s and early 2000s, notable progress has been made toward an engagement with gender in international criminal law ( Chappell, 2011 ). Progressive developments by the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR) in the 1990s contributed toward the recognition of crimes of rape and sexual violence as constitutive of war crimes, crimes against humanity, and genocide ( Mibenge, 2013 ). Throughout the literature, these two ad hoc tribunals are generally credited with the responsibility for the contemporary evolution of jurisprudence on conflict-related sexual violence ( Haffajee, 2006 ), and are seen as having established landmark and precedence cases concerning sexual violence.

These developments also set the precedent for other hybrid tribunals—such as the Special Courts for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC)—as well as the permanent International Criminal Court (ICC), which has heard several cases that include charges of sexual and gender-based violence (SGBV; Chappell, 2014 ). Since 2014 , prosecuting gender-based violence (GBV) has been among the ICC’s Office of the Prosecutor’s (OTP) key strategic goals, reflected in the “Policy Paper on Sexual and Gender-Based Crimes.” Since then, as of 2018 , 16 out of 23 cases pending at the International Criminal Court have included charges of SGBV. This process of ensuring accountability for conflict-related sexual violence (CRSV) is important, and has “contributed toward documenting the patterns and dynamics of sexual violence” ( Schulz & Kreft, 2022 , p. 7) across contexts, in addition to contributing to the development of international jurisprudence on sexual violence. At the same time, testifying in a court of law about their experiences of sexual abuse may for some survivors be healing, empowering, and a “cathartic process that equips them with a sense of agency and enables them to articulate their voices” ( Schulz & Kreft, 2022 , p. 13; see also Mertus, 2004 ).

Yet, despite growing attention, the track record of actually delivering justice for sexual violence survivors remains limited. And while the ICC’s conception of SGBV has broadened over the years to also include crimes of forced marriage and pregnancy alongside sexual torture or crimes of rape, the emphasis remains on sexual violence over other forms of gendered violence and discrimination. What is more, despite only a handful of exceptions, most proceedings involving sexual violence at international courts have focused on women survivors, but have tended to sideline sexual violence against men or against persons with diverse SOGIESC ( Schulz, 2020 ). Influenced by and in tandem with these developments in the international criminal justice arena, and in the interest of complementarity, there also is a growing collection of cases concerning CRSV at national and domestic courts—including for instance the Bosnian War Crimes Chamber, or courts in Guatemala, El Salvador, or the Democratic Republic of Congo ( Seelinger, 2020 ).

Despite much of this progress of investigating and prosecuting crimes of sexual violence, however, the existing caseload of successful convictions remains limited at best. This in many ways mirrors the “justice gap” for SGBV that persists not only in (post)conflict settings but more widely across time and space ( McGlynn & Westmarland, 2019 ). In addition, feminist scholars in particular have identified various legal, political, technical, and gendered shortcomings of criminal proceedings. As such, Houge and Lohne (2017) have cautioned that treating CRSV simply as “a problem of law” overlooks more structurally-engrained forms of violence and discrimination, as well as potential alternative justice conceptions and mechanisms. A growing body of scholarship has also identified more practical limitations, evidencing victims’ and survivors’ dissatisfaction with criminal justice processes ( Henry, 2009 ). This body of work takes note of the fact that many survivors feel “footnoted” in the proceedings, silenced, deprived of any agency ( Mertus, 2004 ), or revictimized ( Franke, 2006 ; see Schulz & Kreft, 2022 ). Focused on the ICTY, Mertus showed that women’s agency during criminal proceedings was severely stunted, and that survivors of wartime rape who participated in criminal trials often felt “like [they were] shouting from the bottom of a well” ( Mertus, 2004 , p. 113). Drawing on an analysis of the SCSL, Kelsall and Stepakoff (2007) similarly showed how women who participated in the trials “were prohibited from speaking about the principal manner in which they were victimized [sexually] during the conflict” (p. 365), and how as a result, women’s experiences were removed from the Court’s records (see Mibenge, 2013 ). As such, “experience[s] of giving testimony [are] likely to be mixed” ( Henry, 2009 , p. 114), leading feminist scholars to question whether criminal proceedings constitute adequate means to deliver accountability for GBV ( Henry, 2009 ; Mertus, 2004 ; Otto, 2009 ).

Truth and Reconciliation Commissions

As an alternative to some of these structural limitations with regards to criminal justice, an emphasis on restorative justice, often in the form of Truth and Reconciliation Commissions (TRCs), has gained growing popularity over the decades—perhaps most notably in South Africa as well as across Latin America. In their broadest terms, truth (and reconciliation) commissions are entities that seek to establish facts, causes, and impacts of past human rights violations with a focus on victims’ and survivors’ testimonies, thereby seeking to provide recognition of harm and suffering.

The first Truth Commissions in Argentina, Peru, Guatemala, and South Africa did not include gendered harms in their terms of reference; but were instead focused on political crimes to the exclusion of ordinary and structural violence. In these proceedings, women’s testimonies were primarily limited as witnesses of harms committed between men. This had consequences not only for the lack of recognition of violence against women, but also for the ensuing policy recommendations and reparations identified as necessary in the TRC reports. As Sanne Weber (2021) noted, “Truth Commissions have historically tended to leave out women’s particular conflict experiences” (p. 214).

The South African Truth and Reconciliation Commission ( 1996–2003 ), established to deal with human rights violations of the apartheid system, was the first to adopt ad hoc gender-sensitive strategies such as holding special women’s hearings, creating gender-sensitive statement-taking protocols, and adding a chapter on women in the final report ( Fiske, 2019 ). After sustained advocacy from key women activists and even though it had not been part of the original plan, the Peru Truth and Reconciliation Commission ( 2001–2003 ) established a specific Gender Unit in charge of examining gendered and sexual patterns of violence, training staff on gender-sensitive approaches to truth and reconciliation, and leading a public hearing on women’s human rights. The Commission’s final report devoted two individual chapters to a gendered analysis of the conflict and the use of sexual violence against women. Nevertheless, the lack of an appropriate budget to support the activities of the Gender Unit prevented it from achieving much and many Peruvian activists saw it as a lost chance for a more systematic and transformative approach for enhancing women’s access to justice ( Nesiah et al., 2006 ).

Later TRCs included a focus on gender in their mandates and tried to actively understand how violence and oppression are gendered ( Bell & O’Rourke, 2007 , p. 28). In particular, the Truth Commissions of Sierra Leone ( 2002–2004 ) and East Timor ( 2002–2005 ) are regarded as best practices. Their reports in 2004 and 2005 included a stand-alone chapter on gender and sexual violence, as well as recommendations for reparations ( Nesiah et al., 2006 ). Furthermore, the Sierra Leone TRC’s procedures for engagement with women were also gender-sensitive. First, it proactively looked for women testimonies, offering material support and counseling for those willing to testify. Second, women could choose whether to provide written or oral testimony and whether to testify at an open or closed hearing. Third, the Commission trained specialized women statement takers to work with sexual violence victims. In general terms, Truth Commissions have been criticized for overtly focusing on sexual violence, and for not taking into consideration how women often face the socioeconomic consequences of conflicts. In the context of the Sierra Leone TRC (SLTRC), however, sexual violence and abuse were the terms of reference under which women could testify as victims, and even though the SLTRC was determined “to capture the experiences of both women and girls in respect of sexual violence, as well as their complete gendered experiences at a political, legal, health and social welfare level” ( Sierra Leone Truth and Reconciliation Commission, 2004 , p. 87), the commission’s final report focused mainly on rape and other sexual violence crimes committed against women during the conflict. As such, both truth commissions and courts have been criticized for their singled-issue focus on sexual violence at the expense of the complex nature of gender violence in conflict-affected settings.

In addition to these formalized and institutionalized truth commissions, more informal and/or grassroots-level, truth-seeking, and historical memory processes have evolved across a number of conflicts, including most prominently the Gacaca courts in Rwanda ( Bronéus, 2008 ), but also Colombia’s National Centre for Historical Memory , and the National Memory and Peace Documentation Centre (NMPDC) in Uganda. These and similar efforts across contexts document and preserve conflict-related experiences and enable survivors to share their experiences in often more informal processes, thereby at times offering more space for diverse stories. At the same time, these informal efforts are also often structured around heteronormative conceptions of gender, thereby restricting the space of what experiences can be openly talked about, and have also been experienced as retraumatizing and threatening by women giving testimony ( Bronéus, 2008 ). This mirrors shortcomings of criminal tribunals as discussed in the subsection “ Retributive Justice and Criminal Courts ,” and of bottom-up transitional justice mechanisms as discussed in the section “ Reparations .”

Reparations

Reparations are typically portrayed to be among the most victim-centric elements of transitional justice ( Hamber, 2008 ). As emphasized by de Greif, reparations provide financial or other material compensations, such as property restitution as a form of corrective justice, obliging the wrongdoer to provide goods to the victim so that the latter find themselves in the original position before the harm ( de Greiff, 2008 , p. 435). In practice and implementation, the U.N. Basic Principles and Guidelines on the Right to a Remedy and Reparation ( 2005 ) lists five components of reparations: (a) restitution, (b) compensation, (c) rehabilitation (including access to medical and psychological care), (d) satisfaction and, (e) guarantees of nonrepetition. Importantly, reparations not only imply material gains for survivors, but crucially “can be profoundly meaningful to victims or survivors at a psychological level” ( Hamber, 2008 , p. 8). In this reading, reparations can be individual and/or collective, and material and/or symbolic ( Hamber & Palmary, 2009 ) as well as prospective and retrospective.

For the most part, however, reparations programs are not “designed with an explicit gender dimension in mind” ( Rubio-Marín et al., 2006 , p. 23), nor have they “focused on the forms of victimization that women are more commonly subject to,” including forms of CRSV. As Ní Aoláin et al. (2015) observed, global discussions aimed at ensuring accountability and ending impunity for CRSV have largely neglected and marginalized reparations.

However, reparations have been increasingly linked to sexual and gender-based violence. In March 2007 , international legal and gender experts and women survivors of sexual violence met in Nairobi (Kenya) to draft the Nairobi Declaration on the Right of Women and Girls to a Remedy and Reparation. The declaration is key because it sought to redefine reparations from a gendered perspective that makes visible the linkages between direct and structural violence. The declaration had two core principles: First, reparations should be transformative, go to the root causes of gender violence, and “must go above and beyond the immediate reasons and consequences of the crimes and violations; they must address structural inequalities that negatively shape women’s and girls’ lives” (Nairobi Declaration, supra n 3, Principle 3[h]). The second core principle is the participation and involvement of women at all stages of the planning, design, and implementation of reparations programs because the involvement of women in the reform of social structures will also lead to recognition and to political empowerment.

This emphasis on structural discrimination and transformation thereby speaks to some conceptual shortcomings of reparations, as well as a recent emphasis on transformational reparations within a broader shift from transitional to transformative justice ( Gready & Robins, 2019 ). As suggested by the Nairobi Declaration, a gender perspective indeed reveals that if reparative justice and reparations aim to quite literally repair conflict-related harms ( Hamber, 2008 ), this can potentially translate into a reconstitution of an unequal preconflict status quo (see Ní Aoláin et al., 2015 ; Rubio-Marín & de Greiff, 2007 ). In transitional and (post)conflict settings, this frequently implies a reparation of and return to hetero-patriarchal societal structures, characterized by vast gendered inequalities and the systematic discrimination of women ( Goldblatt & Meintjes, 2011 ). Rather than transforming unequal gendered and intersectional structures—which may have given rise to conflict and violence in the first place—reparations thus risk reinstating that status quo, thus reinstating patriarchy.

Since then, there has been growing attention within scholarship and policymaking ( Duggan et al., 2008 ; Ní Aoláin et al., 2015 ; Walker, 2016 )—evidenced for instance through the Global Survivors Fund, founded by the 2018 Nobel Peace Prize laureates Nadia Murad and Dr. Denis Mukwege, which seeks to enhance access to reparations for survivors of CRSV. In particular, the United Nations Secretary-General’s adoption of a Guidance Note on Reparations for Conflict-Related Sexual Violence ( 2014 ) marked an important turning point in the area of reparations for SGBV ( Ní Aoláin et al., 2015 ). At the same time, several of the U.N. Security Council resolutions that make up the WPS agenda, such as Resolution 2122 , repeatedly refer to reparations in response to gender-based violence.

This process of repairing preconflict structures specifically for women can often imply a return to an unequal gendered status quo ante and to inferior female subject positioning ( Buckley-Zistel, 2013 ). Rubio-Marín and de Greiff (2007) therefore urged that reparations programs need to ensure that they do “not conform to or contribute to the entrenchment of pre-existing patterns of female land tenure, education or employment” (p. 325). Further, most reparations programs primarily concentrate on civil and political rights, at the expense of other violations, including socioeconomic rights, many of which are often heavily gendered ( Rubio-Marín, 2009 ), thereby mirroring gendered trends and shortcomings in transitional justice more broadly ( Boesten & Wilding, 2015 ; O’Rourke, 2013 ).

As such, there are, as of 2022 , a handful of cases of reparations for gender-based crimes, for instance in the War Crimes Chambers in Bosnia ( Björkdahl & Selimovic, 2015 ), and by national courts in Sierra Leone and Guatemala, where “an urgent reparation scheme awarded one-off payments for survivors of sexual violence, together with medical treatment” ( Weber, 2021 , p. 221). In Guatemala, apart from the individual compensation to victims of rape in the case of Sepur Zarco, the judges ordered the construction of a health clinic in the village and the creation of an education scholarship fund for women and girls. In Mexico, the European Court for Human Rights (ECHR) and Inter-American Court of Human Rights (IACHR) and its “Cotton Field” judgement on femicide cases have contributed precedent-setting cases for the award of reparations in response to gender violence and harms ( Rubio-Marín & Sandoval, 2011 ) and, more precisely, for the development of gender-just transformation processes ( Ketelaars, 2018 ). As explained by Sane Weber (2021) , the Cotton Field judgement “stated that when violations were committed in a context of structural discrimination, reparations should aim to transform this pre-existing situation” (p. 222).

Colombia adopted a transformative approach to reparations and land restitution in its 2011 Victims’ Law. Since land titles are in their majority in men’s names, the Law provides for the allocation of joint land titles to men and women as a way to ensure a better social and economic security in case of divorce or of the husband’s death and in this way transforms gender inequality. In practice, however, transforming attitudes toward women and agricultural work are difficult to achieve and the agricultural projects that have accompanied land restitution in Colombia have focused on men’s agricultural work and have devalued women’s work as just family work to “help make ends meet” ( Weber, 2021 ), reinforcing rather than ending gender inequalities. What is more, most reparations programs globally focus on female victims at the neglect of male survivors and persons with diverse SOGIESC ( Schulz, 2020 ). As noted by Ní Aoláin et al. (2015) , “a limited understanding of who can be a victim of sexual harms means that violence against men is often unseen and unaccounted for when states and other international actors conceive and implement reparations” (p. 97). Challenges therefore remain to ensure that reparations can address the gendered manifestations of violence in their holistic occurrence, and that reparations can cement real gendered progress, in particular for conflict-affected women ( Rubio-Marín & de Greiff, 2007 ) as well as for sexual violence survivors of all genders ( Duggan et al., 2008 ; Ní Aoláin et al., 2015 ; Schulz, 2020 ).

In light of these conceptual and practical gaps of implementing reparations in response to gendered harms and violence, several scholars have emphasized that “a commitment to transformative reparations is critical to gender-sensitive reparations” ( Ní Aoláin et al., 2015 , p. 98; see also Kettelaars, 2018 ; Walker, 2016 ).Transformative reparations, especially in the context of redressing gendered violence, require “go[ing] beyond the immediacy of sexual violence, [and] encompassing the equality, justice and longitudinal needs of those who have experienced sexual harms” ( Ní Aoláin et al., 2015 , pp. 98–99).

Bottom-Up Transitional Justice Mechanisms

In the absence of concrete, tangible results for specific crimes committed against women, an array of civil society-led and locally-embedded mechanisms have seen the day. Much of this growing attention to processes at the grassroots and micro level is embedded within the so-called “local turn” in transitional justice ( Shaw & Waldorf, 2010 ), which has also increasingly engaged with gender ( Baines, 2010 ; Kent, 2014 ). As an illustrative example of such bottom-up initiatives, women’s tribunals have constituted a collective effort at putting women’s experiences of war and violence at the center of truth, justice, and reparation processes necessary to rebuild more gender just societies. In Kosovo, Albano–Kosovar women created an initiative of legal support for victims of sexual violence through the Kosovo Women’s Network, and joined forces with the Serb Women in Black Network Serbia to create the Women Peace Coalition on May 7, 2006 ( Kosovo Women’s Network, 2013 ). Together, they participated in the Women’s Tribunal, a regional initiative of restorative justice led by women survivors of conflict in Yugoslavia ( Mujika Chao, 2017 ).

In Northern Uganda, too—the context in which one of the authors primarily works—a variety of civil society-supported and locally-driven processes exist to deal with past human rights abuses ( Baines, 2007 ). While such processes catalyze a sense of justice on the micro level, in the absence of sufficient processes at the state or international level, however, such processes nevertheless also contain gendered challenges. In many conflict-affected societies—frequently characterized by masculine, patriarchal, and heteronormative constructions of gender—a turn to the local simultaneously often implies a geographical move toward, and a reinforcement of, largely masculinized, homophobic, and sexually conservative societal contexts, which raises challenges for the participation of and roles played by women and youths. For instance, Boege (2006) described how women and girls are often excluded from the administration of these measures and only “become the subjects of these decisions” (p. 16). In Northern Uganda, “the most visible proponents of traditional justice and the most visible participants in the ceremonies are male elders” ( Lonergan, 2012 , p. 1)—excluding women (and youth) from active roles and instead only passively subjecting them to these processes. With regard to the application of justice, Baines (2007) consequentially argued that “it is unlikely that mato oput [one of the most common traditional justice rituals] will be able to reflect [women’s] interests without significant modification” (p. 107).

In addition to gendered participation and involvement, a localization of justice likewise carries implications for the treatment of gendered conflict-related experiences, including women’s structural inequalities and crimes of sexual violence against women and men. In many conflict-affected societies, a localization of transitional justice measures likely implies that taboo and culturally stigmatized crimes of sexual violence against men fall outside the realm and framework of local means of delivering justice ( Schulz, 2020 ).

Feminist Critiques of Transitional Gender Justice

In light of this overview, and against the background of many of these shortcomings and gaps of extant approaches to gender and transitional justice as discussed in the section on “ Gendering Transitional Justice Instruments ,” feminist scholars, activists, and practitioners in particular have articulated profound and resounding critiques of transitional gender justice—which constitute the focus of discussion in this section. In particular, feminist perspectives on justice have argued that violence cannot be understood as separate, single acts, but rather as a continuum—as a manifestation of structural inequality and gendered power relations ( Braithwaite & D’Costa, 2018 ). Therefore, these perspectives have criticized transitional justice mechanisms’ focus on “extraordinary” violence during a specific historical moment—from the war declaration to the signature of a peace accord. They have argued that this focus renders invisible the complexities of individual and collective war experiences ( Bunch, 1990 ; Rao, 2001 ). This, in turn, impairs women’s access to justice ( Fiske, 2019 ). At the same time, a persistent focus of most TJ processes on women as passive, vulnerable victims overlooks and downplays the active roles and agency exercised by women in (post)conflict and transitional settings ( Björkdahl & Selimovic, 2015 ), thereby reinforcing essentialist gender stereotypes of female victimhood ( Enloe, 2000 ).

The Experiences of Violence

The differentiation between extraordinary and ordinary violence does not reflect women’s lived experiences during war and in postwar justice efforts and socioeconomic restructuring processes. First, this distinction has resulted in the reinforcement of harmful tropes about sexual violence committed in “ordinary” circumstances in conflict and postconflict settings ( Grewal, 2015 ) and has not addressed rapes and sexual violence committed by peacekeepers, (civilian) men from the same ethnic group, or from the victims’ own families and communities, or any other circumstances than those considered as rape as a strategic weapon of war perpetrated by enemy armed soldiers ( Fiske & Shackel, 2014 ).

Second, this false and binary differentiation between ordinary and extraordinary also ignores the fact that wartime violence is not only physical and direct, but rather is inherently relational and takes many forms, and that these cannot be separated in lived experiences ( Hozić & True, 2017 ). This is due to the fact that acts of violence are “dynamically connected through social, political and economic factors in the surrounding context” ( Krause, 2015 , p. 16). For example, many women become widowed during war and as a result are dispossessed of land and other resources in patrilinear societies ( Shackel & Fiske, 2016 ), are excluded from social life ( Yadav, 2016 ), and are vulnerable to further violence due to their precarious economic situation ( True, 2012 ). In addition, war also blurs the boundaries between production and social reproduction because violent conflict pushes both productive and reproductive activities into private spaces. For example, families need to go into subsistence production to access food and other basic goods; there is an absence of social or public spaces for childcare, healthcare, and the elderly; and the gendered, classed, and racial patterns of everyday violence get exacerbated by militarization and economic collapse ( Elias & Rai, 2019 ; Rai et al., 2019 ). Furthermore, this socioeconomic violence tends to be reproduced in postwar economic and political reforms by the national and the international community.

The Continuum of Violence

Feminist activists and scholars have pointed out that while sexual violence and rape during war have been recognized as crimes against humanity and war crimes, the persistence of physical, sexual, and gender-based violence in the aftermath of conflict is barely given any attention. Nevertheless, the consequences of war, such as a militarized society, impoverishment, unemployment, and posttraumatic stress disorder, as well as men’s feelings of inability to fulfill their perceived gender roles as providers and protectors of their families often lead to domestic and sexual violence ( El Bushra, 2003 ; Ní Aoláin et al., 2011 ; Rubio-Marín, 2009 ).

Furthermore, the focus on sexual violence has ignored that gendered violence takes many forms. For example, the lack of access to social services and infrastructure results in women taking the burden of reproductive work, while often being the only bread winners in separated or destroyed families. Ultimately, feminist have argued for a long time that in contexts of war and peace, transitional justice is “brought” to war-torn countries by the international community ( Nagy, 2014 , p. 217). However, looking at injustices and conflict-related violence also entails accounting for the role that international financial institutions and their postwar reconstruction projects play in reproducing wartime gender-based violence and preexisting economic inequalities through their politics of privatization, liberalization, and austerity ( Lai, 2020 ). The lack of a serious engagement with the socioeconomic legacies of the war and the justice claims deriving from it provokes the sidelining of access to health services, education, and job market policies to the benefit of macrostructural reforms and reconstruction projects of roads, airports, and other transport infrastructure ( Manjoo & McRaith, 2011 ; Martin de Almagro & Ryan, 2019 ; Ní Aoláin et al., 2011 ; Rubio-Marín, 2009 ).

Crucially, the justice model envisioned in liberal peacebuilding reforms often excludes redistributive demands as security and justice are defined in a state-centric manner ( Ní Aoláin, 2009 ), where the reintegration of the state in global markets provide further economic exploitation and exclusion of women through the reestablishment of traditional gender roles and feminized low-paying jobs ( Sassen, 2000 ). These concerns have evolved toward larger debates on redistributive policies and the role of states and markets in postconflict economies. Lai (2020) explained how postwar countries such as Bosnia-Herzegovina with a socialist past had social services available to support social reproduction while women were at work. These services disappeared once International Financial Institutions (IFIs) reconstructed the country according to liberal standards, entrenching gendered inequalities and injustices that the war brought with it. While women lost their jobs in the factories, had difficult access to food and water during wartime, and were responsible for the survival of the household, the IFIs reconstruction project did not redress but rather reproduced wartime socioeconomic violence. The transition post-Apartheid period in South Africa also marked a case in point: the South African government started implementing neoliberal policies that negatively affected black people in general, and women’s economic and social conditions in particular ( Hunter, 2007 ).

Feminist Solutions to Achieve Transformative Justice

In light of these dynamics, feminist analytical lenses underscore the continuities between (gendered) public and private violence; distinctions between prewar, war, and postwar violence; and physical to structural violence and inequalities ( Boulding, 1984 ; Enloe, 2000 ; Tickner, 1992 ; True, 2012 ). Such feminist takes contend that gender justice can only happen through the direct and substantive participation by ordinary people, and in particular conflict-affected women and girls ( Rees & Chinkin, 2015 ). Taking their participation seriously, these scholars have argued, will result in a broadening of transitional justice’s scope to include economic, social, and cultural rights ( Nagy, 2014 ; Rees & Chinkin, 2015 ). Feminist scholars thus have claimed that TJ measures should reflect transformative understandings of justice directed at ensuring that gender-based violence will not happen again and at tackling the inequalities, marginalizations, and exclusions that underlie and fuel wars ( Cohn & Duncanson, 2020 ; True & Hozić, 2020 ).

Therefore, for justice to be transformative, transitional justice mechanisms must also operate hand in hand with postwar reforms ( Lai, 2020 ; Martin de Almagro & Ryan, 2019 , 2020 ). As argued, many of the underpinning components of transformative justice, such as a commitment to challenge unequal status quos and structural (often gendered) inequalities as well as a prioritization of socioeconomic rights (see Sharp, 2013 ), have long been advocated for by feminist scholars (see Cockburn, 2008 ). In particular, “for women, periods of societal transition have to aim for the transformation of the underlying inequalities that provided the conditions in which [their] specifically gendered harms were possible” ( Boesten & Wilding, 2015 , p. 1); see also ( Davies & True, 2017 ). As outlined by Ní Aoláin (2019) , transformation and transformative (gender) justice “depend on the redistribution of formal and informal power” and a feminist “commitment to profoundly recalibrate power relationships” ( Ní Aoláin, 2019 , p. 150; also see Enloe, 2000 ). In this capacity, transformative reparations and remedies to conflict-related violations of socioeconomic or “subsistence” rights ( Arbour, 2007 ; Sankey, 2014 ) carry important implications for feminist projects of gender justice and women’s equality in transitional justice in particular ( Boesten & Wilding, 2015 ).

Inclusive Gender: Integrating Masculinities and Queer Perspectives on Transitional Justice

Despite this vastly growing and diversifying engagement with gender in the study of transitional justice, the dominant conceptualization of “gender” in transitional contexts effectively remains an incomplete and exclusive one. Indeed, discussions about gender and TJ often circle around how transitional processes can advance “gender justice” for female victims of violence ( Boesten & Wilding, 2015 ) and for women survivors of wartime sexual violence in particular ( Aroussi, 2011 ). According to these prevailing understandings, “gender” is often synonymous with “women,” and conflict-related experiences are only considered “gendered” when they represent and reinforce “the unequal position of women in society” ( Pillay, 2007 , p. 317). As argued by feminist anthropologist Kimberly Theidon (2007) , in transitional justice, “from gender hearings to gender units and gender-sensitive truth commissions, ‘adding gender’ is policy-speak for ‘adding women’” (p. 353). To illustrate, the implementation of transitional justice measures put forward in several resolutions of the WPS agenda also primarily understand “gender” as “women.” For example, the 2010 U.N. Secretary-General report on the implementation of UNSCR 1325 included both the “number and percentage of transitional justice mechanisms called for by peace processes that include provisions to address the rights and participation of women and girls in their mandates” and the “number and percentage of women and girls receiving benefits through reparation programs, and types of benefits received” ( United Nations Secretary General, 2010 , p. 48).

Without a doubt, owing to the pervasive and structural discrimination of women in conflict-affected and transitional settings globally and the marginalization of women’s perspectives and experiences throughout TJ scholarship and praxis, such a focus remains urgently needed ( O’Rourke, 2017 ). Yet, despite this importance, such a focus also reinforces the on-going exclusion of masculinities and queer perspectives throughout international relations (IR) and conflict research at large, and within the fields of peacebuilding and transitional justice in particular ( Bueno-Hansen, 2018 ; Duriesmith, 2016 ; Fobear, 2014 ; Hagen, 2016 ; Schulz et al., 2023 ). In fact, specific masculinities perspectives and careful consideration for men’s and boys’ experiences as gendered—as well as for the lived realities of persons with diverse sexual orientations, gender identities and expressions, and sex characteristics (SOGIESC; Daigle & Myrttinen, 2018 )—remain omitted from most gendered TJ analyses. This has slowly begun to change, and emerging critical research has increasingly called for attention to masculinities and SOGIESC questions in transitional justice scholarship ( Bueno-Hansen, 2018 ; Fobear, 2014 ; Hamber, 2016 ; Theidon, 2009 ). Yet, as one of the authors cautioned previously, “these few studies thus far exist primarily in silos, and are often characterized by an often unitary focus on either masculinities or sexual and gender minorities” ( Schulz, 2019 , p. 692).

Masculinities Perspectives

In their broadest sense, masculinities are socially constructed gender norms, specifically referring to the multiple ways of “doing male” within and across societies. The foundational work by R. W. Connell (1995) in particular teaches us about the multiplicities and variations of masculinities (in plural) as well as about the inherent power relations within and between masculinities and gender hierarchies more widely. Since the early 2000s, a growing body of literature has begun to pay critical attention to masculinities and their relations to and positioning in the global gender order ( Connell & Messerschmidt, 2005 ), and specifically in relation to armed conflicts ( Duriesmith, 2016 ). However, while a “fairly substantial amount of literature has been generated over the years regarding the forms of masculinity that emerge in times of armed conflict and war” ( Ní Aoláin et al., 2011 , p. 231), this has not yet sufficiently travelled toward postconflict and transitional contexts, with only few exceptions ( Hamber, 2016 ; Theidon, 2009 ). Tracing the marginalization of these intersections over a decade, Hamber (2007 , 2016 ) attested that masculinities perspectives in TJ scholarship presently find themselves in an embryonic state and are only gradually emerging. This is not to suggest, however, that TJ scholarship does not incorporate the voices and views of men. On the contrary, and as convincingly argued by feminist scholars, TJ can largely be seen as inherently dominated by masculine values and actors ( O’Rourke, 2017 ). What remains underdeveloped, however, is careful consideration for men’s experiences as gendered .

If and when there is engagement with masculinities in TJ contexts, this often unfolds against the backdrop of a violation-centric lens. That is, emerging research on masculinities and TJ focuses either on violent and militarized masculinities, so the violations they perpetrate; or on masculine vulnerabilities, and specifically on sexual violence against men, so the (sexual) violations perpetrated against men. A primary concern of this existing literature has centered around questions of how to disarm and transform violent masculinities in postconflict and transitional periods ( Cahn & Ní Aoláin, 2010 ), for instance through disarmament, demobilization, and reintegration (DDR) programming ( Theidon, 2009 ). This focus is underpinned by the argument that facilitating transitions from conflict to peace requires that militarized masculinities—embodied by (former) combatants—are successfully transformed. As Cahn and Ní Aoláin (2010) argued, one of the central quandaries for TJ and DDR processes “is how to undo the [violent] masculinities learned during wartime” and its wake (p. 118). Research by Theidon (2009) similarly centralized the importance of sustainably mobilizing former combatants to respond to the security challenges posed by them, as well as to the perceived loss of masculine privilege that often attends such processes. Theidon (2009) argued that “transforming the hegemonic, militarized masculinities that characterize former combatants can help further the goals of both DDR and transitional justice processes [. . .] to contribute to building peace on both the battlefield and the home front” (p. 34).

At the same time, however, previous research has also acknowledged the complexities and difficulties of these transformation processes due to the ways in which these masculinities constructions are socially embedded within patriarchal and nationalistic societal structures. In many ways, this focus on militarized masculinities is reflective of dominant research on men and masculinities within the context of war and insecurities more broadly, which has mostly examined the “violences of men” ( Hearn, 1998 ) and the linkages between certain forms of masculinities and the various forms of violence associated with them ( Myrttinen et al., 2017 ).

Another angle through which an engagement with masculinities has unfolded is based on attention to men’s vulnerabilities, and in particular to sexual violence against men and boys (SVAMB). For a long time, men’s experiences of sexual violence were often overlooked and “tailored intervention to address male-centred sexual harms remains exclusive and marginalized” ( Ní Aoláin et al., 2015 , p. 109). In practical terms, despite a handful of cases involving sexual violence against men in the international criminal justice arena, and in the context of some truth and reconciliation commissions (TRC) in Latin America, TJ instruments have thus far almost entirely turned a blind eye to the experiences of sexually violated men ( Schulz, 2020 ).

Despite this prevailing marginalization of sexual violence against men, emerging scholarship has begun to explore how socially constructed masculinities render men vulnerable to gender-based violence in the first place and how sexual violence impacts male survivors’ gendered identities as men in myriad ways ( Myrttinen et al., 2017 ; Schulz, 2020 ). Accordingly, there has also been some attention to the intersections between SVAMB and TJ in the form of growing engagement with the ways in which male survivors conceptualize justice in postconflict settings ( Schulz, 2020 ). Focused specifically on Northern Uganda, previous research by one of the authors has begun to highlight male survivors’ gender-specific justice needs and conceptions ( Schulz, 2019 , 2020 ), as well as how numerous gendered, cultural, and sociopolitical barriers often uphold a vacuum of justice and persisting impunity for those crimes committed against most male survivors of sexual violence globally. Paying attention to male survivors’ lived realities and their justice-related concerns, needs, and priorities is important to address some of the persisting gendered gaps and blind spots.

However, what arguably still requires further examination are the experiences of noncombatant and nonmilitarized civilian men, who arguably constitute the majority of men during most armed conflicts globally, as well as nonheterosexual masculinities, which are still largely rendered invisible by heteronormative frames of conflict and TJ ( Schulz et al., 2023 ). As such, a much needed avenue for further engagement is to consider “how hidden masculine cultures operate within a variety of hierarchies and social spaces ( Hamber, 2016 , p. 30).

Queer Perspectives

Paying sustained attention to masculinities, however, also bears the risk of reinforcing binary constructions of gender, which have been remarkably consistent throughout the study of armed conflict ( Sjoberg, 2016 ). To avoid this, careful consideration for gender and sexualities as fluid spectrums, for the elasticity of gender, as well as the inclusive recognition of people with diverse sexual orientations, gender identities, and expressions and sex characteristics (SOGIESC) is important to fully comprehend gendered understandings of conflicts and political transitions. These nonbinary experiences and perspectives, however, are only seldom taken into account in the context of conflict studies and peacebuilding in general ( Hagen, 2016 ) and in relation to transitional justice processes specifically ( Bueno-Hansen, 2018 ; Fobear, 2014 ). As summarized by McQuaid (2017) , “on the subject of the particular justice needs and harms experienced by sexual minorities, much current transitional justice scholarship remains silent” (p. 1). Katherine Fobear (2023) similarly attested that even though the field of transitional justice has grown substantially, including with regard to incorporating gender, the question of “what it would mean to better incorporate and engage with queer bodies and theory in transitional justice is still very relevant today” (p. 2; also see Fobear, 2014 ). Queer and queering in the context of this discussion serves as an umbrella term to recognize a variety of expressions, identities, and actions that disrupt cis-heteronormative frames based on strict and binary conceptions of gender and sexualities.

It would, however, be misleading to claim that there has been no movement within the field of TJ to queer it, thanks to critical interventions from scholars and activists alike ( Fobear, 2023 ). Many of these developments can be observed in relation to truth commissions ( Bueno-Hansen, 2023 ; Fobear, 2014 ) as well as processes of dealing with the past in Latin American contexts, “some of which have expanded their purview to include human rights investigations of violence against sexual and gender minorities” ( Schulz, 2019 , p. 701; see also Bueno-Hansen, 2018 ). Colombia in particular serves as a contemporary example of the precedent-setting work for the inclusion of persons with diverse SOGIESC and their experiences into TJ processes ( Oettler, 2019 ), for instance with the 2011 Victim’s and Land Restitution Law and its Victim’s Unit, which include “a differential approach that recognizes sexual orientation and gender identity” ( Bueno-Hansen, 2018 , p. 5). In Ecuador, too, a feminist-informed and gender inclusive approach contributed toward “a holistic understanding of sexual and gender-based violence,” including attention to violence against persons with diverse SOGIESC in the Truth Commission’s final report ( Bueno-Hansen, 2023 , p. 2).

However, to queer transitional justice processes, it is not enough to only address antiqueer violence directed against LGBTQI communities and people with diverse SOGIESC, but also to address and critically interrogate larger systems of homophobia, transphobia, patriarchy, and heteronormativity ( Bueno-Hansen, 2018 ; Fobear, 2023 ). To this end, critical scholars have argued for the need of queer, intersectional, and decolonial approaches ( Bueno-Hansen, 2018 ; Ní Aoláin & Rooney, 2007 ) that expose “how institutionalized categories and identities are used to regulate and socialize” ( Fobear, 2023 , p. 6), and that would contribute toward circumventing the neoliberal and heteronormative foundations of TJ. In combination, this triangulation of queer, intersectional, and decolonial analytical lenses to examine queer lived realities can challenge the hetero- and cis-normativity of the field ( Bueno-Hansen, 2018 ; Hagen, 2016 ), and can thus contribute toward a more inclusive understanding of gender in the context of TJ. Nevertheless, across time and space, states’ accountability to address systematic forms of violence against persons with SOGIESC and to push for greater inclusion remains severely limited—consequentially requiring further engagement and advocacy to push the conversation forward by focusing on greater engagement across different spheres and for a variety of populations in transitional settings ( Fobear, 2023 ).

Ways Forward: Toward More Comprehensive and Inclusive Conceptions of “Gender” and “Justice”

This article has offered an overview of transitional (gender) justice mechanisms and their limitations and has put forward questions as to whether transitional justice and its “formulaic approach” ( Rees & Chinkin, 2015 , p. 1211) can ever succeed in changing women’s and other marginalized population’s lives. Without a doubt, much progress has been made in gendering transitional justice processes, and gendered harms have received increasing attention in the international policy arena. However, several shortcomings persist in effectively addressing gendered conflict-related experiences and in advancing transformations for women. When it comes to the implementation of transitional justice, all too often gender remains an afterthought, and is often implemented through a typical “add women and stir” approach—which in turn falls short in fully understanding the ways in which gender permeates all aspects of social and political life, including of armed conflicts and political transitions.

In light of these limitations and shortcomings, then, more needs to be done to address gender in postconflict and transitional spaces. This includes a move beyond transitional justice toward transformative justice, for instance in the form of transformative reparations to ultimately address gendered and patriarchal structures and root causes of violence and conflict and contribute toward more gender-just societal structures. Gendering transitional justice also requires going beyond a conflation of “gender” with “women,” to instead fully consider the full spectrum and elasticity of gender in the form of paying more sustained attention to masculinities and queer experiences and perspectives. To gain a more complete picture of gender in transitional justice and to ultimately advance this progress in practical turn, relational, intersectional, de-colonial and queer approaches are required that take into account the ways in which gender intersects with other identities and forms or exclusions and discrimination. Such approaches, then, also hold the potential to move beyond neoliberalized notions of justice (and gender) that dominate the study and practice of transitional justice, and to instead think of justice in more relational and creative terms.

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In the aftermath of mass atrocities, communities grapple with the complex challenge of healing and seeking justice. The Carr Center's Transitional Justice Program stands alongside them, conducting vital research to understand the effectiveness of different approaches like prosecutions, truth commissions, and reparations.

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Ryan Family Professor of Human Rights Policy  

Phuong Pham

Associate Professor in the Department of Global Health and Population Harvard T.H. Chan School of Public Health

Patrick Vinck

Assistant Professor in the Department of Global Health and Population Harvard T.H. Chan School of Public Health

Geoff Dancy

Associate Professor of Political Science University of Toronto

Justice and Accountability Index

After mass atrocities, communities grapple with healing and seeking justice. The Transitional Justice program is responding by creating the groundbreaking Justice and Accountability Index. This unique tool gathers data from real-world examples in ten countries that have experienced conflict and authoritarian rule. It analyzes how different approaches to transitional justice, like trials, truth commissions, and reparations, actually work. This information empowers survivors to fight for what they need, policymakers to create better approaches, and researchers to learn more. Only once we have data on the effectiveness of transitional justice can we truly begin to support survivors and give policymakers a clearer understanding of what measures can be taken to prevent future violence.

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The 2023 godkin lecture with president juan manuel santos of colombia, the birth of u.s. human rights policy, transitional justice in colombia.

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Transitional Justice in South Africa

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Long Night's Journey into Day: South African's Search for Truth and Reconciliation

Germany is not alone in having had to navigate the transition from war to peace and from a society marred by hatred and discrimination to one striving for more democratic values. In the decades since the end of World War II, many other places—from South Africa to Northern Ireland, from Rwanda to Cambodia—have faced similar struggles. For a society that has been through a period marked by genocide or systematic violations of human rights, enormous challenges are involved in trying to achieve stability, justice, and peaceful coexistence. 

The term “transitional justice” describes a set of approaches that communities can use to move toward a lasting peace. Transitional justice typically has three key elements: ensuring accountability for crimes and atrocities, establishing truth, and fostering reconciliation. What does transitional justice look like in practice? Judicial actions, like trials for war crimes and crimes against humanity, are a key part of seeking justice; so are reparations. Official apologies, government reforms, memorials, and education also have roles to play. Since the 1970s, truth commissions have become one of the most widespread components of transitional justice. Of the more than 40 such commissions dealing with violence and abuses of human rights, South Africa’s Truth and Reconciliation Commission (TRC) is perhaps the best known.

In 1994, after nearly 50 years of apartheid and hundreds of years of racial violence and oppression, South Africa made a peaceful transition to a more democratically elected government, from one based on elections in which only whites were permitted to vote. Apartheid, created by the white National Party and based on the system of segregation that arose after Europeans colonized the area, affected every aspect of life, from where people lived and the conditions of their housing, to where they went to school and the kind of education they received, to whom they could marry. Apartheid meant total separation by color. Black South Africans had the worst of housing and health care and the lowest-paid jobs. Whites enjoyed a disproportionate share of resources, including access to the best living areas, access to the best and most well-equipped schools and best-trained teachers, and access to the best-paid jobs. Apartheid was enforced with brutal violence as well as shame and humiliation. Though it was run by the government, it required the participation of the white citizens. South African Anglican Archbishop Desmond Tutu described living under apartheid this way: “Your dignity is not just rubbed in the dust. It is trodden underfoot and spat on. Our people are being killed as if they were but flies. Is that nothing to you who pass by?” 1

As the apartheid era ended, South Africa’s interim constitution suggested the creation of some sort of reconciliation process as an alternative to prosecutions or trials. A truth commission was set up in 1995 to establish a public record of the apartheid years through the voices and experiences of both victims and perpetrators. Its sessions were widely covered by the media: newspapers, radio, television, and the internet brought the TRC into people’s homes and into public spaces. The TRC was not intended to be the only way to bring to light and attempt to rectify the massive human-rights violations committed under apartheid, but it was a crucial one.

The Truth and Reconciliation Commission focused on what had happened in South Africa between 1960 and 1994. This included political crimes of mass violence committed by black South Africans along with the much larger number of abuses committed by white South Africans on behalf of the state. The TRC mandate said that “to achieve unity and morally acceptable reconciliation, it is necessary that the truth about gross violations of humans rights must be: established by an official investigation unit using fair procedures; fully and unreservedly acknowledged by the perpetrators; made known to the public, together with the identity of the planners, perpetrators, and victims.” 2

In a trial, the focus is on the perpetrator. At the TRC hearings, the focus was on the victims and their families. As TRC Commissioner Alex Bouraine said, “To ignore what happened to thousands of people who were victims of abuse under apartheid is to deny them their basic dignity. It is to condemn them to live as nameless victims with little or no chance to begin their lives over again.” 3 For many victims of apartheid, testifying before the TRC was a transformative experience. Mzykisi Mdidimba, who was tortured at the age of 16, reflected on his experience with the TRC: “When I have told stories of my life before, afterward I am crying, crying, and I felt it was not finished. This time, I know that what they’ve done to me will be among these people and all over the country. I still have some sort of crying, but also joy inside.” 4 According to a TRC report, "By the end of the Commission’s lifespan, 21,000 people had come forward, women and men, old and young, and told the Commission about nearly 38,000 gross violations of human rights. In the process, the broad outlines of the past emerged with undeniable clarity. Ninety percent of those who came forward were black. Most of them were women. The greatest number of these approached the Commission on behalf of dead men to whom they were related." 5

The TRC offered amnesty (an official pardon) for individuals under specific conditions. Perpetrators had to make a full confession of their crimes and had to show that their crimes had been politically, not personally, motivated. The commission received 7,112 amnesty applications. Amnesty was granted in 849 cases and refused in 5,392 cases, while other applications were withdrawn. 6 In its use of amnesty, the TRC decided not to use trials like those at Nuremberg after World War II and suggested an alternative path that emphasized telling and hearing the truth rather than punishment or retribution. 

The TRC brought the history of apartheid and the role of the government in enforcing it out into the open and made it harder to deny the truth of the past. Many South Africans agree that the work of the commission was critical and that it indeed played a vital role in a transition to democracy that all could participate in. But as writer Ariel Dorfman notes, “This creation of a shared history through the public airing of a harsh past does not, however, unavoidably lead to a true reconciliation. Other steps may be necessary to heal a divided community.” 7

The TRC was not intended to be the only tool of transitional justice: reparations and prosecutions, for example, were expected to be used much more widely than they actually were. Also, the daily humiliations and more “ordinary” violence of apartheid were not addressed by the TRC. Nor was the participation in the system by average white South Africans and the ways that they benefited simply by being white—and the ways that whites continue to benefit today, even though apartheid is over. A new generation of South Africans is actively questioning how adequately the legacies of apartheid have been dealt with, when reforms of the economy, the judiciary, and the education system remain incomplete.

While truth commissions can’t reconcile societies all by themselves, they are increasingly seen as a crucial tool for transition. Despite its limitations, South Africa’s TRC helped to popularize and make legitimate the use of truth commissions at the national level, and in recent years countries as diverse as Nepal and Canada have used this tool. Cities, states, towns, and even schools have also adapted elements of truth commissions in their efforts to establish a common history, rebuild trust, and secure peace.

Connection Questions

• What are some key differences between trials and truth commissions? How might you figure out when it would be best to have a trial and when a truth commission would be best?
• What aspects of South Africa’s TRC seem to have had the greatest effect? What were some limitations of the TRC? Why might it be important to learn about even flawed examples of transition and reconciliation programs?
• In 1935, American author W. E. B. Du Bois reflected on the purpose of history. He wrote, “Nations reel and stagger on their way; they make hideous mistakes; they commit frightful wrongs; they do great and beautiful things. And shall we not best guide humanity by telling the truth about all this, so far as the truth is ascertainable?” How does Du Bois add to your thinking about the importance of establishing the truth about the past?
• Do you think the country or community where you live could benefit from a “truth and reconciliation” process? What histories would you want to bring to light? What individuals or groups would you want to reconcile?
• Some schools in the United States have started implementing truth commissions and other transitional justice practices to help address conflicts and discipline issues in their communities. Have you seen elements of these practices being used in your school? If so, how? If not, how might they be applied?
• 1 Archbishop Desmond Tutu, speech to the United Nations, 1985, quoted in Facing History and Ourselves, A Guide to “Facing the Truth with Bill Moyers” (Brookline, MA: Facing History and Ourselves, 1999), 22.
• 2 “ Explanatory Memorandum to the Parliamentary Bill ,” The South African Truth and Reconciliation Commission, accessed June 26, 2016.
• 3 Facing History and Ourselves, A Guide to “Facing the Truth with Bill Moyers” (Brookline, MA: Facing History and Ourselves, 1999), 29.
• 4 Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, MA: Beacon Press, 1998), 68.
• 5 “ Truth and Reconciliation Commission of South Africa Report, Volume 1 ,” South African Broadcasting Corporation, accessed June 27, 2016.
• 6 “ Amnesty Hearing and Decisions ,” The South African Truth and Reconciliation Commission, accessed June 27, 2016.
• 7 “ Eighth Nelson Mandela Annual Lecture: Ariel Dorfman talks about memory, justice and reconciliation ,” Nelson Mandela Foundation, last modified July 31, 2010, accessed June 2, 2016.

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Facing History & Ourselves, " Transitional Justice in South Africa ," last updated August 2, 2016.  

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11 Transitional Justice and the Transformation of Constitutionalism

• Published: May 2014
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The judicialization of transitional justice, in engagement with constitutional and regional treaty norms, has become ever more common. This chapter raises two questions: To what extent has the present conception of transitional justice been impacted by rights discourse and constitutionalism? And, by the same token, how has transitional justice affected constitutional values and commitments? The evident trend toward the legalization and judicialization of transitional justice is a theme common to many of the chapters in this book. Can we still really speak of an independent understanding of transitional justice particular to moments of radical political change, when mechanisms associated with traditional justice become institutionalized as general obligations of accountability for the past, required as a matter of constitutional and/or international law?

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Transitional Justice

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In their work to increase access to justice for communities around the world, the Working Group on Transitional Justice and SDG16+ released a report urging policymakers and donors to support transitional justice as one important way to reduce the justice gap. In cases of extreme injustice—including in Syria, Myanmar, and Yemen—decreasing the justice gap is often primarily about stopping, addressing, and preventing the recurrence of large-scale human rights violations. To advance the 2030 Agenda for Sustainable Development in these extraordinary circumstances, extraordinary responses, including transitional justice, are needed so progress toward the SDGs does not leave behind communities with legacies of human rights violations. Transitional justice efforts can put victims at the center of the work and make sure that victims are included in the justice process. Transitional justice can be adapted to different situations and contexts and is flexible about the form that justice takes. Moreover, it can also be designed to tackle problems of scale, address structures of injustices in the form of legacies of violations, and emphasize nonrecurrence. These characteristics make these mechanisms uniquely capable of addressing the justice gap in communities that have experienced repression and conflict.

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Criminal Justice

13:00 - 14:30 (cet), securing communication channels from metadata risks for vulnerable actors.

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Digital trails could endanger people and organizations in various high-risk contexts. This session provided an overview of a data responsibility framework, the risks surrounding the use of communication channels with regards to metadata, and explored practical mitigation strategies. By addressing case studies involving whistleblowers, human rights activists, journalists and aid workers, the session encouraged attendees to ask relevant questions and take home answers for their own organizations.The session concluded with three key points. First, was a call to action, encouraging humanitarian organizations to avoid abstract discussions about metadata, but to engage at the ground level and produce tangible outcomes. Second, was to highlight that threat models are constantly changing and it is important for organizations to frequently re-evaluate the risks they are exposed to and reexamine their data responsibility framework. Finally, the Centre for Innovation presented an assessment framework for assessing metadata risks of messaging platforms. They underscored how important it is for organizations to better understand how metadata is collected and stored by platforms and be aware of the risks associated with using social messaging platforms.

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• > Journals
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• > Volume 56 Issue 3
• > Reframing Transitional Justice: Memory, Interdisciplinarity,...

Article contents

Transitional justice and the ability to see, gender, memory, and transformative justice, on memories: tides and volcanoes, reframing the battles about the past, an interdisciplinary field, revisiting operation condor, new visions, reframing transitional justice: memory, interdisciplinarity, and transformative ways of seeing.

Published online by Cambridge University Press:  02 January 2022

This essay reviews the following works:

The El Mozote Massacre: Human Rights and Global Implications. By Leigh Binford. Revised and expanded ed. Tucson: University of Arizona Press, 2016. Pp. 400. $34.95 paperback. ISBN: 9780816532162.

Stories of Civil War in El Salvador: A Battle over Memory. By Erik Ching. Chapel Hill: University of North Carolina Press, 2016. Pp. 362. $34.95 paperback. ISBN: 9781469628660.

The Politics of Transitional Justice in Latin America: Power, Norms, and Capacity Building. By Ezequiel A. González-Ocantos Cambridge: Cambridge University Press, 2020. $18.00 paperback. ISBN: 9781108799089.

The Feathers of Condor: Transnational State Terrorism, Exiles and Civilian Anticommunism in South America. By Fernando López. Cambridge: Cambridge Scholars Publishing, 2016. Pp. 375. £57.99 hardcover. ISBN: 9781443897099.

Eruptions of Memory: The Critique of Memory in Chile, 1990–2015. By Nelly Richard. Translated by Andrew Ascherl. Pp. xxvi + 189. Cambridge: Polity Press, 2018. Pp. 224. $22.95 paperback. ISBN: 9781509532285.

Exile, Diaspora, and Return: Changing Cultural Landscapes in Argentina, Chile, Paraguay, and Uruguay. By Luis Roniger, Leonardo Senkman, Saúl Sosnowski, and Mario Sznajder. Pp. 304. $82.00 hardcover. Oxford: Oxford University Press, 2018. ISBN: 9780190693961.

Surviving State Terror: Women’s Testimonies of Repression and Resistance in Argentina. By Barbara Sutton. New York: New York University Press, 2018. Pp. v + 325. $35.00 paperback. ISBN: 9781479829927.

Memory, Truth, and Justice in Contemporary Latin America. Edited by Roberta Villalón. Lanham, MD: Rowman and Littlefield, 2017. Pp. vi + 274. $41.00 paperback. ISBN: 9781442267251.

In 1983, Raul Alfonsín, who was then just a candidate for president of Argentina, recited the constitution’s preamble during his presidential campaign. With that gesture, democracy, as a concept, emerged from the dusty drawers after many years of dictatorship to a public space inhabited by a multitude. After so many years of being prohibited, each word of the preamble acquired new and different meaning and became the symbol of the possibility of a return to the rule of law. Both as a promise of democracy and a pledge to its sustainability, Alfonsín’s gesture inaugurated Argentine’s transitional justice model. Although this model was interrupted during the long 1990s decade of impunity, it placed accountability at the center of the restoration of the rule of law and a new democratic culture. In the intervening years, there has been a constant struggle for truth, memory, and justice and a demand not to forget the long-lasting effects of past atrocities. When rethinking this transition, and transitions in general, it is important to recognize how numerous struggles interact to transform the culture and how activism and organizing for human rights are always accompanied by efforts in the artistic and literary field. From music to the plastic arts and photography, from poetry to novels, testimonial literature, and essays, the arts and the many intellectual debates surrounding the arts play a crucial role in the transitional justice process. Footnote 1 It is essential to consider not only institutions but also an array of cultural and artistic practices that have been overlooked for a long time. Footnote 2

The selection of books in this review represents different approaches to transitional justice as an interdisciplinary field and its transformations since the 1990s, including the recent inclusion of memory as a constitutive component. These changes are crucial to the field’s opening to the many different ways the past (and the atrocities of the past) is remembered and memorialized. During the forty-fifth session of the Human Rights Council in 2020, Fabian Sabioli, the UN Human Rights Special Rapporteur on the promotion of truth, justice, reparations, and guarantees of non-recurrence, underscored the crucial role played by the processes of memorialization as the fifth pillar of transitional justice: “Positive work in the area of memory not only helps to build democratic cultures in which human rights are respected but also fulfills the legal obligation of States to guarantee human rights.” Footnote 3 With its many layers, memory, and most especially the struggles over memories, bring to the forefront a constellation of images, recollections, and interpretations, as well as individuals, communities, and groups, that renew and reinvigorate the debates about the past and the present, as well as the interpretation of justice and challenges to the transitional justice processes themselves.

In these pages, I will discuss some recent contributions to present debates on transitional justice in Latin America, including exploration of different angles of the construction of memory in both the social sciences and the humanities. I intend to underscore the impact of memory struggles and the perspectives of different disciplines on the reformulation of the field toward a more transformative model that challenges Western and colonial ways of thinking and opens new doors to understanding and renegotiating a more inclusive and transformative notion of justice.

Latin American scholarship and debates on transitional justice have been recognized by different scholars both as vital contributions to the field and as innovative ways of understanding its processes. This role is the point of departure of The Politics of Transitional Justice in Latin America: Power, Norms, and Capacity Building , by Ezequiel A. González-Ocantos. The book examines the transformation of transitional justice from punitive models to truth-seeking models that emphasize accountability, reparations, and institutional reform. González-Ocantos also explores the expansion of the field, underscoring its malleability more than its rigidity. At the same time, he discusses two existing models in the field: the Huntingtonian model (which emphasizes redemocratization politics driven by either the elite in power or oppositional groups) and the justice cascade model (which emphasizes international norms and a transnational network of activists and human rights experts). Footnote 4 In addition to clearly summarizing these two perspectives, González-Ocantos persuasively argues that the difficulty of implementing the models by themselves can only be overcome by building transitional justice capabilities. His new model complements the previous two and is the main contribution of this book.

The starting point is Guillermo O’Donnell and Philippe Schmitter’s Transitions from Authoritarian Rule and, in particular, their point about the dilemma that transitions pose for a consensual model of addressing the atrocities of the past: with the leadership focusing on peace (and “burning the past”) and the perception of the majority of the population that any such route is unethical. Footnote 5 Yet, for González-Ocantos, we should not conceive it as a transitional dilemma but instead as a permanent one (or at least recurrent). The challenges posed by implementation contribute to a process marked by recurrence, repetition, and reformulation. The building (or rebuilding) of the needed infrastructure is central, González-Ocantos argues, for the advancement of transitional justice. Therefore, the emphasis here shifts from politics (the Huntingtonian model) and international norms, actors, and expertise (the justice cascade model) to domestic actors’ expertise and to the building of the capacities that could allow the successful implementation of transitional justice mechanisms.

I will mention two examples provided by González-Ocantos: the first in Guatemala and the second in Argentina. In the case of Guatemala, the author focuses on the advances represented by the United Nations and the International Commission against Impunity in Guatemala (CICIG) in supporting judicial institutions and training prosecutors and police. He examines changes in the selection process and the “creation of ‘high risk’ courts devoted to cases of macro-criminality, including human rights violations” (56). In addition, he underscores the appointment of the lawyer and human rights defender Claudia Paz y Paz as attorney general in 2010, and the subsequent impact of this appointment on the increase of criminal prosecutions, the adoption of a victim-centered approach, the transformation of institutional practices, and the incorporation of protocols for investigating sexual crimes. Footnote 6 Along with the crucial moment when the former dictator Efraín Rios Montt was convicted in 2013 (even though a constitutional court annulled the conviction shortly thereafter), these critical transitional justice advances might not be sustainable. González-Ocantos suggests that changes in Guatemala were made rapidly and in a “top-down fashion.” Building the capabilities for the implementation of justice requires transforming the way the state and its agents “look at the world around them” (46).

González-Ocantos also analyzes Argentine advancements concerning sexual violence during the military dictatorship. The reframing of sexual violence responds to how women were framed as accomplices or sexual and romantic partners, both by military oppressors and by the democratic judicial system (as well as by the cultural norms of the 1980s and 1990s). As a new way of seeing and understanding, the reframing also responds to how these scenarios were framed by cis-hetero-patriarchal expertise. The Kirchner presidencies made possible many advances in the accountability model in Argentina. Yet, the most salient aspect was, for González-Ocantos, the process of jurisprudential innovation. The book underscores the role of judicial leaders—from the Supreme Court and domestic criminal courts, which were committed to justice, to the lower courts, which provided technical assistance. The book also examines the appointment of a specialized team of prosecutors to revise procedural standards.

Whereas González-Ocantos focuses on the courts, it would also be possible to consider a much broader frame for the historic 2010 decisions that made sexual violence in the context of state-sponsored terrorism a crime against humanity. In this more comprehensive scenario, various cultural productions, debates, and activities point to the importance of interdisciplinary perspectives. And while some of these arguments are linked to international discussions and decisions, the impact of cultural debates and artistic and literary practices cannot be overlooked here, nor can we overlook the role that survivors and testimonial narratives in documentary films played in these debates. They were crucial in redefining the expertise needed to address these issues. The ability to see sexual violence through a different lens is linked to various feminist debates in legal, philosophical, artistic, intellectual, and testimonial contexts, all of which took place in Argentina well before 2010. Expertise and jurisprudential achievements are inevitably connected to feminist groups, women survivors, and human rights activists, as well as to artists, writers, and philosophers. González-Ocantos’s contribution to the way we think about the transitional justice field opens, in my opinion, an important door to rethink the role that the interconnection of different groups and disciplines has had in those cultural transformations that later resulted in new forms of expertise, such as feminist readings of sexual violence, which were previously not considered necessary.

For over two decades, the construction of memory about the last military dictatorship era in Argentina was mainly patriarchal, and this masculine framework erased women survivors within the most visible narratives of the return to democracy. By challenging masculine paradigms of the human and memory, Barbara Sutton makes a substantial contribution to the transformation of the transitional justice field in Surviving State Terror: Women’s Testimonies of Repression and Resistance in Argentina . Sutton offers a gender-based analysis of women’s narratives. Through narratives, voices, and visions of fifty-two women and their testimonies in the Oral Archive of the organization Memoria Abierta (Open Memory), Sutton analyzes accounts of the terror suffered during clandestine detention and underscores the centrality of the memories of the pain inflicted during sessions of torture and sexual violence. The book offers close-up narratives about the body, including the patriarchal scripts surrounding gender-based violence, and underlines bodily forms of resistance, including forms of solidarity. The testimonial narratives analyzed by Sutton bring the body to the forefront as an anchor of suffering, memory, narration, affect, resistance, and struggle. Yet, these narratives remain incomplete without a listener. Thinking of memory in terms of gender is not new in the Argentine landscape, and Sutton both recognizes some of the works written by other scholars and enters in dialogue with the discipline itself. By focusing on the act of listening as crucial to dealing with issues of testimony and memorialization, Sutton shows how listening also involves recognizing how the accounts included in her book were silenced by patriarchal discourse.

One of the main contributions of this book is to show that memory without the narratives of women survivors is not only incomplete but also inaccurate. Sutton argues in her conclusion that advancing a democratic culture “requires listening to a variety of embodied stories, not all of which have had the chance to emerge fully” (251). Sutton understands the construction of memory as an ongoing process, and by challenging the patriarchal framework of memory, her book is both a timely and ambitious study of the reconstruction of the recent Argentine past from a gender-based perspective, which rethinks transitional justice through a transformative lens.

As in the case of gendered memories and their role in the memorial process, the dispute over the meaning of transitions also involves a dispute over the interpretation of the past. It is particularly at this junction that more marginalized memories open up new ways to understand the past by unveiling meanings and information that were not previously taken into consideration. Memory, with its multiple folds, allows us to reframe the past and, with that, the interpretations that frame the process of transitional justice.

One of the points of departure in Roberta Villalón’s introduction to Memory, Truth, and Justice in Contemporary Latin America is the reinvigoration of the process of truth, reconciliation, and justice at the turn of the century. Organized in four parts, and with the participation of leading scholars in the field, this interdisciplinary book focuses on different approaches to framing and reframing collective memory and the paradoxes of memory and justice. In the introduction, Villalón underscores new ways to reframe memories of the past to promote truth, memory, and justice. She also points out that there is a sense of paralysis brought by the traumatic experiences of the past, which has been transmitted transgenerationally. During this second wave, everything is questioned and revisited: the notions of victimhood, justice, memory, and truth. It seems difficult to separate the artistic and literary practices from the legal efforts and the social mobilizations. According to Villalón, all these different components represent the complexity of memory truth and justice processes, which cannot be addressed with “authoritative, ‘monolithic and essentialist’ explanations” (7). Instead, she proposes an activist scholarship that seeks to contribute to community social justice efforts. In a way, the book itself is part of this second wave of memory construction and presents voices from different Latin American countries, which reflect on the construction of memory, its labors, and its battles.

The volume is divided into four parts. “Framing Collective Memory: Counter-Hegemonic and Master Narratives,” with essays by Emilio Crenzel, Valentina Salvi, and Hillary Hiner and María José Azócar, deals with the framing and reframing of collective memory over time. In this section, essays point to the complexities and even paradoxes of the processes of memory and justice. The second part, “Defining Historical Periods, Blame, and Reparation,” focuses on the relation between memory and national discourse, including neoliberalism (Juan Poblete), the tension between the long memory of colonization and the short memory of the atrocities of the dictatorship in Bolivia (Francisco García Jerez and Juliane Müller), and the narratives of reconciliation and pacification in Colombia (Erika Márquez). The third part, “Cultures of Trauma, Healing, and Justice,” explores past wounds and narratives of fractures. Without disconnecting trauma from transitional justice, the contributions of Lorenzo D’Orsi, Virginia Garrard, and Susana Kaiser point to silence and traumatic memory, as well as to the truth and justice process, in Uruguay, Guatemala, and Argentina. The last part, “Arts, Media, Museums, and Memory,” discusses the process of memorialization and explores how artistic and cultural practices have advanced the transitional justice process. Essays by Diana Sierra Becerra, Nina Schneider and Rebecca J. Atencio, Renzo Aroni Sulca, and Alexis Cortés analyze counterhegemonic artistic memorialization practices in El Salvador, Brazil, Peru, and Chile.

Villalón proposes that memory is an ongoing process and an unfinished labor. In a similar vein, Nelly Richard argues in Eruptions of Memory: The Critique of Memory in Chile, 1990–2015 that memory is also in constant transformation. The metaphor of volcanic explosions in the title points to the return of images and recollections that point to the wrongdoings of the past. In the original Spanish, the title also points to the latencies ( latencias ) and startles ( sobresaltos ) of traumatic memory, which indicate, beside the image of a volcano, the many layers of memory and the inconclusiveness of the return of what was buried but still haunts us. The book is organized into ten essays, each of which belongs to a different post-dictatorship moment, from the avant-garde and the escena de avanzada , the artistic intervention that subverted the mandatory representations of the Pinochet dictatorship, to the forty-year commemoration of the dictatorship in 2013. Richard examines what from the buried past still has the power to shock, either by producing new aftershocks or by shaking the meanings of the neoliberal present and of those subjectivities that are still numbed by past and present traumas. According to Richard, the neutralization of memory during the Chilean transition and the emphasis on consensus and reconciliation might be understood as a point of departure for rethinking the depoliticization of memory and its detachment from justice. Memorialization is a struggle against the problem of accepting the principle of truth without justice. Richard analyzes various returns from a haunted past: not only the crimes committed during the dictatorship or even the debates around the confessions of perpetrators (as in chapter 4), but also the attempts to represent the past and its obscenities, as well as the struggles that took place in 1998 in Chile upon Augusto Pinochet’s return after his arrest in London. Yet, the struggle over memory and the process of memorialization is also problematic, particularly when recurrence results in the neutralization of meaning of memory, or when memory is in “the network of political power and influence” (150). Therefore, memorial sites such as Villa Grimaldi, Londres 38, or the Museum of Memory and Human Rights, even with the ritualistic call to exercise memory, risk conceiving this practice as fixed and conclusive. As with the analysis of the commemoration of the dictatorship’s fortieth anniversary in 2013, the emphasis shifts from memory to erasure. Understanding one practice, one site of memory, or one narrative as representative of the past means understanding what is remembered and what is forgotten.

When reading this text in 2020, the protests of October 2019 cannot be ignored, nor can we forget the recent vote to draft a new constitution. The last words in Richard’s text are precisely about the constitution and its entanglement with the protection of “the political and economic privileges of those who inherited the dictatorship’s legacy and its criminals” (152).

One of the issues the protests underscored was the link between the past dictatorship and the present Chilean constitution. The connecting path between memory and the rule of law is a minefield designed in the past by the terrorist state, which is still present today. Like Villalón, Richard also attempts to rethink transformative justice from a decolonial perspective. In 2011, the Londres 38 collective invited artists to interpret the resignification of the concept of disappearance in the present, particularly with the disappearance of José Huenante, a sixteen-year-old Mapuche youth. For Richard, this artistic reformulation constitutes a repoliticization of the concept of disappearance and a denunciation of the criminalization of the Indigenous peoples. Even though these cultural actions might challenge the definitions of the law (both domestic and international), artists nonetheless open new pathways for understanding rights, as well as new directions for the transitional justice process, including its link to decolonization.

The books I will discuss in this part account for a reframing of memory and examine narratives and testimonies that generate new interpretations about truth and justice, therefore expanding the notion of transitional justice. The El Mozote Massacre: Human Rights and Global Implications by Leigh Binford is one example of this new perspective. The book, which has been revised and augmented since its first publication in 1996, deals with the three-day massacre in El Mozote, El Salvador, where about one thousand civilians (including hundreds of children) were killed.

The El Mozote Massacre focuses on the process of truth and justice and the participation of survivors, activists, and experts in these struggles. It examines the 1993 Truth Commission and the role played by the Inter-American Commission, as well as the 2013 hearings that led the Inter-American Court to order reparations for the victims. The book also claims that only community stories and struggles can undo the incomplete versions and narratives that exist within the transitional justice process. This concern is shaped in the following question and answer: “What form, then, might a plausible alternative writing of human rights assume? The testimonial is one possibility” (9). Shifting the emphasis from the mechanisms of transitional justice to the testimonies of those who suffered human rights abuses, Binford underscores the urgency of addressing past wrongdoing, as well as addressing the conditions that made those actions possible but continue to be present.

Binford suggests a revision of the temporality of human rights violations in order to see the violence that existed before the violations, therefore implying that these forms of violence are still in place. Transitional justice would have to respond to the urgent need to focus on storytelling and testimonies “before the interruptions brought by capture, torture, or murder” (5). This new revised edition focuses on the shortcomings of the field of transitional justice. The critique of human rights discourse is an essential part of the argument. According to Binford, the representation of the 1981 massacre using human rights language might result in an oversimplification of Salvadorians as either perpetrators, victims, or witnesses, thereby reproducing Western and colonial models. Reframing these questions involves new ways of seeing and unlearning the current assumptions of the field, a transformation that is anchored in the area of memory and, more specifically, narrative memory. Moving away from the need to prove the massacre’s existence, the book examines the more recent need to analyze how the massacre has been remembered, including the transformations that took place in the labor of memory. This qualitative approach challenges the human rights quantitative perspective, which promotes a simplistic understanding of the massacre, on the one hand, and the victim, on the other, while also erasing the political tensions in the stories of the community.

The book deals with the massacre itself, the struggle for truth, and the investigation that was led by human rights groups to confront the state’s effort of noninvestigation. One of the concerns about the methodology for the field is its reduction of victims to numbers. The use of testimonies and stories could serve to challenge and dismantle this reduction. Victims’ testimonies are conditioned by the marginalization of recollections, meanings, and interpretations. What their singular stories reveal is a truth that is not included in reports but is central for the undoing of the interpretations, biases, and assumptions that supported many years of impunity. Testimonial practices are about the reconstruction of an experience of the past, and about reclaiming the status of such practices as testimonies , including reclaiming the listener as someone who will allow the testimonial process to take place. Furthermore, testimonial practices show that the process of storytelling is transformative. Past events are not remembered in only one way, and the reframing of memory (that is, the ability to also see more marginal stories) is an essential part of the truth, memory, and justice process.

Erik Ching’s Stories of Civil War in El Salvador: A Battle over Memory also rethinks the battles between different versions of the past and challenges the possibility of reconstructing one single memory. Ching focuses on four different communities and their narratives of the past. After the death and disappearance of more than seventy-five thousand human beings and the displacement of about one million, the traumatic years of the civil war in El Salvador and the terror that inundated so many lives can only be recovered partially and in patches: “At the core of each memory community is a unifying theme that drives its respective members’ narratives forward” (13).

Ching argues that the narratives of Salvadorian civilian elites, military officers, guerrilla commanders, and rank-and-file actors create different perspectives on the war, therefore challenging peace and reconciliation approaches that rely on a single narrative of the transition. According to Ching, remembering is also a battle over the interpretation of the war and the peace accords. For the civilian elites, narratives centered on expropriation and the defense of their property; for the military, the link between nation and militia pointed to the traditional elites’ defense. In contrast, the guerrilla commanders’ narratives place justice at the center of a struggle against the oligarchy. The rank-and-file actors also added to their stories the power embraced by their commanders, even in the shared attempt to fight against state repression. Collective memory is a site of debate over the past, and without this debate, hegemonic memories of the past become the dominant voices in the present. For Ching, storytelling is central to the task of seeing and recognizing more marginalized memories and the tensions that they underscore. Those tensions play a central role in the difficulties or even impossibilities of reconciliation. While different from the approaches taken by Richard and Villalón, Ching’s book also conceives of memory as an unfinished project, which involves the recollection and interpretation of the most recent massacres and the colonial foundations of Latin American nations. Of the large number of narratives analyzed in the book, many are not necessarily linked to human rights struggles but rather to tensions and divides that are still present today. Both Binford and Ching bring dissent to the forefront and question any attempt to reconstruct a collective memory without considering the different ways of remembering and narrating the past, the war, and the peace accords in El Salvador.

The many debates on testimonial narratives in Latin America, which have existed since colonial times but which emerged in the 1970s and 1980s as a literary genre, prove that testimonio as a narrative form, or even as a literary genre, does not necessarily guarantee truth or justice. Footnote 7 Yet, testimonios are crucial to the memorialization of the past and for challenging simplistic or hegemonic versions of what part of that past should be remembered. These two books, in different ways, emphasize this challenge. Debating and questioning hegemonic memories in the transitional justice process points to the possibility of understanding the past through different angles. Stories within a community affected by grave human rights abuses and violence serve to reconstruct not only the narrative of the past but also the communal fabric that the atrocities of the past attempted to destroy. This narrative process is also an integral part of the transitional justice process.

Interdisciplinary collaboration might be one of the keys to understanding the study of transitional justice processes from different perspectives and methodologies. Luis Roniger, Leonardo Senkman, Saúl Sosnowski, and Mario Snajder make a clear case for collaboration in Exile, Diaspora, and Return: Changing Cultural Landscapes in Argentina, Chile, Paraguay, and Uruguay . The book deals with the Southern Cone and the solidarity groups that emerged in exile during the dictatorships, and brings together the expertise of four scholars who have published extensively in the field. The authors pay close attention to the impact that these actors had in active resistance to the dictatorships, including the artistic and intellectual components of resistance and in carving out political and cultural transformations during the transitional postdictatorship period, as well as their role of taking on the task (not an easy one in some of these countries) of contributing to a sustainable democracy. They argue that, although authoritarian regimes in the Southern Cone assumed that dissidents’ expulsion would be enough for hegemonic control, those in exile created networks that generated international support and solidarity and undermined the international narratives of the dictatorships.

Central to the book’s argument is the role of intellectuals, artists, and writers in society and the redemocratization process. Their cultural and political contributions, as well as their participation in and impact on higher education, are attributed to the fact that they constituted a “diaspora of knowledge” generated by their transnational experiences and their worldwide network of activists, intellectuals, academics, and artists. From institutionalized mechanisms of exclusion to the dynamics of diaspora mobilization and the long-term impact of expatriation, the book argues that “in tandem with the weakening of the idea of the nation-state, increasing regionalism, and global openings, the expatriation, and exile of some of the most mobilized and engaged citizens contributed to widening the optic of the domestic elites beyond state boundaries” (30). And while the objective of eradicating cultural and political opposition resulted in exile and displacement, it nonetheless also resulted in the creation of transnational networks abroad. In turn, the return of exiles had an impact on the democratization process, even though this process varied among the four countries studied. The book also underscores the commitments of exiles from the fields of arts and letters to Southern Cone political life. Their exile and return had an impact on the vibrancy of universities, theaters, public debates, and museums during the transitional process, not just upon their return but also for the decades that followed.

The authors focus on the policies of deterritorialization, analyzing what they call “the dynamic of mobilization of the diaspora” and the “politics of return,” as well as the transformational effect that the exiled had on the redemocratization process. This book constitutes an essential contribution to comparative analyses of these four countries and brings together the humanities, political sciences, history, and sociology. One such contribution is the inclusion of Paraguay, a country that is often overlooked in discussions of the Southern Cone. By identifying the impact of displaced intellectuals and academic activists on the cultural and institutional transformations that followed the dictatorships in Argentina, Uruguay, Paraguay, and Chile, as well as their participation in institutions of higher education and literary and artistic production, the book underscores the role of exile and return on the democratization of culture. Transitional justice is understood vis-à-vis cultural transformation. The authors also point to the tensions of exile and return, both culturally and politically, by analyzing the policies that promoted or discouraged participation in the redemocratization process. When considering current debates on migration and displacement, this book becomes even more relevant, as it invites the reader to rethink Latin American exiles and their diasporas, bridges, and networks.

In a rereading of Operation Condor, Fernando López’s The Feathers of Condor: Transnational State Terrorism, Exiles and Civilian Anticommunism in South America underscores the role that exiles played in the transition to democracy, in particular the role that they played in the construction of international solidarity against state terrorism in the Southern Cone. The network of coordinated intelligence and repression between Argentina, Brazil, Chile, Uruguay, Paraguay, and Bolivia is usually understood in terms of cooperation, with the common objective to “hunt down, seize, and execute political opponents in combined operations across borders.” Footnote 8 One important point of The Feathers of Condor is to show the disagreements and tensions between the countries involved (most visibly, Argentina and Chile, who were on the verge of war during the dictatorships). One of the most innovative contributions of this book is its claim that this repressive network had the objective of targeting not only guerrillas but also the exile community and, in particular, international human rights networks. The book argues that these repressive networks coordinated to defeat not only the guerrillas but also the threat posed by exiles and their human rights involvement.

In López’s argument, it is not enough to say that the threat to the dictatorships was political and military; rather, it was the political defeat the military regime recognized in the active gathering of solidarity and repudiation of terrorist methods. For that reason, chapter 4 constitutes an essential part of the argument and focuses on the most conservative nonstate actors of the Latin American right and their support of the military dictatorships. The book starts with the historical background of the 1975 meeting that consolidated the transnational operation, and with a political and economic analysis of the countries that participated in Operation Condor (chapter 1). In the following chapters, López examines the emergence of the Junta de Coordinación Revolucionaria (chapter 2), and the forms of resistance that exiles initiated through transnational human rights networks. Through a detailed revision of bibliographical references, documents, internal communications, and memoranda, López argues that Operation Condor was a plan that sought to coerce exiles and prevent them from participating in transnational human rights movements.

Even though the finding of the Archives of Terror in Paraguay uncovered the transnational operation, with the first documents revealing its official existence, it was the investigation by Judge Baltasar Garzón of Spain, as well as the new information disclosed by the declassification of US documents and the subsequent request for extradition of Augusto Pinochet, that brought the possibility of justice to the forefront. Furthermore, recent trials and the Operation Condor verdict of 2016 opened a new path in the transitional justice process, including a path toward the prosecution of transnational atrocities, because the trials held “state agents accountable for extraterritorial human rights violations.” Footnote 9 López emphasizes the impact of the exiles’ solidarity networks for the eroding of the self-claimed legitimacy of the military regimes, as well as the impact of human rights struggles on the reduction of financial assistance to the military. Therefore, the change of repressive scenarios from military to diplomatic, including the efforts to disrupt the exiles’ human rights connections, was a central part of transnational state terrorism.

All these books, with different methodologies, bring to the forefront three aspects I would like to emphasize. First, the field of transitional justice is interdisciplinary. Without more collaborative, interdisciplinary approaches that underscore the different ways of understanding, the field is incomplete. Second, the emphasis on memory and memorialization in the conceptualization of transitional justice reveals the malleability of both memory and narrative and entails a more transformative version that acknowledges the diverse struggles for visibility and reinterpretation. Finally, the field’s transformation involves unlearning certain approaches that have dominated in the past and carving a path toward a more inclusive field of study.

While some earlier approaches to transitional justice pointed to “legal responses to confront the wrongdoings of repressive predecessor regimes,” the field has since expanded outside periods of political transition and beyond democratization. Footnote 10 The emphasis on memory practices and struggles, and on memorialization as a form of reparation, broadens the scenario of transitional justice outside legal and judicial spaces. The focus on memory helps us to understand what new frameworks can bring to our attention. Memory can include new memories and new demands, Elizabeth Jelin has suggested, and what is made visible by new groups that were previously excluded. In addition, the expansion of the field opens it up to a broader scope of disciplines, including education, the humanities, and the arts. As Cynthia Cohen suggests in a recent contribution to the reimagination of transitional justice: “artistic and cultural initiatives engage individuals and communities in distinctive ways of apprehending and transforming the world.” Footnote 11 Many literary narratives denounced crimes, struggled for the visibility of clandestine illegal practices, and created archives that referred precisely to what official archives were lacking. Many artistic projects worked at the interstices of what Nelly Richard calls “trizaduras de la representacion” (the tearing to shreds of representation), emphasizing the role of the arts in the creation of new languages and expressions or aesthetic ways to reveal the effects of the traumatic past. Footnote 12

From new ways of seeing and their crucial role in capability building and jurisprudential innovation to the transformative role of the artistic imagination, these books expose the many layers of architecture in the transitional justice process: feminist vision as a way to reframe violence (Sutton); disputes over the meaning of the past through storytelling (Ching); transformation of narratives and memories (Binford); the role of exiles and their practices (Senkman, Roniger, Sosnowski, and Sznajder; Lopez); the network of expertise involved in the judges’ ability to see (González-Ocantos); and the reconstruction of what has either been broken by the violence of the dictatorship or has remained outside the frame (Richard; Villalón). An example of this last point is the chapter by García Jerez and Müller in Villalón’s edited collection, which examines the distinction between long and short history. These authors reference, in particular, the work of Silvia Rivera Cusicanqui and Javier Hurtado and the memories of the Aymara Quechua resistance as an interruption of national integration and its ideas of memorialization. All the approaches summarized in this review have argued for the role of Latin America in the transitional justice field, from the legal and judicial arenas to the cultural, and they underscore the field’s constant rearticulation, its battles, and its minefields, as well as new, creative ways to see, expose, and reveal new layers of memory, narratives, and actors.

Transitional justice is no longer to be circumscribed by the atrocities that occurred during recent conflicts and dictatorships but must include the long history of violence and the struggles that have been fought in legal and judicial scenarios. The transformation of the field also involves the restoration of the community fabrics that have repeatedly been threatened by colonial, patriarchal, racist, xenophobic, and homophobic manifestations of violence. Interdisciplinary scholarship and activism is reshaping the field and contributing to debates about memory and decolonization as well as to debates about racism, sexism, and heteronormativity in memory.

Transformative approaches to transitional justice have underscored the need for a shift, not solely from the legal to the social, cultural, and political, or from institutions and states to communities, but also from the focus on past atrocities to everyday concerns and to an expansion that would entail economic rights, rights to health, and environmental rights. Footnote 13 Similarly, challenges to Western and colonial visions anchored in universal assumptions and understandings point to intersectional feminist approaches as well as to decolonial perspectives that result in the broadening of the field away from atrocities situated in the past to systemic forms of oppression in the present. Footnote 14 At the same time, challenges to the racialized and colonial framework of the transitional justice process, and the rethinking of the field through transformative approaches that emphasize social and racial justice, signal a new shift and suggest new challenges to a field that seems to be in constant transformation. The reframing of transitional justice is opening new pathways to understand transformative justice, including new ways to think about systemic violence and the colonial frameworks of our present.

1 See, for example, Rebecca Atencio, Memory’s Turn: Reckoning with Dictatorship in Brazil (Madison: University of Wisconsin Press, 2014); Fernando Rosenberg, After Human Rights (Pittsburgh, PA: University of Pittsburgh Press, 2016); and Ana Forcinito, Intermittences: Memory, Justice, and the Poetics of the Visible in Uruguay (Pittsburgh, PA: University of Pittsburgh Press, 2018).

2 See, for example, Transitional Justice, Culture, and Society beyond Outreach , edited by Clara Ramírez-Barat (New York: Columbia University Press, 2014), in particular Pablo de Greiff’s contribution, “On Making the Invisible Visible: The Role of Cultural Interventions in Transitional Justice Processes,” 22–24.

3 “Memorialization Processes in the Context of Serious Violations of Human Rights and International Humanitarian Law: The Fifth Pillar of Transitional Justice,” Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, July 9, 2020, https://undocs.org/A/HRC/45/45 .

4 See Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991); and Katherine Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: W. W. Norton, 2011).

5 Guillermo O’Donnell and Philippe C. Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies (Baltimore: Johns Hopkins University Press, 2013).

6 González-Ocantos quotes from the following sources: Emily Braid and Naomi Roht-Arriaza, “De Facto and De Jure Amnesty Laws: The Central American Case,” in Amnesty in the Age of Human Rights Accountability , edited by Francesca Lessa and Leigh A. Payne (Cambridge: Cambridge University Press, 2012), 182–209; Susan Kemp, “Guatemala Prosecutes Former President Ríos Montt: New Perspectives on Genocide and Domestic Criminal Justice,” Journal of International Criminal Justice 12, no. 1 (2014): 133–156; and Jo Marie Burt, “From Heaven to Hell in Ten Days: The Genocide Trial in Guatemala,” Journal of Genocide Research 18, no. 2 (2016): 143–169.

7 See John Beverley, Testimonio: On the Politics of Truth (Minneapolis: University of Minnesota Press, 2004); Georg M. Gugelberger, ed., The Real Thing: Testimonial Discourse and Latin America (Durham, NC: Duke University Press, 1996); Arturo Arias, ed., The Rigoberta Menchú Controversy (Minneapolis: University of Minnesota Press, 2001); and Ana Forcinito, “Testimonio: The Witness, the Truth and the Inaudible,” in Critical Terms in Caribbean and Latin American Thought: Historical and Institutional Trajectories , edited by Yolanda Martínez-San Miguel, Ben Sifuentes-Jáuregui, and Marisa Belausteguigoitia, 239–251(New York: Palgrave Macmillan, 2016).

8 J. Patrice McSherry, “Operation Condor: Clandestine Inter-American System,” Social Justice 26, no. 4 (1999): 144.

9 Francesca Lessa, “Operation Condor on Trial: Justice for Transnational Human Rights Crimes in South America,” Journal of Latin American Studies 51, no. 2 (2019): 409–439.

10 Ruti Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16 (2003): 69–94.

11 See, for example, Cohen’s introduction to the March 2020 special issue of the International Journal of Transitional Justice , titled “Creative Approaches to Transitional Justice: Contributions of Arts and Culture.” Cynthia E. Cohen, “Reimagining Transitional Justice,” International Journal of Transitional Justice 14, no. 1 (2020): 1–13.

12 Nelly Richard, Residuos y metáforas: ensayos de critica cultural sobre el Chile de la transición (Santiago: Cuarto Propio, 1998).

13 Paul Gready and Simon Robins, “From Transitional to Transformative Justice: A New Agenda for Practice,” International Journal of Transitional Justice 8, no. 3 (2014): 340.

14 See Sumi Cho, Kimberlé Crenshaw, and Leslie McCall, “Toward a Field of Intersectionality Studies: Theory, Applications and Praxis,” Signs 38, no. 4 (2013): 785–810; Angela Santamaría, Dunen Muelas, Paula Caceres, Wendi Kuetguaje, and Julian Villegas, “Decolonial Sketches and Intercultural Approaches to Truth: Corporeal Experiences and Testimonies of Indigenous Women in Colombia,” International Journal of Transitional Justice 14, no. 1 (2020): 56–79; Pascha Bueno-Hansen, Feminist and Human Rights Struggles in Peru: Decolonizing Transitional Justice (Chicago: University of Illinois Press, 2015); Walter Mignolo, “Epistemic Disobedience, Independent Thought and Decolonial Freedom,” Theory, Culture and Society 26 (2009): 159–181; and María Lugones, “Heterosexualism and the Colonial/Modern Gender System,” Hypatia 22, no. 1 (2007): 186–209.

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• Volume 56, Issue 3
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• DOI: https://doi.org/10.25222/larr.1651

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Review on The Transitional Justice

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EssayEmpire

Transitional justice essay.

The term transitional justice (TJ) is of fairly recent creation and is generally taken to signify a process of democratization occurring in a state that transitions from authoritarian rule, war, or internal conflict to a liberal democracy or a state of peace. Associated with the transition is the design and functioning of a process for dispensing justice to those members of the former governing regime who committed serious criminal acts, especially torture and crimes against humanity. Thus, TJ, according  to Mark  Freeman,  is “justice  [that] focuses on the challenge of confronting legacies of mass abuse”.

While  numerous modes  of  TJ  have  been employed over time, ranging from war crimes prosecutions at Nuremburg after World War II to the truth commissions of more recent times, TJ practitioners and states undergoing a TJ process usually emphasize issues of national reconciliation, victims’ rights and concerns, uncovering the truth about human rights abuses prior to the transition, and how best to dispense justice. These elements and others differentiate TJ from normative modes of justice, especially in relation to punishment for serious criminality. The field of TJ is very broad, encompassing at a minimum international law, political science, psychology, history, and ethics. Unsurprisingly, the field of criminology, given its noted parochialism, has given little attention to TJ despite its strong connections to victims and focus on punishment. A notable exception is the work of Stanley Cohen, especially States of Denial: Knowing About Atrocities and Suffering (2001).

It is only possible here to give a brief summary of the modes of TJ that have been mobilized in the service of political transitions and the associated issues. Early forms of TJ established in Central and South America, including Bolivia, Argentina, Uruguay, and Chile, were primarily forms of inquiry into past abuses that did not hear public testimony about issues such as “disappearances” for fear of the possible consequences, including an aggressive response by the armed forces. Thus, the “truth-seeking” element offered to victims of abuse and commonly included as a trade-off for amnesty was absent.  Over  time new modes  of TJ became more victim-centered and “truth commissions” became the new model for TJ. Especially important was the 1995 South African Truth and Reconciliation Commission (TRC), notable for features such as: a limited form of individual amnesty given only in exchange for truth-telling, wide public consultation concerning its powers and functions, the incorporation of its mandate in a law, and the close involvement of civil society in shaping its mandate.

Origins and Context of Transitional Justice

In reviewing the conceptual foundations of TJ, Paige Arthur traces its emergence to “an international web of individuals and institutions whose internal coherence is held together by common concepts,  practical  aims and distinctive  claims for legitimacy.” Arthur stresses that the field of TJ emerged at the international level and that its knowledge base was comparative. She explains how TJ was fashioned to meet certain practical needs as states, initially in South America, transitioned from military rule to democratic models. Previously, human  rights activists had focused on shaming abusive regimes, but when regime change occurred activists shifted to the issue of accountability for past wrongs.  Human rights advocates from various disciplines, interacting especially through conferences, are said to have shaped  discourses  about  democracy,  law, and justice into concrete forms of action that would ensure that  violations  of human  rights occurring before the transition would be confronted and victims’ stories heard. Indeed, while “transition to democracy” was the dominant lens at the time, the term transitional justice signaled a novel form of human rights activism aimed at transitional contexts.

A landmark event in the evolution of TJ was the publication in 1995,  in four volumes,  of Neil Kritz’s Transitional Justice: How  Emerging Democracies Reckon With Former Regimes, which Arthur  called “a canon  of transitional justice literature.” Thus, TJ was deployed as a moral imperative with transitional actors having a mission to satisfy what Guillermo O’Donnell and Phillippe Schmitter define as “standards of what is decent and just.” A debate that identified and analyzed emergent issues within TJ took place at the 1988 Aspen Institute  Conference, where  participants  identified  TJ  issues  as: whether international law required that human rights  violators  receive  punishment, whether states were obliged to state the truth about past violations, how to deal with abuses committed by military forces, and to what extent discretion and prudence might play a part in justice responses to past abuses. Questions about  the impact of international law on amnesties granted to former officeholders and the military continue to be raised.

Theoretical Considerations

The  theoretical underpinnings of  TJ  remain largely unexplored, but issues of law, punishment, justice, reconciliation, and truth-seeking interacting together could constitute elements of any single theory. In this respect, TJ mirrors the difficulties of theorizing  the concept of restorative justice. One theoretical perspective suggests that a systematic analysis of the legal processes occurring in the transition from the old to the new regime would better explain the role of law in TJ processes.

Thus, Ruti G. Teitel argues for the emergence of a distinctive jurisprudence of TJ in which the law looks both backward and forward, bridges the gap between the old and the new, and emergent rule-of-law  values are a function  of the political and historical  legacy in which law is now operating. Punishment, it is argued, is not simply a matter of ensuring accountability but is directed at furthering the political transformation in a state, and therefore may involve questions of amnesty, mercy, and reconciliation not commonly found in regular criminal justice processes. What is considered fair and just may consequently be conditioned by past injustices and the political conditions applying during the transition. The transitional jurisprudence suggested by Teitel is of central importance in any transition because, as she puts it, “The language of the law embues the new order with legitimacy and authority.”

Legal, Political, and Ethical Issues and Transitional Justice

Ethical questions in TJ have centered on whether it is morally correct for modes of transitional justice to authorize amnesty to be granted for alleged serious criminal acts so that criminal actors of the former regime escape punishment. The literature on amnesties and TJ is replete with arguments about the status of amnesties under international law, and that discipline has provided the frame through which academics and TJ practitioners have viewed the concept of amnesty. United Nations’ pronouncements about the legitimacy of amnesties (where radical shifts in official statements have occurred over time) have been analyzed as part of the politics of TJ and amnesty-granting.

In terms of international law, the creation of the International Criminal Court and other developments in punishing criminality under international law have impacted state sovereignty so that, according  to Freeman, “amnesty outcomes  are no longer within any individual state’s or institution’s control.” The relationship between amnesty and TJ remains highly controversial, largely as a result of the negative impact of an amnesty on the function of prosecuting persons for criminal conduct. Punishment is retributive in nature and an amnesty prevents the retribution that a society expects for violation of behavioral norms. Therefore, failure to punish is seen itself to be an injustice. In sum, many argue that because of treaty obligations to prosecute for serious offenses and other binding requirements to investigate human rights abuses and remedy human  rights violations,  international law prohibits the granting of amnesty. Thus, as Louise Mallinder puts it, “Anti-impunity campaigners argue that any form of amnesty for serious violations of international law would violate states obligations to ensure victims’ rights to truth, justice and reparations.” Others dispute this categorical position, arguing that since international law does not expressly prohibit amnesty in any human rights, humanitarian, or criminal law treaty, there is nothing to prevent amnesty-granting. Some scholars argue that while international law prohibits the granting of broad amnesties, the power to grant limited amnesties would not be a violation and represents what Juan E. Méndez describes as an “important tool in the conflict resolution process”.

The politics of amnesty-granting have shifted over time, with the United Nations (UN) Secretariat first treating them as a political issue but now perceiving them to be a legal issue extending beyond the sovereignty of a state. Thus, the South African limited amnesty model would now not be authorized by the UN. In 2004, the UN secretary general issued a report on “The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies,” by which, according to Freeman, the UN Secretariat undertook to ensure that peace agreements “reject any endorsement of amnesty for genocide, war crimes, or crimes against  humanity, including  those  relating  to ethnic, gender and sexually based international crimes [and] ensure that no such amnesty previously granted is a bar to prosecution before any United Nations-created or assisted court.” Shortly after the issue of this report, the UN boycotted the Commission on Truth and Friendship jointly established by Indonesia and TimorLeste. The UN took this action because the commission was empowered to recommend amnesty for those who provided confessions of violations of human rights.

Ethical Debate

Ethical arguments in TJ tend to focus on the morality of granting amnesties for serious human rights violations as against imposing regular punishment. In other words, the question is whether the TJ process actually delivers justice. Teitel tentatively  suggests  that  instead  of punishing all offenders, selective or exemplary trials might serve the same purpose without undermining democratic processes, including the rule of law. Given that  as a matter  of practice limitations occur in the operation of systems of punishment in TJ, including amnesties (termed the “limited criminal  sanction”), Teitel  argues  that  in TJ limited criminal sanctions constitute acceptable retribution based on the characteristics of nondemocratic rule and the criminal justice system’s probable lack of legitimacy. In asking the question of punishment or impunity, Teitel responds that anti-impunity advocates see amnesties as a “selling out” of justice, while she suggests that “restraint in the punishment power … heralds the return to the rule of law, and that there are other restraints, such as the discretion to prosecute, that also curb the power to punish in nontransitional circumstances.

Freeman believes amnesties ought to be permitted in circumstances, “Where public security and the human rights related thereto are jeopardized on a mass scale by the threat of prosecution.” Consistent with this stand, the Sierra Leone Truth and Reconciliation Commission described the amnesty provisions of the Lome Peace Accord as“necessary in the circumstances that prevailed at the time,” and noted that,“Disallowing amnesty in all cases would be to deny the reality of violent conflict and the urgent need to bring such strife and suffering to an end.” Similarly, a reconciliatory approach to amnesty is illustrated in the 1994 Interim Constitution of South Africa, which provides that “there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for Ubuntu but not for victimization.” (In South Africa, indigenous cultural traditions include Ubuntu, which calls for tolerance rather than retribution).

In a careful analysis of the morality of amnesties, Amy Gutmann and Dennis Thompson investigate the moral foundations of truth commissions, arguing that “trading criminal justice” for “social reconciliation” must overcome three moral  challenges:  the  justification  must  itself be moral and equate to the justice being “sacrificed”; the truth commission must be morally justified by offering a rationale that is accessible and that appeals to all citizens on the basis of a need for social cooperation, and not only to certain groups; and the justification must be moral in practice in the sense that the truth commission is itself an exemplar of what is morally right, and thus acts in a fully moral fashion in undertaking its business.

Some, however, argue that truth commissions, by taking testimony  from victims and oppressors, are moral instruments because they reveal more of the truth—something a prosecution does not necessarily accomplish. Others claim that the specific historical circumstances investigated by the truth commission shape the demands of “justice” and allow the application of a special conception of justice.

While the moral complexities of TJ continue to engage scholarly interest, it would seem that the overall debate about the justice of TJ is largely carried out in the realm of international law. Ultimately, however, the political and social exigencies of a postconflict situation, including the relative strengths of formerly opposing parties in bargaining about the elements of reconciliation, are more likely to determine the shape of the postconflict justice outcome.

Bibliography:

• Arthur, P. “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice.” Human Rights Quarterly, v.31 (2009).
• Bass, G. J. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press, 2000.
• Clark, P. “Creeks of Justice: Debating Post Atrocity Accountability and Amnesty in Rwanda and Uganda.” In Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives, F. Lessa and L. Payne, eds. Cambridge: Cambridge University Press, 2012.
• Cohen, S. States of Denial: Knowing About Atrocities and Suffering. Cambridge: Polity Press,
• Elster, J. Closing the Books: Transitional Justice in Historical Perspective. New York: Cambridge University Press, 2004.
• Freeman, M. Necessary Evils: Amnesties and the Search for Justice. Cambridge: Cambridge University Press, 2009.
• Hayner, P. B. Unspeakable Truths: Facing the Challenge of Truth Commissions. New York:Routledge, 2002.
• Mallinder, L. Amnesty, Human Rights and Political Transitions. Portland, OR: Hart Publishing, 2008.
• Méndez, J. E. “Foreword.” In Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives, F. Lessa and L. Payne, eds. Cambridge: Cambridge University Press,
• O’Donnell, G. and P. Schmitter. Transitions from Authoritarian Rule. Baltimore, MD: Johns Hopkins Press, 1986.
• Rotberg, R. I. “Truth Commissions and the Provision of Truth, Justice, and Reconciliation.” In Truth v. Justice: the Morality of Truth Commissions, R. I. Rotberg, and D. Thompson, eds. Princeton, NJ: Princeton University Press, 2000.
• Teitel, R. G. Transitional Justice. New York: Oxford University Press, 2000.

This example Transitional Justice Essay is published for educational and informational purposes only. If you need a custom essay or research paper on this topic please use our writing services. EssayEmpire.com offers reliable custom essay writing services that can help you to receive high grades and impress your professors with the quality of each essay or research paper you hand in.

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Book Bans Are on the Rise. But Fear of Fiction Is Nothing New.

Nearly 2,400 years ago, Plato worried that stories could corrupt susceptible minds. Moral panics over fiction have been common ever since.

For Plato, storytelling was a license for bad behavior. Credit... Ricardo Tomás; Photos, via Getty Images

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By Lyta Gold

Lyta Gold is an essayist and fiction writer, and the author of “Dangerous Fictions: The Fear of Fantasy and the Invention of Reality,” which will be published in October and from which this essay is adapted.

• July 1, 2024

The fear of fiction waxes and wanes, spiking every couple of decades like some kind of hysterical cicada. The current wave of book bans may be the worst since the 1980s, but we’ve seen this sort of thing before, and we’ll see it again.

The ’80s bans were driven by religious conservatives, dovetailing with the “ satanic panic ” over books and games involving magic, such as Dungeons & Dragons. Before that, in the 1950s, anxiety centered on trashy paperback novels and comics, which were said to cause “moral damage” and a “loss of ideals” in young people that would invariably lead to a life of crime. In the 1920s and early 1930s, the culprits were sexy Hollywood movies and modernist novels such as “Ulysses,” which — lest people engage in too much sex and modernism — resulted in the Hays Code and more book bans.

Earlier still, at the turn of the 20th century, people blamed America’s problems on dirty books and images that could be ordered through the mail. In the centuries before that, there were bouts of concern over penny dreadfuls, women’s novels, chivalric romances and comedic plays, going back through the ages to the fourth century B.C., when Plato declared in “The Republic” that all stories and other artistic “imitations” of reality — including poetry, music and painting — were unacceptable in an ideal society unless they could be proved to impart rational, wholesome values.

While the context changes, fear of fiction seems always to boil down to fear of one’s society and the people who live in it. Other people’s minds are frightening because they are inaccessible to us; one way we can know them is through their representations in fiction. We know that fiction affects us profoundly and mysteriously, and that other people are affected just as strongly and unpredictably as we are. Which means it’s at least theoretically possible that art could seduce our fellow citizens into wicked beliefs.

Moral panics over fiction are common in democracies, because the inner lives and motives of others matter a great deal in a democracy, arguably more so than in other political systems where people have less direct control over their social experience — and less freedom of expression. In a democracy, your fellow citizens can organize for social progress or encourage the passage of draconian laws that terrorize minorities. Fear of other people, and how they might work together to shift reality, is the reason the contest over written language so often extends to the realm of make-believe — of fiction. Fiction is the story of other people; this is what makes it dangerous.

Most histories of dangerous fiction begin with Plato, though anxiety about the pernicious effect of stories can be found in fragments of work by earlier Greek philosophers, who criticized the epic poetry of their day for portraying the gods as murderous, adulterous jerks. In “The Republic,” Plato expands on these early concerns: When people encounter stories about gods and heroes behaving badly, what stops them from imitating what they hear? When the poets sing about Achilles mourning Patroclus, won’t the audience think it’s OK to cry over dead loved ones, like a woman? When Achilles looks Agamemnon in the face and calls him a “winebibber, with the eyes of a dog and the heart of a deer” — I mean, what if you said that to your dad? A cop? The president?

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How government has prepared for rollout of 3 new Criminal Laws

The ministry of home affairs launched various initiatives for effective implementation of the three new criminal laws and creating awareness..

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• Three new criminal laws to replace colonial-era codes
• Initiatives launched for effective implementation and awareness
• Training and tech upgrades for seamless transition to new laws

The three new criminal laws -- Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam -- will come into effect across the country from Monday. These laws will replace the colonial-era Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act, respectively.

The new laws will bring in a modern justice system, incorporating provisions such as Zero FIR, online registration of police complaints, summonses through electronic modes such as SMS and mandatory videography of crime scenes for all heinous crimes.

In January this year, Prime Minister Narendra Modi said the enactment of the three criminal laws was a major change in the criminal justice system. He emphasised that the new criminal laws have been framed in the spirit of 'citizen first, honour first and justice first' and police now need to work with 'data' instead of 'danda' (baton).

Besides, the Ministry of Home Affairs launched various initiatives for effective implementation and creating awareness among all stakeholders including police, prisons, prosecutors, judicial, forensic personnel as well as general public soon after notification of the three new criminal laws on December 25, 2023.

TECHNOLOGICAL UPGRADATION

National Crime Records Bureau (NCRB)

- Twenty-three functional modifications were made to the existing CCTNS (Crime and Criminal Tracking Network and Systems) application to facilitate technology compatibility with new criminal laws, including filing of an FIR.

- Providing technical support to States/Union Territories for seamless transition to the new system.

- Support teams and call centres constituted for continuous review and assistance to States/UTs in implementation of new criminal laws.

- C-DAC (Centre for Development of Advanced Computing) is developing CCTNS 2.0 application, which is supported by secure cloud storage and will include provision for crime scene videography and collection of forensic evidence.

- On March 14, 2024, a mobile app web application called NCRB Compendium of Criminal Laws was launched, which was uploaded on NCRB, Ministry of Home Affairs, Bureau of Police Research and Development (BPR&D), Sardar Vallabhbhai Patel National Police Academy (SVPNPA) and iGot websites and on Google Play Store and iOS. It currently has about 1.2 lakh users.

National Informatics Centre (NIC)

- e-Sakshaya, Nyayashruti and e-Summon apps were developed to facilitate videography and photography of crime scenes, judicial hearings and electronic service of court summons under the new criminal laws.

- e-Sakshaya app facilitates videography, photography of crime scenes as well as onboarding of documents, it has been shared with the police departments of all States and Union Territories. All States/UTs have also tested the app.

- Nyaysruti App facilitating judicial hearings and onboarding of documents through electronic mode has been shared with all States/UTs and with e-Committee of Supreme Court for implementation in courts.

- e-Summon App facilitates service of court summons electronically.

CAPACITY BUILDING

Bureau of Police Research and Development (BPR&D)

- Thirteen training modules developed for capacity building of stakeholders viz police, prisons, prosecutors, judicial officers, forensic experts and central police organisations.

- 'Training of Trainers' model adopted for training master trainers of all States/UTs through Central Academy of Police Training (CAPT), Bhopal and Central Intelligence Training Institutes (CDTI) Kolkata, Hyderabad, Chandigarh, Jaipur, Ghaziabad and Bengaluru.

- 250 training courses/webinars/seminars have been organised so far and 40,317 officers/personnel have been trained.

- States/UTs have also carried out capacity building of 5,84,174 officers, including 5,65,746 police officers and prison, forensic, judicial and prosecution personnel, in collaboration with BPR&D.

- Control rooms have been set up with a team of law and police officers to address queries and issues raised by field personnel in the implementation of the new laws.

- Higher Education Department: University Grants Commission (UGC) distributed informational flyers to 1,200 universities and 40,000 colleges and AICTE wrote to about 9,000 institutions to make teachers and students aware of the three laws. So far, information has been received from 114 higher education institutions.

iGOT-KARMAYOGI BHARAT

- Three courses [introduction to BNS (52 min 42 sec), BNSS (1 hr 22 min) and BSA (15 min 38 sec)] are being made available as a curated program on iGot from February 21, 2024. iGOT is a comprehensive government platform to guide civil service officials in their capacity building journery.

Overall status of courses

- Officers enrolled in all 3 courses (2,17,985),

- Officers who have completed at least 1 course (1,87,046),

- Officers who have completed all 3 courses (1,53,037)

- These courses are also included as a part of the proficiency program for IAS trainees under Phase 1 on iGOT.

- On May 17, 2024, BPR&D also uploaded 3 new courses [Overview of BNS (1 hour 22 min), BNSS (1 hour 38 min) and BSA (1 hour 14 min)] on iGot for field practitioners.

PUBLICITY AND AWARENESS CAMPAIGN

- BPR&D is coordinating the efforts of a group of ministries for a coordinated publicity campaign.

- Thematic posters and flyers were prepared and shared with all concerned departments.

- Ministry of Information and Broadcasting,

Press Information Bureau

- Wide publicity of the new laws on social media platforms through publication of advisories, press releases, infographics etc. related to the three new criminal laws.

- Posting of content on social media platforms of ministries for wide publicity.

- Dialogue workshops were organised in 20 state capitals, primarily for regional mediapersons, to discuss the benefits of implementation of the new criminal laws. Dialogues have gained wide traction with full participation of regional media. Dialogues are also being organised in the remaining 12 state capitals.

All India Radio/Doordarshan

- Events/activities on the new laws were covered through news bulletins, programmes and discussions and social media platforms.

- Special in-depth discussion programmes have been organised regularly with subject experts, representatives of various political parties and journalists.

- Explanatory videos about the new criminal laws were posted in between the programmes.

- Informative flyers were uploaded on the Transforming India website. These links were further disseminated through all MyGov social media handles.

- Dissemination through e-Sampark: For public awareness, e-mail was sent to the entire contact database of more than 7 crore people on February 19.

- A quiz was conducted on MyGov platform on 14 March 2024 to spread awareness. As of March 27, 15,830 users participated in the quiz and the top 20 winners were announced on April 9.

INCLUSION IN CURRICULUM/TRAINING PROGRAMMES

- Bar Council of India has made it mandatory to include the three new criminal laws in the curriculum of universities and legal education centres from the academic year 2024-25 (May 20, 2024).

REVIEW MEETINGS

Home Secretary held nine review meetings with Ministry of Information and Broadcasting, Ministry of Women and Child Development, Department of Higher Education, Department of School Education and Literacy, Department of Legal Affairs, iGoT-Karmayogi India, MyGov, BPR&D, NCRB and NIC for publicity campaign, training and capacity building.

Home Secretary held five review meetings with Chief Secretaries and Directors General of Police of States/UTs to prepare a time-bound roadmap for successful implementation of the laws.

PROPOSED EVENTS FOR JULY 1

— UGC, AICTE and CFIs as well as all Higher Education Institutions in States/UTs will organise a day of activities on July 1, comprising of Group Discussions, Workshops, Seminars, Q&A Sessions, Quiz on various provisions of the new criminal laws to highlight the major transformation aimed at achieving the goals of justice with wide participation of students, faculty and other staff.