International Journal of Transitional Justice - recent issues

Editorial Note-Transitional Justice Globalized

Teitel, R. — 2008-05-20

Serbia After the Criminal Past: What Went Wrong and What Should be Done

Dimitrijevic, N. — 2008-05-20

This article explores the relationship between the recent criminal past and the contemporary socio-political condition in Serbia. Basic assumptions employed are that the recent past is defined by collective crimes, this past has retained relevance after the regime change of October 2000 and that Serbia has thus far chosen the wrong methods for dealing with its criminal legacies. Due to the persistence of damaging political, cultural and moral attitudes about the past, the overthrow of Slobodan Milosevic has failed to bring about the necessary political and moral break. Thus, it is legitimate to explore alternative ways of coming to terms with the legacies of past crimes, including, as this article proposes, the establishment of a truth commission in Serbia.

Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition

Daly, E. — 2008-05-20

Truth commissions have become so fashionable in times of transition that one can readily recognize what might be called a ‘truth cascade.’ The commissions, and the reports they produce, are reputed to promote many of the goals at the heart of the transitional justice project: helping victims to heal, promoting accountability, drawing a bright line between the past and the present, promoting reconciliation and so forth. And yet, a closer look at the truth-seeking enterprise suggests that it may not be able to deliver on these promises. This article explores both the intrinsic and instrumental reasons why truth commissions may not be effective in promoting the goals attributed to them. The article does not argue that transitional governments should not pursue the truth, but it does urge governments to use caution and careful planning when they do so.

A Trojan Horse? Unionism, Trust and Truth-telling in Northern Ireland

Lundy, P., McGovern, M. — 2008-05-20

The aim of this article is to examine the relationship between trust, testimony and truth recovery processes as part of post-conflict transition. The paper uses the case study of unionist attitudes toward a community-based truth-telling project in Northern Ireland to demonstrate the impact an absence of trust can have upon what the French philosopher Paul Ricoeur has described as the ‘space of controversy’ that emerges between the ‘certification’ and the ‘accreditation’ of testimony. The paper suggests such distrust is a legacy, not only of conflict, but also of the particular circumstances of transition and the specific mechanisms of truth recovery adopted. Ultimately the paper argues for a holistic, community-centred approach towards truth-telling and raises issues relevant to other violently divided societies undergoing transition and grappling with ways in which to deal with the legacy of political conflict.

Victim Reparations in the Peruvian Truth Commission and the Challenge of Historical Interpretation

Garcia-Godos, J. — 2008-05-20

The Peruvian Truth and Reconciliation Commission (Comisión de la Verdad y Reconciliación (CVR)) has been praised for challenging positivist approaches to truth by focusing on victims and narrative interpretation. In this article, I argue that such a focus is not as problem-free as widely assumed. In spite of its normative human rights base, the CVR underestimated the issue of historical and political recognition of particular actors during the Peruvian armed conflict – an issue that bears practical and tangible consequences for the actors involved. I use the case of peasant self-defense groups and their treatment regarding potential reparations benefits to explore the challenges involved in combining a human rights agenda with issues of historical interpretation.

Human Rights Politics and Injustice: Transitional Justice in Argentina and South Africa

Humphrey, M., Valverde, E. — 2008-05-20

Transitional justice is about the recovery of the rule of law and justice after mass violence. In the recent history of Argentina and South Africa, human rights politics have played an important role in the transition from repression to democracy as a discourse of resistance to state repression and as a framework and methodology for the successor state to manage demands for justice and promote reconciliation. Post-transition, they have provided a standard for the accountability of state institutions and evaluation of the democratic government's performance. In this article, we explore the roles of victims, survivors and relatives in the expansion of human rights politics. We argue that victims represent their suffering as embodied injustice and make their victim identity the focus of efforts to recover a moral contract between state and citizens. The expansion of human rights politics to include social and economic rights is an expression of the limits of transitional justice in recovering full citizenship in the context of the neo-liberal democratic project in Argentina and South Africa.

Kozarac School: A Window on Transitional Justice for Returnees

Sivac-Bryant, S. — 2008-05-20

The majority Bosniak town of Kozarac, now within the entity of Republika Srpska (RS), is regarded as one of the most successful returnee communities in Bosnia. The ethnic cleansing that the town endured in 1992 is gradually being reversed with the re-establishment of civic life in the town. In this difficult process, education is at the heart of the struggle for reconstruction and recognition. This article traces the development of the Kozarac primary school since the end of the war. It highlights returnees’ experiences and obstacles they have encountered in their attempt to restore primary school education for children in a divided and often hostile post-conflict society. It illustrates how the neglect of local authorities can undermine the process of educational reform and perpetuate identity divisions into the next generation, rather than contribute to reconciliation. The article concludes by noting that more attention needs to be paid within transitional justice policies to the reform of both the structure and content of educational institutions in order to contribute to sustainable community-level reconciliation.

Taking Wrongs Seriously: Acknowledgment, Reconciliation, and the Politics of Sustainable Peace, Trudy Govier

Minow, M. — 2008-05-20

Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach, Nancy Amoury Combs

Rothenberg, D. — 2008-05-20

List of Reviewers

2008-05-20

Editorial Note

Pillay, N. — 2007-12-29

Women and Reparations

Rubio-Marin, R., Greiff, P. d. — 2007-12-29

Reparations for victims of gross human rights violations are becoming an increasingly acknowledged feature in post-authoritarian and post-conflict societies coping with the legacy of a violent past. Despite some recent progress much more work needs to be done for massive reparations programs to respond better to the needs of women. This article, resting as it does on a comprehensive conception of reparations, outlines both the procedural and substantive components of reparations programs necessary for the programs to fulfill the goal of providing (partial) justice to women.

Underenforcement and Intersectionality: Gendered Aspects of Transition for Women

Ni Aolain, F., Rooney, E. — 2007-12-29

The transitional justice field has generally been preoccupied by ‘dealing with the past.’ Increasingly, it is also understood as enabling conflicted or politically unstable societies to integrate liberal democratic norms into processes of state-building or regime reform. Building on previous work, this article asserts that transitional justice encompasses far more in conceptual and policy terms. Two substantive arenas have generally been overlooked: underenforcement of change processes with transformational effects for women and the application of intersectionality theory to the experiences of women in post-conflict societies. This article addresses those lacunae.

'When We Wanted to Talk About Rape': Silencing Sexual Violence at the Special Court for Sierra Leone

Kelsall, M. S., Stepakoff, S. — 2007-12-29

This article explores the legal and psychological ramifications arising from the exclusion of evidence of sexual violence during the Civil Defence Forces (CDF) case at the Special Court for Sierra Leone. Using empirical findings from post-trial interviews conducted with the ten victim-witnesses who were originally to testify, we juxtapose what the Special Court allowed the women to say, and what the women themselves wanted to say. From a legal perspective, we then critique the Trial Chamber's reasons for excluding the evidence and question the legal bases upon which the women were silenced, arguing that wider and wider circles of the women's experience were removed from the Court's records despite there being ample authority at an international level to support inclusion. We further look at the gendered biases in international criminal law and how expedience and efficiency usurped the significance of prosecuting crimes of sexual violence in this instance. From a psychological perspective, we discuss the consequences that the act of silencing had for the witnesses, and argue that a more emotionally sensitive understanding of the Court's notion of ‘protection’ is required.

Masculinity and Transitional Justice: An Exploratory Essay

Hamber, B. — 2007-12-29

In recent years, there has been a growing focus on including women in transitional justice processes. Some scholars question whether transitional justice mechanisms take obstacles for women, such as ongoing domestic violence, into account. This article follows this line of inquiry using the prism of ongoing violence against women in South Africa. It focuses on masculinity, and questions the degree to which masculinity, and violent masculinities in particular, are considered in transitional justice studies. The article calls for a nuanced understanding of masculinities and their relationship to transitional justice, and sets parameters for a more concerted study of the subject.

Depoliticised Speech and Sexed Visibility: Women, Gender and Sexual Violence in the 1999 Guatemalan Comision para el Esclarecimiento Historico Report

Rosser, E. — 2007-12-29

This paper analyses how concepts of gender, sexual violence and women functioned within the 1999 Guatemalan Commission for Historical Clarification (CEH). Through a discourse analysis of the text of the CEH report, I argue that because the Commission presents data about sexual violence without a more broadly integrated gender analysis, it fails to recognise indigenous women, or their claims, as political and thus reinforces their marginality. I situate this report in the context of universalising discourses of human rights and democratisation, in which women's participation is held up as evidence of gender correctness while what they say is often of less concern. Amidst calls for gender mainstreaming and ‘women's rights as human rights,’ truth commissions and human rights bodies must work harder at the conceptual level to interrogate how gender, ‘race,’ class, nation and other intersecting oppressions are at work, both during a genocide and afterwards, in the construction of truths and the reconstruction of societies.

The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia

Campbell, K. — 2007-12-29

Recent efforts to develop and implement progressive models of transitional justice have been significantly influenced by major developments in the law concerning sexual violence in armed conflict. In particular, the International Criminal Tribunal for the former Yugoslavia has pioneered accountability for sexual violence against women in armed conflict. This article takes the ICTY as a case study of how gender can structure the accountability mechanisms of transitional justice. The article analyses how legal norms and practices instantiate and reiterate, rather than transform, existing hierarchical gender relations. It considers the existing models of sexual violence as a criminal harm under international law, and then examines gendered patterns of legal practice in ICTY prosecutions. To address this engendering of transitional justice, the article produces a new model of the harm of sexual violence in conflict, suggests the development of a new international offence of sexual violence and generates different strategies for international prosecutions of sexual violence.

Confronting the Reality of Gender-based Violence in Northern Uganda

Okello, M. C., Hovil, L. — 2007-12-29

Two decades of conflict in northern Uganda have had a devastating impact on the lives of thousands of civilians. Like so many of today's ‘dirty wars,’ gender-related crimes have been pervasive. While numerous disciplines over the past century have developed sophisticated theories for understanding the nature and agency surrounding sexual offences, the nascent field of transitional justice is only just beginning to grapple with these issues or design appropriate measures of redress. This paper is based on research undertaken to look at issues of gender-based violence (GBV) in four camps for the internally displaced in northern Uganda in order to provide insight into the nature and prevalence of GBV within a specific context. The findings show that specific GBV dynamics need to be scrutinised within zones of conflict and taken into consideration in the policies adopted post-conflict. The paper both illuminates the nature of such abuses within the Ugandan context and points to the need for concerted attention to be paid to the pervasive gender dimensions of violence when designing transitional justice mechanisms.

The Nairobi Declaration: Redefining Reparation for Women Victims of Sexual Violence

Couillard, V. — 2007-12-29

This paper explores the contribution of the Nairobi Declaration on the Right of Women and Girls to a Remedy and Reparation to the problem of delivering justice through reparation programmes for women victims of sexual violence in conflict situations. It highlights that this civil society initiative is particularly significant because it gives voice to women and girls who are survivors of sexual violence. Placed in the context of the recent adoption by the United Nations' General Assembly of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, the Nairobi Declaration redefines reparation and guides policy-making to implement the right to reparation specifically for victims of sexual violence. The concept of reparation as a transformative and participative process put forward in the Nairobi Declaration constitutes its most innovative and inspiring contribution.

What Happened to the Women? Gender and Reparations for Human Rights Violations, ed. Ruth Rubio-Marin

Zoglin, K. — 2007-12-29

Amnesty after Atrocity? Healing Nations after Genocide and War Crimes, Helena Cobban

Rigby, A. — 2007-12-29

Atrocity, Punishment, and International Law, Mark A. Drumbl

Goldstone, R. J. — 2007-12-29

Editorial Note

2007-08-30

Memory Frictions: Localizing the Truth and Reconciliation Commission in Sierra Leone

Shaw, R. — 2007-08-30

This paper concerns the frictions of engagement when transitional justice mechanisms are implemented in local contexts. My focus is the practice of truth-telling as part of a global paradigm of redemptive memory. I first trace the genealogy of this paradigm, examining how it came to appear ‘natural’ and ‘universal.’ Second, I explore struggles over memory that ensued when Sierra Leone's Truth and Reconciliation Commission (TRC) assertively promoted this paradigm in a region in which alternative memory techniques reflected popular priorities in an unstable context of ‘no peace, no war.’ These struggles were rooted not only in the contested content of memories, but also in a perceived incommensurability between contrasting memory projects believed to have divergent implications for processes of reconstruction. Finally, I examine the significance of reparations both for local practices of post-war memory and for the local effectiveness of the TRC.

Can Amnesties and International Justice be Reconciled?

Mallinder, L. — 2007-08-30

When states are attempting to recover from periods of serious human rights abuse, they often must try to reconcile the competing demands of different stakeholders. These demands may range from claims that complete impunity is a necessary sacrifice to achieve peace, to the belief that without justice no meaningful peace can be reached. This paper will attempt to highlight the ways in which international courts and quasi-judicial bodies address the dilemma of peace versus justice, in relation to amnesty laws. The discussion will consider the main international standards on impunity, the international jurisprudence relating to amnesties and whether international courts should recognize amnesties that are accompanied by alternative forms of justice. This paper will argue that international courts should recognize amnesties that are introduced with democratic approval to promote peace and reconciliation, provided that they are accompanied by mechanisms to fulfil the victims' rights.

Empirical Research and the Development and Assessment of Transitional Justice Mechanisms

Pham, P., Vinck, P. — 2007-08-30

In this paper, we demonstrate different methods of empirical research available to transitional justice practitioners and scholars. Guidelines on how to conduct research in the field of transitional justice are outlined on the basis of the principles of monitoring and evaluation for decision making, program development and policy development. We argue that such methods offer policy makers a systematic way to consult a population and construct a comprehensive view of what this population has experienced (e.g., violations), what they know (e.g., knowledge of various transitional justice mechanisms), what they believe in (e.g., definition of justice) or what they need (e.g., accountability). Such knowledge is essential for developing effective evidence-based transitional justice programs.

A Model for Dealing with the Past in the Israeli Palestinian Context

Dudai, R. — 2007-08-30

This article explores the potential applicability of transitional justice ideas to the Israeli–Palestinian context. I argue that given the particularities of the Israeli–Palestinian setting, truth and reconciliation would be an essential component of peacemaking even though this is an inter-societal conflict which will likely be resolved only through separation into two states. Nevertheless, the interstate nature creates challenges to the application of common transitional justice mechanisms. In response to these challenges I offer a model based on an incremental process of narrow mechanisms throughout a long process of transition, rather than one high-profile all-encompassing mechanism in the post-conflict stage. I also suggest that in addition to issues to be explored jointly by the two societies, such as refugees, prisoner release and compensation for victims of violence, there could also be internal truth and reconciliation processes within each society. Finally, this model is premised on an important role for civil society initiatives.

Travails of Truth: Achieving Justice for Victims of Impunity in Nigeria

Yusuf, H. O. — 2007-08-30

Following its transition to democracy from an authoritarian military rule marked by gross violations of human rights, Nigeria established the Human Rights Violations Investigations Commission (HRVIC) in 1999. This paper critically examines the contributions of the HRVIC, popularly known as the ‘Oputa Panel,’ to the field of transitional justice and the rule of law. It sets out the process of establishing the Commission, its mandate and how this mandate was interpreted during the course of the Commission's work. The challenges faced by the Oputa Panel, particularly those that relate to its legal status and relationship with the judiciary, are analyzed in an attempt to draw useful guidelines from these challenges for other truth commissions. Recourse by powerful individuals to the judicial process in a bid to shield themselves from the HRVIC merits particular review as it raises questions regarding the transformation of the judiciary and the rule of law in the wake of an authoritarian regime.

Civil Society and Transitional Justice in Liberia: A Practitioner's Reflection from the Field

Pajibo, E. — 2007-08-30

Liberia presents an important opportunity for civil society, national government and the international community to cooperate in rebuilding a post-conflict country in a way that addresses the essential and elemental basis for building a just and durable peace. In other words, the country is poised to be a potential ‘success story,’ one that could set new trends in how African people negotiate a post-conflict coexistence on the basis of shared values, popular participation and economic and social justice. The role of civil society in particular in this process of reconstruction, and specifically issues of transitional justice, is central to ensuring that policies have broad input amongst the Liberian population, all of whom have been directly impacted by the war. This article outlines the country's trajectory from conflict to peace, the challenges of addressing the crimes of the past, the risks to newly established democratic institutions posed by a truncated or incomplete transitional justice program and the role of Liberian civil society both broadly in a newly democratic Liberia as well as specifically in regards to the establishment and functioning of the Truth and Reconciliation Commission.

Civil Society and Security Sector Reform in Post-conflict Liberia: Painting a Moving Train without Brushes

Loden, A. — 2007-08-30

This article describes the activities related to civil society's engagement with the question of security sector reform (SSR) in Liberia since the signing of the Accra Comprehensive Peace Accord (CPA) in August 2003, identifies the challenges it faces and draws lessons learned from this engagement; particularly the need to develop local capacity, networks of support and national ownership. Consideration is given to the specifics of the rapidly evolving post-conflict context in which such reforms are taking place and their connection to the field of transitional justice as a means of addressing a history of human rights abuses. The discussion also covers the scope of potential engagement for civil society in the new political landscape in Liberia that has been created by the deployment of one of the world's largest peacekeeping forces and the arrest of former president Charles Taylor.

Trial Justice. The International Criminal Court and the Lord's Resistance Army, Tim Allen

Wierda, M. — 2007-08-30

The United Nations International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, William A. Schabas

Aptel, C. — 2007-08-30

Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice, Naomi Roht-Arriaza and Javier Mariezcurrena * Reconciliation in Divided Societies: Finding Common Ground, Erin Daly and Jeremy Sarkin

Drumbl, M. — 2007-08-30