Introduction

When referring to biological, psychological, social and institutional aspects of people’s lives, the term ‘resilience’ is best used to describe processes whereby individuals interact with their environments in ways that facilitate positive psychological, physical and social development. While earlier definitions emphasised individual traits and the invulnerability of individuals who coped well with adversity (Reference Anthony and CohlerAnthony and Cohler, 1987), more contextualised research has challenged the neoliberal bias of these earlier studies (Reference Sanders, Munford, Thimasarn-Anwar, Liebenberg and UngarSanders et al., 2015). When resilience was described as a trait, even if those traits were malleable, the implication was that individuals had the responsibility to develop the qualities necessary for optimal development, whether physical, psychological or social (like attachments). Resilience as a process, however, shifts the focus from individual responsibility for change to the interactions between individuals and their environments (Reference Birgden, Arrigo and WardBirgden, 2015; Reference UngarUngar, 2015). The environment, whether referring to legal institutions, community services or the availability of intimate bonds and other antecedents of mental health (e.g., a sense of coherence [Reference AntonovskyAntonovsky, 1996; Reference Mittelmark, Bull, Daniel, Urke, Mittelmark, Sagy, Eriksson, Bauer, Pelikan, Lindström and EspnesMittelmark et al., 2017]), combines to provide individuals with the internal and external resources necessary to cope with exceptional and uncommon stressors. For this reason, when resilience is understood as a process involving multiple systems, the responsibility for optimal functioning (whether psychological well-being or peace and security) under stress is shared across many different systems and at different scales (Reference UngarUngar, 2018).

It is this understanding of resilience that informs a deeper analysis of how systems, including those concerned with governance, education, health, human rights and law, influence the ability of populations to survive and thrive in contexts where there has been exposure to extreme forms of marginalisation (e.g., racism, homophobia, poverty) or social disruption (e.g., civil war, genocide). Stabilising and improving these systems is an important and necessary part of transitional justice work and related security-oriented practices like adaptive peacebuilding (Reference de Coningde Coning, 2018; see also Chapter 11). This is especially the case when systems at the individual, family, community, national and international levels are involved at the same time in the provision of resources that people need to overcome histories of violence. Put simply, resilience, like transitional justice, requires the engagement of many different systems to create the individual and social capital necessary to cope well with adversity.

Figure 1.1 illustrates the nested relationships between these systems, with a subsystem of elements (the Xs) forming their own system comprised of the many resources required to sustain the well-being of both the individual and the individual’s community. To think about resilience at a single level, like a change in cognition or the exercise of human rights, misattributes change to the qualities of one system and risks making any change that does occur unsustainable. When multiple systems at multiple scales change at the same time, the work they do together produces a more enduring pattern of change and transformation. In practice, this means that efforts to promote transitional justice, like the interventions discussed throughout this volume, will produce the most sustainable resilience across a population when they address the systemic dimensions of war crimes and human rights abuses – and engage with different systems that give people access to new resources.

Figure 1.1 An ecological and multi-systemic model of resilience

(Reference Ungar and TheronUngar and Theron, 2020)

This discussion of commonalities between resilience and transitional justice addresses a gap in both fields, with far too little of the resilience literature paying attention to structural and judicial processes that create the conditions for people to recover from mass violence (see, e.g., Chapter 9). Likewise, transitional justice literature has rarely discussed the impact of transitional justice mechanisms – including criminal trials, truth and reconciliation commissions (TRCs) or reparations – on the resilience of a community, or the need to think ecologically about the many systems that interact (or conflict) when transitional justice processes are utilised. For example, criminal trials to address war crimes may become extremely divisive for communities, disrupting social cohesion or even traumatising some victims, even as they appear to re-establish order with regard to governance and the rule of law (Reference ClarkClark, 2014; see also Chapter 3, this volume). The science of resilience helps to explain these dynamic feedback loops in which one system’s resilience can trigger another’s success or undermine the ability of co-occurring systems to function at all.

Fortunately, in recent years, a more multidisciplinary body of research on resilience has grown to include studies of biological human systems like the microbiome (Reference Rea, Dinan and CryanRea et al., 2016), human-environment systems like epigenetics (Reference Bush, Boyce and CicchettiBush and Boyce, 2016), workplaces (Reference CraneCrane, 2017) and the natural ecologies with which humans interact – such as coral reefs, forests and wetlands (Reference Adger, Barnett, Brown, Marshall and O’BrienAdger et al., 2013). Governance and legal systems shape the context for each of these interactions, from influencing the availability of food people need to maintain health to regulating the development of farmland in nature preserves. The relationship between these systems and resilience nevertheless remains underexplored. Key processes within these broader governance and legal architectures, for example – including the promotion of human rights, peacebuilding and the restoration of rule of law – are seldom discussed through a resilience lens.

An emerging body of work on therapeutic jurisprudence (Reference WexlerWexler, 2008; Reference WinickWinick, 2009), however, is starting to address this shortcoming, by studying the impact on individual well-being of formal legal institutions, criminal trials and TRCs (Reference DoakDoak, 2011), and looking at whether new initiatives like drug courts and restorative justice improve the desistance of offenders (Reference Birgden, Arrigo and WardBirgden et al., 2015). Nevertheless, more research is needed to account for what occurs at multiple systemic levels when victims of crime seek justice. For example, we know little about the impact of transitional justice processes on victims’ mental health during and after these processes, or about how these processes affect the functioning and sustainability of other human systems like community cohesion or extended family dynamics. Fundamentally, we know little about how transitional justice and peacebuilding processes more generally can transform psychological and social systems.

It also remains the case that there is little cross-fertilisation of ideas across the fields of resilience, law, transitional justice and human rights. This is part of a wider problem; network citation analyses show that there is little transdisciplinary exchange across domains of resilience research (Reference Xu and KajikawaXu and Kajikawa, 2017). This may explain why the connection between the resilience of one system and the resilience of co-occurring systems at different scales has yet to be well explained. Further compounding the problem is the fact that definitional ambiguity exists in all fields of resilience research, although this is an issue now being addressed on many fronts (see, e.g., Reference Southwick, Bonanno, Masten, Panter-Brick and YehudaSouthwick et al., 2014).

The present volume addresses these various challenges. In this chapter, I will introduce the concept of resilience as a multi-systemic set of processes, an idea that is common to all the chapters that follow. I will then briefly show how these processes are relevant to governance, legal systems and transitional justice. The chapter will also discuss several concepts that must be accounted for when detailing the resilience of any system. These concepts include equifinality, multifinality and differential impact. Though this volume is focused on the systems involved in transitional justice and their resilience-enabling processes, potential or actual, this chapter will look more broadly at different resilience enablers in order to show that initiatives to tackle impunity, deliver justice and foster social healing and reconciliation are consistent with the principles that govern the resilience of all human systems.

A Multi-systemic Understanding of Resilience

In Rwanda after Genocide, Caroline Williamson Reference SinaloSinalo (2018) describes her narrative analysis of victims’ accounts of the genocide that unfolded during the early 1990s. Sinalo takes a controversial approach to the subject, first by arguing that there were many dysfunctional systems to blame for the atrocities, from the practices of past colonial governments to Rwandan norms regarding masculinity and warriorhood. She also, however, asserts that one can find examples of personal and social growth (also known as post-traumatic growth [Reference Tedeschi and CalhounTedeschi and Calhoun, 2004]) among survivors of the genocide – growth that is mirrored at the level of community governance, social cohesion and legal processes that have come into place since 1994.

To see this growth, one must challenge Eurocentric discourses that view trauma as the result of exposure to single episodes of an atypical stressor. According to Reference CrapsCraps (2013), trauma is more an everyday and insidious phenomenon than an unusual event. This is especially true for those who are marginalised, whether living in economically developed countries as minorities or in low- and middle-income countries, many of these with long and violent histories of colonisation (Reference Atallah, Bacigalupe and RepettoAtallah et al., 2019). In both contexts, poverty, racism and the intersectionality of multiple forms of oppression make trauma quotidian because of institutionalised forms of exclusion and dysfunction (e.g., corruption). In such a case, resilience can resist the effects of coloniality and reinforce models of Indigenous well-being (Reference SinaloSinalo, 2018).

This perspective of why atrocities occur and where responsibility lies for social repair positions resilience in a collective discourse of shared causality and complex systems. Addressing past or present human rights abuses cannot be accomplished by any one system alone. Multiple social and institutional factors must be involved, which, in turn, affect and are affected by individual responses to trauma and the continuity of those changes across time and even generations. Resilience-enablers (Reference Van Breda and Theronvan Breda and Theron, 2018) occur at multiple levels, refuting the idea that individuals bounce back from adversity, or bounce forward to new patterns of coping on their own. There is, of course, more to this critique than a simple vilification of neoliberalism. As Reference Hall and LamontHall and Lamont (2013) argue, a heightened sense of personal responsibility inherent in neoliberalism may have harmed many, but it has also opened opportunities for wealth generation on a scale never before seen in human history.

A better critique would be to understand how neoliberalism has blinded us to the locus of control of systems that must cope with extraordinary circumstances. Individual capacity to look after one’s self will only be effective when risks are relatively few. The rugged individualism promoted by US President Herbert Hoover in the late 1920s was shown to be wrong only a year later when recovery from the Great Depression required government intervention. In this sense, it was changes to governance and law which triggered an economic turnaround, even if these changes were opposed on ideological grounds by those who most benefitted from the previous regime. Social resilience, then, is ‘the capacity of groups of people bound together in an organization, class, racial group, community or nation to sustain and advance their well-being in the face of challenges to it’ (Reference Hall and LamontHall and Lamont, 2013: 2).

This shift to the social is the step we need to understand resilience across systems, though it runs the risk of making the same error that many psychologists have made – which is to focus on one level and exclude others. For example, we now know that badly traumatised people who have experienced social marginalisation or exposure to domestic violence may be genetically altered by these experiences or become neurologically susceptible if future stress occurs. Excessive burden on biological, psychological and social systems at the same time (what has been termed ‘allostatic load’ [Reference Hobfoll and FolkmanHobfoll, 2011]) compromises our ability to function socially and participate in community processes, including good governance and possibly legal proceedings. Though these connections across systems are still more conjecture than fact, a case can be built through a review of the biological, psychological and social systems literature that risk and resilience at any one system level will compromise or be advantageous to other systems at other levels. For these reasons, just as the psychological scientist needs to understand the social environment, those studying the influence of legal systems and other institutions need to appreciate the biological and psychological factors that inhibit healthy responses to social processes that are in the perceived best interest of individuals.

The experience of Rwandans before, during and after the genocide demonstrates patterns of resilience as a process occurring simultaneously at multiple levels (see also Chapter 4). Changes to a distal factor, like national policies on race, have influenced proximal systems, like peer relationships and even intransigent psychological systems related to an individual’s co-construction of personal identity. If these interrelated systems are to demonstrate resilience, whether that is recovery to a stable prior state or transformation to a new status quo, there needs to be some understanding of the mechanisms by which a change that makes one system function optimally improves the functioning of other systems as well. This may explain why Sinalo (2018) found that Rwandan men, post-genocide, tended to report a far greater sense of collective responsibility and move away from warriorship, while women shifted from thinking about themselves as ‘we’ (symbolising communion) and more as ‘I’ (symbolising greater agency and a focus on personal identity).

Of course, these ideological shifts came at a terrible price: the mass destruction and mutilation of lives. From the point of view of the study of resilience, however, such transformations suggest that processes of change look very different in different contexts. Just as trauma has been plagued by a Eurocentric bias in how it is understood and treated by the institutions tasked with responding, so too is resilience theory biased by Eurocentric notions of a shortlist of factors that promote well-being under stress that are popular in psychology. It is far better to imagine many different patterns to resilience across many different systems, from identity and gender relations to government structures, cultural practices and conflict resolution (including those that are part of transitional justice).

It is now recognised that, within different disciplines, there are generalisable principles that govern processes of resilience (for a review, see Reference Biggs, Schlüter, Biggs, Bohensky, BurnSilver, Cundill, Dakos, Daw, Evans, Kotschy, Leitch, Meek, Quinlan, Raudsepp-Hearne, Robards, Schoon, Schultz and WestBiggs et al., 2012; Reference UngarUngar, 2018). Among the most important are that resilience occurs in contexts of adversity where exposure to atypical stressors occurs and is a process that is influenced by how well people and resources interact. For this reason, I define resilience as the process through which individuals and groups navigate their way to the many different resources they need to sustain themselves and thrive, as well as the processes that systems use to negotiate for the resources that are most meaningful (Reference UngarUngar, 2011). The dual concepts of navigation and negotiation that are at the core of this social–ecological description of resilience underline the need to think about the individual’s environment and culture just as much as individual strengths and traits. To navigate does not mean individual motivation or personal agency; it implicates systems at other levels to provide the resources to individuals to support optimal functioning. Likewise, these resources must be those that the individual is able to negotiate for, so that they are provided in ways that match the individual’s belief systems or physical needs. The process is more circular than linear, with systems influencing what the individual values and needs, while individuals place demands on systems to provide novel resources as values change. In other words, individuals are not wholly autonomous in deciding which resources they need or how these resources will be provided.

For example, in research currently underway with two communities dependent upon the oil and gas industry as their major employer, my colleagues and I are documenting competing discourses concerning the resilience of these communities (Reference Mahdiani, Höltge, Theron and UngarMahdiani et al., 2020). On the one hand, community leaders and vested government interests insist on the persistence of the oil and gas industry, maintaining that it should be supported through taxation policies that preserve the industry as it is, including abolishing requirements for more fuel-efficient cars and building pipelines to get more products to market. These individuals argue fervently that they and their livelihoods are being treated unfairly and that any changes to the economic viability of their communities should be resisted. For them, their jobs and way of life are a matter of human rights.

On the other hand, there are those who perceive a rapidly approaching turn towards a zero-carbon economy and a need to dramatically decrease the production of petrochemical products. This group argues that the resilience of oil- and gas-dependent communities lies in their ability to quickly diversify their economy away from oil and gas extraction and production. For this group, the end to oil and gas production is an issue of environmental justice, though they are willing to compensate communities being affected by these changes with financial help during the transitional period. A compromise ideology supports a transformation but believes a slower period of change is required. Instituting a carbon tax, building pipelines and investing in cleaner technologies to extract and use oil and gas could give these communities the resources and time they need to adapt to a changing economy that is a response to climate change. All three processes are ways of dealing with an environmental crisis, but each reflects different patterns of navigation and negotiation for the resources that these communities value during periods of economic downturn and different definitions of what they perceive as just.

While this example is about economics and politics, it is also illustrative of how communities make themselves more resilient by changing multiple systems at once. Among those being displaced by the downturn in the oil and gas industry, there are feelings that their right to employment is being sacrificed by federal government policies and special interest groups that see these workers as expendable. These socio-economic changes also threaten individual mental health, as well as the social cohesion of the community itself. Seeking justice in the form of human rights and economic self-determination, however, has meant mostly resisting change, rather than establishing new institutional supports or arguing for compensation for retraining, relocation or economic diversification (all possible strategies for resilience).

On the other side of the debate, those who support the downturn see the closing of the industry as a means to achieve environmental justice. Viewed in this way, the factors that predict resilience will depend on which systems we want to sustain and which outcomes are preferred and by whom. As the case examples throughout this volume show, communities experiencing and engaging with transitional justice are heterogeneous, and myriad views on what constitutes ‘justice’ necessarily exist. Finding ways to build individual and social capital that different stakeholders experience as just, and therefore as a source of resilience, is a major challenge and one that requires local communities to have a say over the processes that they engage in.

The notion of resilience as a process is often misunderstood, particularly when researchers describe individuals, communities and governments as ‘resilient’. The preferred description is that these systems ‘show resilience’, meaning that they are in a process whereby they are able to take advantage of opportunities to improve their functioning. The issue is more than semantic. At the core of this ontological debate is the need to focus on what systems do to function better rather than their intrinsic qualities. Intrinsic qualities may never be realised if oppressive forces are beyond the capacity of the individual to change, with the result that resilience is reserved for the exceptional few who overcome the barriers around them. These processes, however, need not always be externally focused. As treatises on the resilience of the human spirit attest (see, e.g., Reference BeahBeah, 2007; Reference WestoverWestover, 2018; Reference WieselWiesel, 1956), reflective processes or belief in a special connection with one’s culture, God or ancestors have the power to carry us through periods of darkness. Even these responses to social injustice, however, should not be described as static traits of individuals. These are characteristics that are dormant until activated through processes that make them meaningful to the individual. In other words, resilience is always a process of realising the potential of systems.

The process of resilience is not, however, uniform. There are at least five patterns well documented in the literature (Reference UngarUngar, 2018), and each pattern is influenced by the qualities of the system under stress, human and social capital and by the economic and environmental resources available. These patterns of resilience include persistence, resistance, recovery, adaptation and transformation. A review of these patterns shows remarkable synergy between processes associated with resilience and the intent of processes and practices related to transitional justice, as other chapters in this volume demonstrate.

Dynamic Resilience: Equifinality, Multifinality and Differential Impact

Each of the five processes of resilience that were described above produce a number of different outcomes depending on the population affected and the environment that surrounds them. In general, however, the benefits of resilience are not shared equally, with different systems benefitting more or less from the change process. A number of concepts appear in the resilience literature to explain these different patterns and outcomes, among them equifinality, multifinality and differential impact. All three concepts are also relevant to the many forms of transitional justice.

Equifinality refers to various means to achieve a single desirable end. Studies of resilience tend to focus on equifinality and define a limited number of outcomes as positive aspects of change and development. When context is controlled, and homogeneity among actors and environments assumed, then the link between risk exposure, protective process and desired outcome is easier to describe. This simplified model, however, can suffer from the myopia that accompanies de-contextualisation, especially when cultural minorities and populations from low- and middle-income countries are the focus of the work. In the case of establishing peace post-conflict, or environmental justice for a community affected by rising sea levels due to climate change, the end goal may appear obvious (peaceful co-existence; a built environment that is sustainable), though the pathways to achieve these ends can still be many.

The various goals associated with transitional justice, for example, have an extensive desirability yet can look very different in different contexts, as this volume shows. As an illustration, one could debate the advantages and disadvantages of centralised power and authoritarianism in contexts where there has been a breakdown of social order and no history of democratic institutions. In such cases, an effective government may look very different during a period of transformation, while becoming dysfunctional and making a country vulnerable to future violence when it becomes institutionalised as a totalitarian regime (e.g., an elected president becomes president for life). It is common in studies of resilience to see a common set of outcomes defined for specific systems, with multiple strategies to achieve that end.

In contrast, multifinality is typical of systems that are adaptive and complex, especially when their resilience is being studied across cultures and contexts where there has been very little previous research. In these cases, there may be multiple desirable outcomes that are negotiated between local and state actors. Resilience-promoting processes may not be obvious to cultural outsiders whose Eurocentricity (or other social location) privileges one set of behaviours over another. To illustrate, women’s and men’s gender-normative behaviour can be responsive to changing economic and social conditions, making family systems more resilient. In the Philippines, for example, many women have found employment overseas as domestic workers, leaving their male partners to look after children and assume more household duties, tasks not typically taken on by men (these patterns can be disrupted when a grandmother is available to assume the role of primary caregiver for the children; see Reference ParreñasParreñas, 2000). Similarly, in Senegal, the large number of men who have migrated to Europe for work has resulted in women assuming men’s work despite the stigma of doing so (Reference SearceySearcey, 2019). In both examples, the assumption of non-traditional gender roles makes families and communities more resilient, but each context shapes which pattern of behaviour is preferred.

As these examples show, there are many similarities between the concept of multifinality as applied to resilience and Reference de Coningde Coning’s (2018) description of adaptive peacebuilding – a central concept that runs throughout this book (see also Chapter 11, this volume). de Coning challenges the idea that there is one right outcome from peacebuilding, and indeed honours multiple cultural traditions as potentially positive sources of inspiration for ways to recreate social cohesion and stability after a period of violence. As Reference de Coningde Coning (2018: 304) writes, adaptive peacebuilding:

The concept of multifinality simply describes this pattern of sensitivity to context and flexible outcomes as common to many different systems when they operate in complex environments. To understand resilience, however, one must also account for the nature of both those doing the navigation and negotiation and the environment in which it occurs. In the field of human biology, an emerging concept of differential susceptibility has shown that depending on one’s genes or other traits, interventions will have a different impact on individual change (Reference Belsky and van IjzendoornBelsky and van Ijzendoorn, 2015). Susceptibility implies individual responsibility for change with personal qualities determining which environmental trigger is most useful for personal success. Differential impact switches the focus to the quality of the environmental trigger, something which is far more malleable than individual qualities like one’s genome (Reference UngarUngar, 2017). When examining the differential impact of an intervention, social policy or legal system, one asks, ‘Which population, at what level of risk, is likely to most benefit from this support?’ The question challenges us to consider how different kinds of support produce resilience in highly stressed environments and how each is tailored to the needs of populations with specific profiles.

When interventions underperform or fail to produce desired changes in behaviour, the responsibility for the lack of success is attributed to the intervention, not the individual. The concept of differential impact, then, opens possibilities for understanding why some interventions may work better in some contexts and cultures than others (Reference Birgden, Arrigo and WardBirgden et al., 2015). It is the dynamic fit between interventions and individuals that is critical. Because the model is adaptive, it is not uncommon to see the same intervention having a positive effect with one population and a deleterious effect with another, or a small impact with one and a very large impact with another. Designing interventions to promote resilience of any system requires that attention is paid not only to the end goal but also to the quality of the interactions between those needing help and those providing it.

Making Justice Systems Resilient

The advantage of transitional justice and its many variations is that it has the potential to offer formal legal systems the means to adapt to changing demands by those using them, especially in contexts where legislated systems have largely failed to maintain peace and need to recover and show resilience. Reference Ruhl, Cosens, Soininen and UngarRuhl et al. (2021) describe formal legal systems as themselves needing this resilience if they are to be sustainable. That sustainability and effective functioning means that both formal and informal systems of accountability, whether from the courts or community talking circles, can also influence the resilience of other co-occurring systems. Reference Ruhl, Cosens, Soininen and UngarRuhl et al. (2021: 510) write: ‘Resilience in legal systems is, thus, often used to facilitate normative social purposes fulfilled through other social systems.’ For Reference Ruhl, Cosens, Soininen and UngarRuhl et al. (2021: 511), legal systems are complex, meaning that they have many interrelated parts which together form ‘a large network of components with no central control and simple rules of operation giving rise to complex collective behavior, sophisticated information processing, and adaptation via learning or evolution’.

This complexity, which is also a fundamental dimension of adaptive peacebuilding (see de Coning, Chapter 11), means that legal systems are able to respond to, or look different in, different contexts. Transitional justice processes can help them to become more responsive by broadening the definition of what constitutes a legal system to include the many ways that societies support economic and human rights, land rights and environmental justice. This means, for example, integrating cultural and/or Indigenous practices where appropriate, or using combinations of formal codified legal institutions like courts and legislation, community justice forums, collaborative law practices and other means to achieve transitional justice. These practices require many and varied systems to co-exist, though which system is needed and when will depend on the conditions in which they operate and on competing discourses of justice expressed by those whose rights have been transgressed.

These tensions are obvious in contexts like fly-in courts in the Canadian Arctic, which serve the needs of mostly Indigenous communities. In that context, the judiciary uses both formal and community-based legal mechanisms to maintain the social cohesion of communities and facilitate the reintegration of offenders. While these efforts are noteworthy, they are also controversial with some perceiving the sentencing of offenders (e.g., perpetrators of domestic violence) as too lenient to act as a deterrent (Reference RudinRudin, 2018).

Despite these difficulties, systems that promote transitional justice or the enforcement of laws and still show resilience when strained are typically those that are adaptive (Reference Murray, Webb and WheatleyMurray et al., 2019), are moving away from an exclusive focus on the individual’s responsibility for a problem and are becoming more adept at interpreting crime in ways that account for the social contexts of offenders and their past experiences of trauma (drug courts are a well-studied example; Reference Latimer, Morton-Bourgon and ChrétienLatimer et al., 2006). Thus, we are seeing a move away from the neoliberalism that characterised earlier resilience research. The earliest efforts to study resilience documented the exceptional few who did better than expected, and implied that their success could be reproduced if better understood. This initial work, however, was badly flawed, mostly because of its decontextualisation. It failed to account for different amounts of privilege and barriers to optimal human development, including access to justice. Many marginalised communities rejected resilience as a consequence, seeing it as an excuse for blaming victims of oppression who did not manage to ‘beat the odds’.

Fortunately, a shift has occurred in how resilience is understood, a conceptualisation that is much closer to the way peacebuilding is now undertaken. Where we once imagined peace as an end state, a trait of a community that was no longer at war, peace and justice are now understood as processes that are a ‘more open-ended or goal-free approach towards peacebuilding, where the focus is on the means or process, and the end-state is open to context-specific interpretations of peace’ (Reference de Coningde Coning, 2018: 301). It is this embrace of many good means to many good ends that makes resilience and efforts like transitional justice a good match.

Though all of this makes the resilience of legal systems and systems associated with transitional justice and peacebuilding seem unpredictable, these systems tend to reflect five principles when operating well. According to Reference Ruhl, Cosens, Soininen and UngarRuhl et al. (2021: 517), these include the following:

1. 1. They are reliable. When one component fails, a justice system can still maintain its resilience and function properly despite an unanticipated (or anticipated) stressor. This, in turn, means that subsystems (such as individuals seeking compensation) maintain their belief (a system of cognitions and socially constructed values) in the institutions that govern and regulate their lives.

2. 2. They are efficient. They are not overly burdened by swollen bureaucracies that make seeking justice interminable or excessively expensive. They appear accessible to the individuals needing to use formal and informal legal systems, and they promise expedient resolution of conflict. A justice system like this will encourage compliance and be more sustainable if people do not feel the need to turn to vigilantism or other forms of extra-judicial actions as when farmers arm themselves to protect their property from thieves.

3. 3. They are scalable. As problems tend to affect multiple systems at multiple levels, a justice system that shows resilience will engage in processes across jurisdictions so that local processes that may appear less formal but instil a sense of fair treatment are not subsequently overturned by a court or other legislative body. For example, if a local restorative justice process resolves a criminal matter but the individual charged still faces sanctions beyond the community, the advantages of a resilient justice system at the local level quickly diminish.

4. 4. They are modular. Justice systems show the most adaptability when there are multiple systems that can step in to resolve an issue should one system fail. In the case of environmental justice, where state governments in the United States have been lowering pollution standards to remain competitive for investment and jobs, it has taken the federal government to establish laws that are in the best interest of the country as a whole. The reverse is also true; when the federal government abdicates its responsibility to tackle challenges like climate change, it is state governments that have stepped in to press forward with legislation in areas like tailpipe emission standards (Reference VogelVogel, 2018).

5. 5. They evolve. Justice systems show resilience when they change as social contexts and natural environments put pressure on human systems. While not all justice systems need to evolve (national constitutions are meant to resist the vagaries of changing governments), laws and legal practices need to be malleable to respond to the exigencies of emerging crises, whether that is the mass migration of undocumented refugees or the need for adaptive peacebuilding efforts at a local or national level. Justice systems are most resilient when they embrace this tension between their ability to change and their need for stability over time.

Together, these five principles reflect much of what we know about resilience-promoting processes and the way justice systems like transitional justice or adaptive peacebuilding support adaptation and transformation when individuals and communities are placed under stress.

The Need for a Better Understanding of Justice Systems and Resilience

Unfortunately, there has been limited research on resilience that is sufficiently complex to capture the interactions between systems at different scales. In practice, this means that we may study individual trauma and coping strategies but not investigate whether the quality or quantity of trauma confounds the efficacy of a transitional justice initiative, or for that matter whether cultural norms and indigeneity influence the reliability of formal legal systems in contexts of extreme poverty. Where such questions do arise, protective mechanisms tend to be studied at a single scale, while risk factors like coloniality are homogenised and controlled as a simple variable that is thought to affect everyone equally. The emerging science of resilience is changing this. It is showing the need to think about complex, interacting systems and how to best account for the relationship between risk exposure, protective processes (resilience) and outcomes across multiple systems at once.

In practice, this means understanding why communities might or might not work together to preserve a natural resource given past histories of collective trauma, gender norms, economic conditions, trust in government (and each other), identity and confidence in legal systems. The following brief case examples illustrate the need for multiple systems to show resilience if new regimes of peace and security are to result. The first example shows what can happen when there are no available means for economic or social justice, while the second example illustrates what happens when residents in a community under stress are treated more fairly and in ways that support both social and environmental justice.

Conclusion

The concept of resilience is gaining traction in the discourse surrounding concepts like justice and peacebuilding, though it is not yet widely understood. When applied, the term ‘resilience’ refers to the capacity of individuals to succeed because internal and external systems work together to help people achieve their potential. Resilience also includes the capacity of these systems (including systems of justice) to demonstrate robustness and cohesion with other systems to maintain themselves, despite social and economic disruptions or natural disasters. There are multiple processes that produce resilience, depending on the environment in which individuals, communities and institutions are struggling to cope. Whether a system persists, resists, recovers, adapts or transforms is a reflection of the resources available and the discourses that define success. Protective and promotive processes need not be focused on a single end, nor can we predict with certainty how a change in intervention, public policy or transitional justice process is going to affect all members of a community. Resilience is, however, a concept that describes complex series of interactions across multiple systems and at different scales. To the extent that transitional justice, peacebuilding and legal mechanisms are adaptive and flexible with regards to the goals that they seek to achieve, the more likely resilience is to be experienced by individuals and their communities.

This chapter reflects on the implications of resilience thinking for transitional justice as a transformative process that contributes to adaptive peacebuilding. Recognising that resilience is highly relevant to a number of core transitional justice goals, including the re-establishment of the rule of law, peace and reconciliation, it discusses how the concept creates a space for new thinking about transitional justice. In so doing, it explores the extent to which transitional justice processes affect and engage with multiple interacting systems in ways that can foster resilience and adaptive capacity across these systems and the relationships that underpin them.

The chapter examines how each of the primary state-based mechanisms of transitional justice – namely, criminal trials, truth commissions and reparations – might contribute to systemic societal resilience, notwithstanding their limitations, and discusses their potential for healing divisions and building relationships to support resilient social structures. It also considers how more community-driven facilitated justice processes, including traditional customary practices and psychosocial programmes, can expand the basis for building resilient communities and systems.

As part of this analysis, the chapter provides a critical appraisal of the overall approach to transitional justice that has dominated the field, considering transformative justice as an alternative perspective that challenges a politico-legal, state-based, backward-looking retributive framework. It argues that resilience thinking supports a greater focus on psychosocial, community-based, forward-looking restorative approaches to transitional justice, consistent with the transformative turn in the field (Reference Gready and RobinsGready and Robins, 2014; Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and MiethLambourne, 2014a). This is demonstrated by exploring different understandings of justice, how they are pursued in the context of transitional justice and what they mean for building resilient societies after mass violence and human rights violations. The chapter concludes by reflecting on the potential for a transformative approach to transitional justice consistent with building resilience to support adaptive peacebuilding in practice.

Understanding Transitional Justice and Types of Justice

Transitional justice can be defined as a process intended to provide justice for mass human rights violations committed in the context of war or a past autocratic regime. The idea of ‘transition’ is key – from a past where human rights were violated with impunity to a future characterised by democracy and the rule of law, which, in turn, is assumed to lead to the protection of human rights (International Center for Transitional Justice, 2001). In the context of post-war transitions, the goals of transitional justice are more explicitly linked to peacebuilding, going beyond democracy and the rule of law to the pursuit of truth, reconciliation and institutional reform (United Nations [UN], 2004).

However, in some cases, transitional justice processes are also implemented in periods of non-transition, where justice is sought for ongoing mass human rights violations or where the regime that committed the violations in the past is still in place. Reference WinterWinter (2014), moreover, argues for a political theory of transitional justice that applies to the context of authorised wrongdoings by established democracies (such as those perpetrated against Japanese Americans during World War II). Transitional justice thinking has therefore been applied to situations of ongoing colonial and post-colonial oppression, including the treatment of Indigenous peoples by settler societies, such as in Canada where a Truth and Reconciliation Commission (TRC) on Indian residential schools was established in 2008 (Reference NagyNagy, 2013; Reference NiezenNiezen, 2013).

What transitional justice might look like thus varies across different settings. There might be a focus on retributive justice to punish those accused of committing mass atrocities as a means of ensuring non-repetition, as highlighted by the example of the International Criminal Tribunal for the former Yugoslavia (ICTY). Alternatively, the main priority might be restorative justice and/or reconciliation, with the aim of healing individuals and rebuilding relationships and communities; the TRC set up in post-apartheid South Africa is just one example. Some transitional processes involve a combination of both retributive and restorative justice. In Sierra Leone, a Special Court and a TRC operated alongside each other; and in Rwanda, the traditional gacaca community justice process (see Chapter 4) that combined retributive and restorative justice aims was adapted to deal with the crimes of the genocide.

Reparative justice, another key approach to justice, seeks to repair the damage of the past through measures such as payment of compensation to victims or collective reparations in the form of projects to benefit the community. An example of reparative justice is the moral reparations pursued in the framework of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in relation to human rights violations committed by the Khmer Rouge regime (see Chapter 7). Reference TeitelTeitel (2000: 119) lists a number of measures that can be classified as contributing to what she calls reparatory justice, including reparations, damages, remedies, redress, restitution, compensation, rehabilitation and tribute.

With a more forward-oriented focus, distributive or socio-economic justice has been identified as important for building a future that goes beyond protecting civil and political rights and also addresses cultural, social and economic rights (Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and MiethLambourne, 2014a; Reference ManiMani, 2002). This is consistent with building a ‘positive peace’ that addresses the root causes of conflict and promotes a more politically and socio-economically just future, rather than simply a ‘negative peace’ that seeks to end the direct violence of war and mass atrocities (Reference GaltungGaltung, 1969). Guatemala has been cited as an example where this approach was prioritised and where the pursuit of accountability for the crimes of former leaders existed alongside institutional and socio-economic provisions aimed at addressing the underlying causes of the conflict (Reference ManiMani, 2002: 165).

The term ‘historical justice’ is used to encompass situations where the focus is not on transition per se, but rather on seeking redress for historical wrongs that are transmitted across generations through collective memory and memory practices. Examples include abuses committed in the context of colonisation and human rights violations against Indigenous peoples (Reference Neumann and ThompsonNeumann and Thompson, 2015). Reference TeitelTeitel (2000) uses historical justice as a term to frame the need for truth – a need that is often the primary driver for the creation of different types of historical commissions or truth commissions as defined and examined in theory and practice by Reference HaynerHayner (2011). The pursuit of the truth in the form of an account of historical wrongdoings is frequently combined with a restorative or reconciliatory focus in the form of a TRC as a particular form of truth commission (Reference HaynerHayner, 2011: 12). The aforementioned TRCs in South Africa and Canada are two such examples that focused on revealing the truth and promoting reconciliation for past wrongs. Additionally, the concept of historical justice goes beyond the idea of individual criminal justice to recognise the need for collective forms of accountability to match the collective nature of the crimes committed (Reference TeitelTeitel, 2000: 75). This may take the form of political justice or rectificatory or corrective justice (Reference Butt, Neumann and ThompsonButt, 2015: 171).

Transitional Justice and Peacebuilding

Notwithstanding the range of approaches to justice outlined above, transitional justice in practice has often been limited to a legal retributive approach, especially where practitioners follow the model of transitional justice promulgated by the UN (2004, 2010). Transitional justice, as part of a post-conflict peacebuilding agenda, has been pursued by the UN based on a ‘one-size-fits-all’ model of liberal democratic reforms and mechanisms designed to support individual accountability and the rule of law. The perception of a duty to prosecute in international law, as espoused by Reference OrentlicherOrentlicher (1997, Reference Orentlicher2007), has manifested in a commitment to international criminal justice as the primary means of implementing transitional justice – what Reference DrumblDrumbl (2002: 8) has described as the ‘hegemonic imperative to implement criminal trials’ and Reference SikkinkSikkink (2011) later characterised as the ‘justice cascade’.

Under international criminal law, criminal responsibility is assigned to individuals for particularly serious violations of human rights defined in international law as war crimes, crimes against humanity and genocide (sometimes grouped together as mass atrocity crimes). These international mass atrocity crimes can be prosecuted in international, hybrid (a mixture of international and national laws) or regional courts, or in national courts where states have enacted domestic legislation to criminalise such violations of human rights and the laws of war. They can also be prosecuted under the provisions of universal jurisdiction.

Following the precedent of the post-World War II trials at Nuremberg and in Tokyo, the two ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, respectively, were created by the UN Security Council in the early 1990s, when the freedoms of the end of the Cold War enabled agreement to be reached on such measures intended to restore international peace and security. International prosecutions have been pursued as part of transitional justice in order to provide accountability for past atrocities, build peace and prevent future atrocities through combating impunity and promoting justice, reconciliation and the rule of law, at least in theory, if not in practice (UN, 2004).

The ‘duty to prosecute’ was derived from the ‘right to justice’, which former French jurist and human rights defender Louis Joinet determined was one of four ‘Principles against Impunity’ in his famous report to the UN Human Rights Commission (UN, 1997). These four principles – namely, the right to know, the right to justice, the right to reparation and guarantees of non-recurrence – were translated into the UN’s four key pillars of transitional justice: prosecution initiatives, truth-seeking processes, reparation programmes and institutional reform (UN, 2010). In this politico-legal context, justice is assumed to mean legal justice in the form of prosecutions and punishment (i.e., retributive justice), which is intended to deter future war criminals and thus contribute to the fourth aforementioned principle of guarantees of non-recurrence. From this perspective, the future orientation of transitional justice is thus limited to rebuilding the rule of law and implementing institutional reform as a further means of ensuring non-repetition of past human rights violations.

However, while the ‘right to justice’ has been seen as paramount by the UN and other international actors, including the International Center for Transitional Justice (ICTJ), the ‘right to know’ through truth-seeking processes has also risen to prominence in the form of the truth commission (Reference HaynerHayner, 2011). The truth commission, like the criminal court or tribunal, is a mechanism representing a programmatic approach to transitional justice adopted by countries in order to deal with a history of past mass human rights violations, with or without the involvement of the international community. Originally associated with amnesties and the perpetuation of a culture of impunity, the early truth commissions of the 1990s were seen as representing a political compromise of revealing the truth in exchange for justice where ‘political resistance to accountability was high’ (Reference HaynerHayner, 2011: 91). A clear example of this is the case of El Salvador, where a blanket amnesty was passed into law following the release of the country’s truth commission report in 1993 (Reference HaynerHayner, 2011: 102). In other cases, de facto blanket amnesties would result when no formal transitional justice was pursued, such as in post-civil war Angola and Mozambique (Reference Olsen, Payne and ReiterOlsen et al., 2010: 40).

The South African TRC, with its innovative approach of providing individual conditional amnesty rather than blanket amnesty (Reference HaynerHayner, 2011: 29), challenged this perception of compromise between justice and truth. Its emphasis on restorative justice as an alternative form of justice took a more forward-looking approach, aimed at rebuilding a new ‘rainbow nation’ by transforming the relationship between black and white South Africans through healing, forgiveness and reconciliation (Reference TutuTutu, 1999: 51–52). The South African TRC also expanded notions of truth beyond victims’ right to know the factual and forensic truth of what happened, to their own narrative truths and personal stories of what happened to them. By providing a public space for the expression of these personal/narrative truths, the South African TRC was seen as facilitating the creation of a shared social or dialogical truth that contributed to an experience of restorative or healing truth, thus expanding the ‘right to know’ from a historical concept to a future-oriented process of healing and reconciliation (Reference Boraine, Boraine and ValentineBoraine, 2006).

As outlined by Reference HaynerHayner (2011), most truth commissions subsequently have called for prosecutions in their final report, and the use of amnesties has become less common, even though the political constraints on pursuing accountability have remained in such countries as Burundi and Sri Lanka, where truth commissions have been established but a culture of impunity prevails. In other cases, truth commissions have not precluded the pursuit of criminal prosecutions, as in post-civil war Sierra Leone (Reference Ainley, Friedman and MahonyAinley et al., 2015).

The ‘right to reparation’ has similarly undergone an evolution in transitional justice, from the original focus on seeking material compensation and payments to individuals through reparation programmes to a more pragmatic emphasis on the concept of moral or collective reparations, as illustrated by the example of the ECCC mentioned earlier. Reference Laplante, Buckley Zistel, Koloma Beck, Braun and MiethLaplante (2014) offers a justice continuum model of reparations, which starts at the narrowest end with reparative justice linked to the classical tradition of corrective justice through civil remedies or material compensation for specific harms or losses, as pursued in a number of cases including Chile and Morocco. Next in the continuum is restorative justice, involving the participation of victims as stakeholders and a focus on restoring their dignity and local ownership in the reparations process, as seen in many traditional customary practices, such as the nahe biti process incorporated into the East Timorese Commission for Reception, Truth and Reconciliation (CAVR) (Reference Babo-SoaresBabo-Soares, 2004). This is followed by what Reference Laplante, Buckley Zistel, Koloma Beck, Braun and MiethLaplante (2014: 74) identifies as a civic justice approach, which moves beyond the micro-level reconciliation inherent in the restorative justice approach to a focus on the macro-level relationship ‘between the government and the governed’ and the potential for political transformation, as seen in the Peruvian reparations programme. Finally, at the broadest end of the spectrum, socio-economic justice, according to Reference Laplante, Buckley Zistel, Koloma Beck, Braun and MiethLaplante (2014: 77), provides the opportunity for reparations to ‘remedy historical social and economic inequalities’ and contribute to distributive justice that links directly to the goals of sustainable peacebuilding and transformative justice (Reference LambourneLambourne, 2009, Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and Mieth2014a), as discussed later in this chapter.

Despite developments in transitional justice focusing on broader understandings of truth, justice and reparations that are more consistent with building peace and reconciliation, they have remained secondary to the overriding imperative to pursue retributive justice and factual/forensic truth through criminal prosecutions as a means of fulfilling the ‘right to justice’ principle. There are, however, signs that this could be changing if transitional justice follows the same path as peacebuilding in its turn away from liberal democratic programmatic responses towards a more pragmatic approach associated with building local resilience to future crises (Reference ChandlerChandler, 2017; Reference de Coningde Coning, 2016; Reference Juncos and JosephJuncos and Joseph, 2020). As explained by Reference de Coningde Coning (2016: 167), this new focus on pragmatic peacebuilding:

This so-called pragmatic turn in peacebuilding can be related to the ‘transformative turn’ in transitional justice, in which scholars have proposed alternative approaches to justice that go beyond those promulgated by the UN’s model of transitional justice with its emphasis on programmatic responses to support the four key pillars – prosecutions, truth, reparations and institutional reform. Accordingly, before moving to a discussion about the implications of different types of resilience thinking for transitional justice, the next section will first examine how notions of transformative justice have evolved to challenge the dominant politico-legal, prosecutorial approach to transitional justice.

The Transformative Turn in Transitional Justice

Reference DalyDaly (2002) first proposed the idea of transformative justice as a means of recognising the transformative agenda inherent in transitional justice and supporting the social transformation necessary to meet the goals of reconciliation and deterrence. According to her:

As part of this transformative agenda, Reference DalyDaly (2002) proposed the need to consider other forms of response extending beyond retributive justice for individual harms to address different types of injustices – including collective economic or political injustices, as in South Africa. Reference LambourneLambourne (2009, Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and Mieth2014a) built on this idea of a transformative agenda to incorporate different types of justice in her model of transformative justice: legal (including both retributive and restorative) justice; socio-economic justice; political justice; and psychosocial justice and healing derived from truth, comprising both knowledge of what happened and acknowledgement that what happened was wrong.

Similar to Reference DalyDaly (2002: 92), Reference LambourneLambourne’s model (2009, Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and Mieth2014a) was predicated on the need for a transformation that goes beyond the narrow confines of a transitional moment to a more pervasive transformation of society that would respond to the priorities of a particular cultural and conflict context, consistent with Reference UngarUngar’s (2008) emphasis on the critical role of cultural context in determining levels of resilience in at-risk populations. More specifically, Lambourne’s model of transformative justice underlined that justice must be seen as more than transitional. It must set up structures, institutions and relationships to promote transformation and sustainability (Reference LambourneLambourne, 2009, Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and Mieth2014a).

Both Reference DalyDaly’s (2002) and Reference LambourneLambourne’s (2009) work also emphasises reconciliation as a process and outcome. For Reference LambourneLambourne (2009), this means paying attention to relational or psychosocial as well as structural transformation, consistent with Reference LederachLederach’s (1995, Reference Lederach1997) theories of conflict transformation and peacebuilding. In considering how justice can contribute to building inclusive political communities after war and other mass violence, Reference ManiMani (2002: 15) identifies peacebuilding as a dynamic, social and associative process ‘that rebuilds fractured relationships between people’. However, in the face of ongoing controversy about the definition of reconciliation and its relevance to macro-level peacebuilding and transitional justice, reconciliation as a concept has been marginalised in the UN model and in subsequent transitional justice practice (Reference LambourneLambourne, 2014b; UN, 2010). Despite being mentioned as a goal in the UN Secretary-General’s 2004 report to the UN Security Council on the rule of law and transitional justice (UN, 2004), it is notably absent from the four key pillars subsequently outlined by the UN (2010). However, in reflecting on the pragmatic turn in peacebuilding towards a focus on sustaining peace, the UN (2015) mentions the role of reconciliation in local communities and maintains that ‘efforts to sustain peace must build upon [local] institutions and the resilience and reconciliation processes of local communities, and not undermine them’. This perspective on sustaining peace in practice is thus consistent with the transformative turn in transitional justice advocated by both Reference DalyDaly (2002: 92) and Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and MiethLambourne (2014a).

Reference Gready and RobinsGready and Robins (2014) and Reference EvansEvans (2016) have proposed a narrower conception of transformative justice, based on a human rights perspective that argues for a greater emphasis on socio-economic rights in addition to civil and political rights, but without considering the potential for relational or psychosocial transformation proposed by Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and MiethLambourne (2014a), and without placing the same accent on reconciliation as both Reference DalyDaly (2002) and Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and MiethLambourne (2014a). Gready and Reference Robins, Gready and RobinsRobins (2019: 33) situate their proposal for a transformative approach to transitional justice within a critique of the foundational limitations of transitional justice, linking it to liberal and neo-liberal conceptions of human rights. They cite two strands of globalisation underpinning this critique: the privileging of ‘liberal paradigms of civil and political rights through an emphasis on elections, procedural democracy, constitutionalism and the rule of law, and various backward-looking truth and justice measures’ along with ‘market-driven, neoliberal economics’ (Gready and Reference Robins, Gready and RobinsRobins, 2019: 33).

Reference McAuliffeMcAuliffe (2017) underscores the potential of transformative justice for redressing the marginalisation of socio-economic issues as root causes of conflict (see also Reference EvansEvans, 2016). He explicitly links transformative justice to the local turn in peacebuilding and transitional justice, which he describes as promising in ‘accordance with social needs, sustainability and transformation of social structures’ (Reference McAuliffeMcAuliffe, 2017: 233). Reference McAuliffeMcAuliffe (2017: 246) cites examples of micro-level programmes developed independently of the state, such as Fambul Tok in Sierra Leone where a local and an international non-governmental organisation (NGO) collaborated to provide opportunities for village-level community healing and reconciliation following the civil war (Reference MartinMartin, 2020). Fambul Tok was later adapted to support local capacity-building in response to the failures of state institutions in responding to the Ebola crisis, focusing specifically on the importance of empowering local communities to self-organise as a means of sustaining peace (Reference de Coningde Coning, 2016: 173). The example of Fambul Tok illustrates the potential for a transformative justice framework to address structural violence, thereby contributing to the building of community resilience – defined by Reference SaulSaul (2014: 8) as ‘a community’s capacity, hope and faith to withstand major trauma and loss, overcome adversity, and to prevail, usually with increased resources, competence and connectedness’.

Transformative justice theories thus criticise the emphasis on top-down, elite-driven policies and programmes implemented as part of transitional justice and focus more on the needs and priorities of the local affected communities (Reference EvansEvans, 2019). According to Reference Gready and RobinsGready and Robins (2014: 340), ‘transformative justice entails a shift in focus from the legal to the social and political, and from the state and institutions to communities and everyday concerns’. Accordingly, and consistent with resilience thinking, ‘transformative justice is not the result of a top-down imposition of external legal frameworks or institutional templates, but of a more bottom-up understanding and analysis of the lives and needs of populations’ (Reference Gready and RobinsGready and Robins, 2014: 340).

Reference LambourneLambourne (2009, Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and Mieth2014a) developed her model of transformative justice inductivelyFootnote ¹ by studying and listening to the voices of survivors of mass violence and atrocities who identified the types of justice that were important to them, and by observing micro-level peacebuilding and community practices that focus on healing and reconciliation (Reference Lambourne, Niyonzima and Gobodo-MadikizelaLambourne and Niyonzima, 2016). The lived realities of affected communities suggest that transitional justice at the formal, elite level of tribunals and truth commissions is insufficient to meet their justice needs and interests (Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and MiethLambourne, 2014a, Reference Lambourne2014c). Local communities recognise the need to live together after mass violence and human rights violations and to focus therefore on pursuing programmes that build their socio-economic and psychosocial capacities. From a grassroots perspective, peace and reconciliation are no longer abstract concepts to be debated but essential means of survival, achieved through types of justice that build local resilience and do more to unite than to divide.

The local turn in transitional justice described here mirrors that in peacebuilding, with its focus on local participation and empowerment (Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and MiethLambourne, 2014a; Reference Robins, Gready and RobinsRobins, 2019). As such, it also invites the same criticisms regarding the lack of interrogation of the local – what it means and how it manifests in numerous guises which may or may not support a progressive agenda of equity, inclusiveness and participation at that local/community level. Reference McAuliffeMcAuliffe (2017: 283), for example, elaborates on the limits to the transformative potential of localised or bottom-up approaches to transitional justice and peacebuilding; ‘peaceful individuals or peaceful communities do not automatically make peaceful societies or states’. According to him, the transformative process advocated by theorists such as Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and MiethLambourne (2014a) and Reference EvansEvans (2016) does not in practice result in transformative outcomes because it ignores the realities of elite power over domestic politics. He argues that the inclusion of affected communities cannot in itself influence the policies and practices of elites and thus cannot transform socio-economic structures without a focus on what he calls the ‘missing middle’ and a process of vertical integration linking the local community with the state (Reference McAuliffeMcAuliffe, 2017: 280).

Reference Robins, Gready and RobinsRobins (2019: 304) addresses this critique by suggesting that ‘transformative participation demands an engagement of communities with institutions of the state and with national and international NGOs, that transforms the relationship from which it emerges’. This is another way of articulating the concept of relational transformation as advocated by Reference Lambourne, Buckley Zistel, Koloma Beck, Braun and MiethLambourne (2014a) in her model of transformative justice – a process that transforms power relationships (see also Reference Lambourne and Rodriguez CarreonLambourne and Rodriguez Carreon, 2016: 90). While Reference WaldorfWaldorf (2012) has criticised transformative justice as being too all-encompassing and ambitious, Reference Robins, Gready and RobinsRobins (2019) proposes a more transformative understanding of justice as emerging from social practice, rather than framed against an ideal of justice. ‘This approach’, he argues, ‘perceives ideas of justice not as something circumscribed by legal instruments and a technocratic expert practice, but as emerging directly from action or struggle, created collectively and democratically in claimed spaces’ (Reference Robins, Gready and RobinsRobins, 2019: 302). Reference AbeAbe (2018) goes further, highlighting a more anarchical process at the local level that sees social recovery emerging from ‘meaning-making’ in accidental and ad hoc ways. The idea of ‘planning for the unplanned’ (Reference AbeAbe, 2018: 206) might sound paradoxical, yet is entirely consistent with resilience thinking and the notion of adapting to complexity and uncertainty (Reference de Coningde Coning, 2018). Reference Hoddy and GreadyHoddy and Gready (2020: 3), meanwhile, situate transformative justice within a framework of critical social theory, systems thinking and complexity theory, claiming that:

Historical or intergenerational injustices also speak to the benefits of adding a transformative lens to ideas of transitional justice. Applying this lens to the legacies of colonialism and violations of Indigenous rights, for example, amplifies the intergenerational impacts of trauma and discrimination that affect the psychosocial well-being and socio-economic chances of subsequent generations. Reference Maddison and ShepherdMaddison and Shepherd (2014) thus argue for an extension of the concept of transition, to enable proper accounting for colonial violence. In this way, they propose a post-colonial re-visioning of transitional justice that offers possibilities for deep social transformation at both the national and international levels.

The emergence of a transformative agenda for transitional justice has therefore turned a spotlight on local capacity building and systemic societal transformation, linked to the application of resilience thinking to transitional justice and peacebuilding. The psychosocial and relational aspects of transformative justice also speak to the potential contribution of a resilience-building approach to complement the more programmatic, institution-based agenda in transitional justice, albeit subject to potential critique if they focus only on supporting communities to adapt to crises – rather than taking steps to remove the sources and prevent such crises from recurring.

Resilience Thinking, Transitional Justice and Transformation

The emergence of resilience thinking reflects the shift from a programmatic liberal peacebuilding model to a more pragmatic or adaptive means of rebuilding the capacity of societies to respond to complexity and uncertainty (Reference de Coningde Coning, 2018). In the field of transitional justice, scholars have just begun to grapple with the relevance and risks associated with different conceptualisations of resilience (Reference KastnerKastner, 2020; Reference Wiebelhaus-Brahm, Duthie and SeilsWiebelhaus-Brahm, 2017). While resilience thinking may seem consistent with the transformative turn in transitional justice, it too has been criticised as prioritising localised bottom-up approaches that cannot succeed in the face of elite intransigence and continuing politico-legal and socio-economic structures of discrimination and oppression (Reference ChandlerChandler, 2020).

Yet, at the same time, localised transformative processes can help build individual and community resilience to better deal with surrounding threats from elite actors and state-level institutions, which, through active oppression or neglect, undermine the well-being of local communities. In this sense, emerging understandings of resilience as a negotiated process which is sensitive to contextualised challenges have become increasingly relevant to adaptive peacebuilding efforts which are synonymous with new ways of doing transitional justice. As Reference ChandlerKastner argues (2020: 383), a resilience approach to transitional justice ‘shifts the focus from short-term objectives, such as obtaining a certain number of convictions before a criminal tribunal, to gradually (re)building relationships and social capital’, consistent with models of transformative justice discussed in the previous section. As the chapters in this volume show, these efforts can begin at the level of individuals and communities who resist oppressive definitions of their experiences of injustice (see, for example, Nayanika Mookherjee’s discussion of Bangladesh’s birangonas or ‘war heroines’, Chapter 6), or they can be led by governments aiming to restore social and political stability.

At its simplest level, resilience is about the ability of systems – whether social, economic, political or environmental systems – to recover from crises (Reference UngarUngar, 2021). Reference Juncos and JosephJuncos and Joseph (2020: 294) cite the systemic approach of resilience thinking as an advantage over standard liberal peacebuilding as it ‘goes beyond the project-driven and silo approaches of the past towards the transformation of entire systems or regimes’. As Ungar’s explanation of a social-ecological definition of resilience in Chapter 1 shows, applying resilience thinking to the peacebuilding and transitional justice context raises the possibility that addressing the sources of resilience at multiple systemic levels is critical to both individual and societal recovery and transformation post-conflict.

There is a danger, however, with using resilience as a principle for societal reconstruction and justice. Just as the transformative turn in transitional justice has caused some to focus too much on local capacities to manage threats and adapt to complexity and change, a decontextualised, highly psychologised conception of personal resilience ignores power relations and fails to engage with the root causes of vulnerability (Reference KastnerKastner, 2020: 373). Adaptation, for example, can be seen as implying transformation at the micro level of individuals and local communities and a lack of focus on challenging the political and economic structures that contributed to the root causes of the violence, which is already something that is insufficiently addressed in transitional justice. Like transitional justice, resilience is better understood as a systemic process that implicates both individuals and the social and institutional structures that either oppress or liberate.

Reference Ungar and TheronUngar and Theron’s (2020) ecological and multi-systemic model of resilience, referred to in the previous chapter, suggests new ways of thinking about transitional justice and its contribution to building democratic and peaceful futures – both incorporating yet also going beyond the turn to the local in peacebuilding and transitional justice. Transitional justice, although concerned with the past, must also focus on the future; while dealing with divisions from the past, it must build cooperative relationships for the future; while dealing with past crimes and root causes of violent conflict, it must heal wounds, redress harms, transform power relations and build new socio-economic and politico-legal structures that focus on attaining and protecting human rights in the future.

Therefore, the idea of resilience in relation to transitional justice is intimately connected with the liminal space of a transition towards peace and democracy. Resilience can be built through a willingness to take responsibility for the past, at the same time as reconciling with those who have committed atrocities. It involves embracing a future peaceful relationship between those defined as perpetrators and those defined as victims or survivors and committing to working together to build and maintain not only individual well-being, but also the social, political, legal, economic and environmental structures to support a sustainable peace with justice. This requires a reckoning with the past based on accountability and taking responsibility, combined with the willingness and strength – both individual and collective – to face, if not embrace, the possibility of a different future. In this sense, resilience, like peacebuilding and transitional justice, must attend to the transformation of multiple systems at once.

While this may be an argument in favour of integrating resilience thinking with approaches to transitional justice, Reference KastnerKastner (2020) offers a cautionary note. Resilience thinking can be in conflict with the transitional justice approach of dealing with the past in order to build a peaceful future. As he sees it, resilience is about breaking from the past, while transitional justice is explicitly concerned with such processes as establishing accountability, memorialising, repairing the damages and telling the truth about past experiences of human rights atrocities (Reference KastnerKastner, 2020: 369). Reference KastnerKastner (2020: 374) goes further, arguing that the traditional goals of transitional justice – ‘revealing the truth, holding perpetrators accountable and trying to provide some sense of justice for the victims’ – are ‘made redundant in a resilience paradigm’ that focuses only on the future rather than on addressing the past in order to build a better future. Furthermore, Reference KastnerKastner (2020: 374) maintains that ‘resilient individuals and communities may never be able to address systemic factors or the responsibilities of external actors, which will largely remain beyond their scope of influence and “agential capacities”’.

Reference Wiebelhaus-Brahm, Duthie and SeilsWiebelhaus-Brahm (2017: 159), meanwhile, retains a more optimistic perspective and concludes by arguing for a long-term commitment to the promotion of resilience and transitional justice as ‘gradual, complex transformations’ that are context-sensitive and understand existing capacities in order to respond with ‘policy interventions that will address local needs’. By envisaging a long-term transformation, he is also tapping into the potential of a transformative justice approach that strives for structural transformation over and above individual and community resilience.

This potential is reflected in considerations of the relationship between resilience and peacebuilding. Reference PoulignyPouligny (2014) proposes that we think of resilience as providing protective factors to counter-balance risk factors, as part of a dynamic process of experiencing and responding to violence at multiple systemic levels. As Reference PoulignyPouligny (2014: 2) argues, ‘violence transforms as much as it destroys. It creates new realities and forms of relationships’. Peacebuilding, seen as an intervention to support further transformation, thus plays a powerful role in the trajectory of post-violence relationships, as much as it does in transforming structures and institutions.

This broader societal resilience can be developed through giving attention to interventions that support the building of social cohesion and social capital, defined by Bourdieu as ‘the aggregate of the actual or potential resources that are linked to the possession of a sustainable network of relationships’ (cited in Reference SaulSaul, 2014: 10). The different dimensions of social capital are directly linked to protective factors that contribute to sustaining individual agency and empowerment in a context of strong and supportive inter-linkages horizontally within (bonding social capital) and between communities (bridging social capital), and vertically between individuals, communities and the state (linking social capital) (Reference Bartolomei, Pittaway and WardBartolomei et al., 2013; Reference PutnamPutnam, 2000). Relationships and social networks thus create the potential for social mobilisation, which, in turn, creates the possibility for social change, thus illustrating how individual and community resilience can contribute to building societal and state resilience.

Resilience is therefore more than a passive protective factor that enables individuals and communities to recover from stressful events such as mass violence. It also suggests an essential agentic quality that enables individuals and communities – and organisations – to adapt and evolve as necessary to maintain functionality beyond mere survival and to effect social change. This approach is reflected in Reference PoulignyPouligny’s (2014: 1) definition of societal resilience: ‘the capacity of a group, community, or society at large to cope with stresses and disturbances as a result of social, political, and environmental change and adjust while still retaining essentially the same functions and feedbacks by the people’. She places emphasis on the resilience of a system based on its functions and capacities to perform, not on its stability.

According to Reference KastnerKastner (2020: 372), when resilience thinking is used in a more progressive way, it ‘carries connotations of flexibility and reflexivity, capacity, agency and empowerment’; and, furthermore, it suggests that ‘crises may even represent opportunities to implement innovative change’. At the same time, he points out that resilience thinking that focuses on ‘flexibility, diversity and adaptive governance appears diametrically opposed to the currently dominant transitional justice paradigm’ (Reference KastnerKastner, 2020: 382). Rather, it supports the local, participatory turn in transitional justice Reference McEvoy and McGregor(McEvoy and McGregor, 2008; Reference Shaw and WaldorfShaw and Waldorf, 2010) that eschews a one-size-fits-all approach to imposing models of transitional justice and ‘should be concerned with local understandings of justice and the transformative capacity of the individuals and communities primarily concerned’ with a focus on ‘facilitating, rather than producing, justice’ (Reference KastnerKastner, 2020: 373). As Ungar explains in Chapter 1, resilience can describe a process of transformation that goes beyond recovery and adaptation, given that short-term survival strategies may be maladaptive and adaptation may not be consistent with long-term sustainability.

Civil society peacebuilding organisations have been leading the move towards a networked and transformative approach to resilience that is more applicable in the peacebuilding (and transitional justice) context and should serve to alleviate the risks associated with more traditional resilience thinking. The Geneva Peacebuilding Platform, for example, has focused on the network-driven, informal nature of peacebuilding, rather than the traditional system-based understanding of resilience inherited from other disciplines. The Platform suggests that ‘the qualities that make up resilience … involve dense patterns of trust networks, hybrid coalitions forged across a wide range of actors, shared narratives, common interests, multiple lines of communication, good leadership, and a commitment by local leaders to take risks for peace’ (Geneva Peacebuilding Platform, 2013: 6). This is similar to a multi-systemic approach to resilience (Reference Ungar and TheronUngar and Theron, 2020).

The following section explores briefly the potential and limitations of different transitional justice mechanisms to build resilience. In so doing, it will take into account a number of key factors, as suggested by Reference PoulignyPouligny’s (2014: 3) proposed components of a resilient societal system: namely, psychosocial recovery, shared systems of meaning, solidarity among community members, community reintegration and trust, and broad and inclusive forms of governance.

Transitional Justice Mechanisms and Resilience

Conclusion

This chapter has raised questions about the adequacy of the politico-legal transitional justice framework for promoting resilience in societies recovering from mass atrocities and human rights violations. The strong focus of transitional justice on criminal legal accountability for perpetrators of mass human rights violations and on rebuilding the rule of law to support a democratic political transition reflects the technical, programmatic approach to peacebuilding criticised by scholars such as Reference de Coningde Coning (2018). Such an approach is insufficient on its own to promote resilience and adaptive peacebuilding. This chapter argues that socio-economic and psychosocial transformation are critical components of a transformative and networked resilience approach to transitional justice that addresses root causes, responds to the past trauma of mass atrocities and ongoing trauma of relative and absolute poverty and deprivation, and (re)builds relationships in communities and throughout the political system.

The chapter has explored some of the potential opportunities and risks associated with resilience thinking in relation to transitional justice and its connection with adaptive peacebuilding. It has also sought to demonstrate that building resilience is more a function of how transitional justice is approached than the content of any transitional justice programme. In other words, process is more important than the type of mechanism employed. A transformative approach to transitional justice incorporates this emphasis on process, consistent with scholarship that has argued for the importance of participation, agency and empowerment at the local level.

Questions remain, however, about how best to facilitate local participation in transitional justice and peacebuilding processes in the context of new resilience thinking. For example, what happens when facilitation of endogenous, locally driven approaches to building peace and justice is prioritised over local participation in elite-driven, state-based mechanisms, such as criminal trials and truth commissions? Can ideas of local community and individual resilience transcend traditional resilience thinking, in order to develop into a networked and transformative approach to peacebuilding and transitional justice that seeks to do more than ‘bounce back’ from crises and instead attempts to influence structural politico-legal and socio-economic transformation? Finally, how does this connect in practice with Reference de Coningde Coning’s (2018: 305) concept of adaptive peacebuilding as an iterative, relational and transformative process ‘informed by concepts of complexity, resilience and local ownership’?