INTRODUCTION

This contribution to a book about restoration in the aftermath of political violence is a snapshot of a particular moment in the quest for truth, justice, and reparation for victims in the context of the Colombian armed conflict. It aims to explore the promises and shortcomings of restorative justice from a feminist legal standpoint through the examination of the introduction of the gender perspective in the land restitution scheme that the Colombian state put in place in 2011. In this sense, it explores the intersection between law, as a means to achieve accountability, land tenure, as the embodiment of the most salient form of property, and women, as a category minted to redress discrimination and violence against a particular group. It is based on research that the author undertook for a doctoral degree in law and speaks to a longstanding interest in the interplay between gender, armed conflict, and property. It relies on a readingand examination of more than one hundred land restitution cases that were brought in the two years (2012 – 2014) that followed the establishment of the land restitution process in the country. This material can be considered pivotal, since it sheds light on the difficult encounter between private and public law in transitional justice that occurs in the process of offering redress to victims related to the armed conflict.

The strategy of this chapter is to illustrate this challenging interaction between these two areas of law and their different rationales and logics, and in so doing bring to the fore the legal mandate that introduced a gender dimension in the adjudication of Colombian land restitution claims. It asks whether that dimension has been operative in the concrete resolution of the cases that land restitution judges and tribunals have had to decide. Answering this question is essential for determining whether the lines of legal action that have been implemented by a society entrenched in conflict to achieve certain distributive justice goals and to acknowledge the particular predicament of certain groups like women are germane, pertinent, and effective.

Beginning in the late 1990s, the three most influential Colombian women's rights NGOs, Casa de la Mujer, Corporación Sisma Mujer, and Corporación Humanas, have been producing knowledge about women in the context of the Colombian armed conflict.

INTRODUCTION

This chapter examines the degree to which the absence of “restorative justice” between Armenians and Turks has become a factor in international relations, especially since the late 1970s and early 1980s. It is argued that for more than three decades (1980s–2010s) Israel has chosen to reinforce the Turkish account of the events of 1915 for its own diplomatic ends. After a long period of silence, during the late 1970s the differing Armenian and Turkish interpretations of the 1915 genocide became increasingly, and somewhat violently, entrenched. This chapter explores the particular role that Israel played with respect to the “diplomacy of closure” between Armenians and Turks, and argues that for more than three decades (1980s–2010s) Israel consciously has chosen to reinforce the Turkish narrative for its own selfish diplomatic and political ends. The Israeli parliament's failure to recognise the Armenian genocide has made it easier for successive Israeli governments to reinforce the Turkish account of the events of the 1915 genocide, making Israel's economic, military and arms deals with Turkey and, in recent years, with Azerbaijan, much smoother. In these respects, the chapter explores the paradox of Israel, a country born in large part out of a post-World War II sense of restorative justice for the Holocaust and the commemoration of its own genocide as “unique” colluding in the denial of recognition of the Armenian genocide. As this chapter will show – especially during the 1980s but also throughout the 1990s and 2000s – Israel took advantage of the consequences of a lack of conventional restorative justice for the Armenian genocide, such as Armenian terrorism and pressure on Turkey in international forums, as diplomatic leverage to restore Israeli – Turkish relations.

CONCEPTUAL FRAMEWORK AND METHODOLOGY

The Nuremberg trials of prominent Nazis after the end of World War II and the growing awareness of international human rights have boosted the emergence of what we now identify as the field of Transitional Justice (TJ), an umbrella term covering measures undertaken by societies that seek to transition to the rule of law after episodes of mass violence. This chapter examines the question of those TJ mechanisms that have been labelled as “restorative justice” in the context of Israeli – Turkish and Israeli – Azerbaijani relations.

INTRODUCTION

This chapter explores how a politics of memory can be affected by the resentment of former victims. Drawing on Paul Ricoeur, first a model is sketched explaining how historical memory and political reconciliation can be conceived. Then, such a model is confronted with the moral plea for resentment by Jean Améry. It is suggested that the political elaboration of traumatic collective experiences from the past is unable to comprehend the subjectivity of resentment and the lost trust in the world that it implies. Any account of the political structure of memory must cope with the particular emotions of the individuals, and especially with resentment, which, as Améry argues, remains as the last connection between accomplished memory and the reality of the past. This incompatibility of political memory and resentment shows the limits of reconciliation and forgiveness, but also the condition for their possibility. Finally, the chapter discusses whether the public manifestation of resentment can have any real, even positive, effect on the actual process of political memory.

TIME AND THE DUTY OF MEMORY

Why ought we to remember? Why should the imperative of memory be the new categorical imperative, as Theodor Adorno once put it? (Adorno 1970, 358) Many persons would promptly answer that the moral reason to remember the atrocities of the past is for them not to happen again. This seems a most natural response, as it is connected with the ancient topos of historia magistra vitae : the idea of learning from history in order to avoid past mistakes and crimes in the future. To be sure, there is nothing wrong in preventing past misdeeds from being repeated, but there is something utilitarian in this argument, which makes it lose its moral force. If we feel that we are obliged to remember for the sake of our children and grandchildren, then the victims of past atrocities become mere instruments for shaping a better, more just future, and one might wonder whether they really get any moral retribution from it at all. From a moral point of view, it is to them that we owe retribution, whether they are dead or still alive and suffering, and not to future beings. Surely, we are responsible for the kind of society we leave to coming generations, but the victims of the past cannot be a mere means to that end.

ANECDOTE

The elder peasant listens carefully to my explanation. I am talking about the Victims and Land Restitution Law. This law, I am saying, has created, among other things, a new legal action and process designed to guarantee the land restitution right of internally displaced persons (IDPs) who are victims of land seizures and forced abandonment in the context of the Colombian armed conflict. I am trying to expose the characteristics, benefits, and innovations of this transitional justice mechanism. These features, alongside their comparison with ordinary legal actions and processes, seem not to persuade the elder peasant and he is skeptical of my reasoning. I try to convince him by describing how this new law will benefit him by incorporating international human rights standards regarding the rights of victims of gross human rights violations and international humanitarian law breaches. I remark, using the rhetoric of transitional justice, how his right to truth, justice, and reparation with guarantees of non-recurrence can be satisfied by this new process. Nevertheless, he is not persuaded at all, and after taking a breath, he raises his hand and interrupts me by saying: “Here in Colombia one law replaces another law, and then another new law replaces that law; our reality is made out of laws and laws, but in the end there is no law at all.”

INTRODUCTION

The rustic wisdom of the peasant points to one of the main dilemmas of transitional justice adjudication. His words contain two claims. On the one hand, he implies that the process by which a new law is created to replace another law is indicative of a context of “no law”, a context in which the Rule of Law can be undermined by the instability of the legal framework and by uncertainty regarding the applicable law, or what to do when old and new laws collide. On the other hand, his skepticism refers to the incapability of law exercised by the judiciary to actually produce desirable consequences in his reality. He has been disappointed by the law several times: it failed him when his rights were violated and his land seized; and it failed him when his claims were dismissed and his rights remained unprotected.

INTRODUCTION

This chapter explores the differences and intertwining of three structures and processes in which harm experiences are worked through and achieve resolution or closure, namely: forgiveness, civic reconciliation and justice in its different forms and institutional guises. As was advanced in this volume's Introduction, such resolution or closure can be understood as the achievement and restoration of trust. More specifically, by resolution and closure the text refers to three articulated demands and commitments that are present in the working through of such experiences: first, the demand that the infliction of harm be stopped; second, the demand for, and possibility of, a new beginning in a broken personal life or in a shattered social community; and third, the normative undertaking of repairing that harm and committing to it never being repeated or reiterated in the future. These three normative demands, and especially the third, underlie and intertwine in the revision of the TARR-model that this volume is developing. We normally convey the goal of ending harm in the imperative form of “Never again!”, which has frequently gone hand in hand with historical experiences of harm. It was thus phrased, for example, in Adorno's formulation of the new categorical imperative that Auschwitz should not happen again or, in the ever-expanding wake of the Holocaust, in Sábato's presentation of the CONADEPT report of human rights violations in Argentina under the military Junta. This chapter will outline the problematic role of forgiveness, as well as parallel, but distinct roles of civic reconciliation and justice in these processes of the closure of harm. Methodologically, these three different forms of closure can be mapped as being at the crossroads of the relations and ties that the three decisive figures of the drama of harm hold: the victim, the victimiser and the “we“ -perspective of the moral and political community, that is, as will be elaborated below, the subject of justice.

THE ROLE OF FORGIVENESS, JUSTICE AND RECONCILIATION IN HARM EXPERIENCES

Forgiveness has a paradoxical structure in terms of what motivates it and how it is realised that makes its immediate, everyday understanding sometimes problematic and puzzling. We can map this puzzlement in three different dimensions.

INTRODUCTION

Life stories are powerful. They are politically, socially, and culturally constructed. Stories reveal what we want to tell ourselves and the world but they also censor and silence what we do not want to tell. This author interviewed 37 women living in Lyd and Ramleh, using the life story method to collect data. Despite living on the margins, and being excluded and silenced as women, as Palestinians and as Israeli citizens, they were nevertheless able to keep and maintain a distance from an elitist, intellectual and masculine meta-national narrative, while fostering an open space that allowed them and others to learn about modern national ideology, where they could clarify who and what they endorsed, who and what they censored, and for which purposes. When referring to the Nakba – the expulsion and dispossession of Palestinians that they witnessed in 1948 – these women used phrases like “they came and took us”, or “when Israel came and took us”. This chapter asks what this phrasing means and what options it carries and offers? What are the limitations and the opportunities they suggest in relation to the Palestinian-Zionist conflict?

It is argued here that in these words of these Palestinian women, in particular those referring to 1948, although replete with memories of displacement, dispossession, and both personal and collective pain and sorrow, nevertheless the seeds of new opportunities are found. With their peculiar choices of phrases and terms, they signal their resistance to the narrative constructs of Zionist ideology and reveal its oppressive practices and policies. Simultaneously, however, they also challenge a parallel intellectual-masculine Palestinian national narrative. Despite the limitation of the patriarchal forms of expression, in resisting both narratives these women create opportunities and alternatives to abusive familial relationships that pervade each of the conflicted groups and their interrelations. Their mixture of political and personal, private and public discourses carries with it the potential to resolve the bitter conflict between the two nationalist ideologies, liberating both parties from their oppressive masculine dominant presumptions about freedom. Their words also indicate an innovative and subversive potential for a radical re-organization of Palestinian and Israeli social life, including gender relations.

INTRODUCTION

This chapter offers a reflection on the role that the duty to remember could play as a restorative measure against large-scale past abuses and as a mechanism to transform harmful identities. A true knowledge of the past is the first step of a critical reflection on the institutions, traditions and identities that have contributed to violence and the degradation of relations between members of a given political community. As was advanced in the Introduction to this volume, our critical remembrance proposal explores the possibility of becoming and staying critical toward our memory of suffering. However, this action of remembering, as we will discuss in this chapter, could not be guaranteed without a perspective of justice from which the value of the human dignity of all its members is established or restored in terms of inclusion and equality.

To that effect, Section 2 involves a philosophical discussion of the ideas of identity and tradition and the way that these notions are intertwined. Section 3 develops the notion of the duty to remember, particularly in the case of a troublesome past. It raises the common objections to a moral obligation with respect to past generations, and the importance of traditions and promises among generations in understanding this duty. Section 4 addresses the perils derived from the duty of remembering a difficult past, and the final section describes certain historical narratives that are able to contest and eventually transform harmful identities that are constructed in situations of political violence.

THE CONSTRUCTION OF IDENTITY AND TRADITION

A basic condition for being an active member of a political community is being recognized by the rest of the members as a moral agent, i.e. as a person who is able and has the right to make his or her own decisions, and in regard to others as being responsible for his or her own actions. However, moral agency is not a capacity that one possesses from birth. Rather, it is a capacity that one acquires through a process of socialization. At the same time, as moral psychologists have shown, the development of moral agency depends on the way that the social identity of the individual is constructed. From a hermeneutic viewpoint, personal and social identity is not based on some essence, but is constructed by traditions.

INTRODUCTION

Rwanda has inspired an ever-growing literature documenting the 1994 genocide against the Tutsi and its aftermath. The colonial manipulationsand antagonisation of identities, the power struggle that accompanied the decolonisation process, the ethnicisation of the post-colonial state, the dynamics of the genocide and post-genocide responses, are all widely covered in academic and non-academic literature. In the field of transitional justice, examinations of post-genocide processes in Rwanda have largely focused on the Gacaca courts that were instituted to try the overwhelming caseload of the 1994 genocide. The Gacaca mechanism is generally examined in terms of its compliance with human rights norms or its possible contribution to peace, social cohesion, healing and reconciliation. Ofter overlooked in dominant analyses is the fact that the Gacaca courts fit into wider socio-political narratives and processes in the post-genocide reconstruction landscape, and also how they fit into a post-genocide governmental ambition to re-create an ethnicity-free Rwandan society based on locally held values drawn mainly from the country's pre-colonial past.

Over the last decade, a number of government-sponsored initiatives appealing to tradition and presented as home-grown responses to the country‘s socio-political and economic challenges have been revived or reinvented. These include: Ubudehe (local collective action/ mutual assistance), Abunzi (mediation committees), Ingando (solidarity camps), Itorero ry’ igihugu (civil education programme), Urugerero (national service), Girinka (one cow per family in poverty), U muganura (harvest day), U muganda (community work), I mihigo (performance contracts), Ndi Umunyarwanda (Rwandan-ness/I am Rwandan) and abarinzi b’ igihango (guardians of the Covenant).

These initiatives are increasingly imagined as foundational pillars of the country‘s economic development and poverty reduction strategy, as well as essential tools for building social cohesion among Rwandans. The embracing of these initiatives is accompanied by a rewriting of the country‘s history, both literally and figuratively, and by the emergence of official narratives memorialising the near and distant past. Just like many other aspects of post-genocide policies, the adoption and implementation of what are locally labelled as home-grown initiatives sponsored by post-genocide Rwandan authorities are subject to highly polarised debates within political and academic spheres.

INTRODUCTION

The South African Truth and Reconciliation Commission (TRC) formed part of what is now regarded as an emergent trend of official state attempts at coming to terms with the aftermath of repressive regimes. This kind ofprocess, by necessity, involves a myriad of political, ethical and ofter also very personal complexities. In the same way as previous commissions of this kind, the TRC had to find a balance between so-called “truth finding”, retribution, reparations and the rather elusive concept of reconciliation. The mandate contained in the title of the Promotion of National Unity and Reconciliation Act (the 1995 Act) already established what were to be regarded as the priority concerns, namely “truth” and “reconciliation”. In the context of transitional justice this was regarded by many as a “middle road”, somewhere between impunity/amnesia at the one extreme and retribution/prosecution on the other. However, in the painstaking process of structuring the TRC proceedings it became clear that the trump ingredient, the panacea, was the concept of “truth”.

It is important to remember, first, that this rather fragile process took place under heavy influences of divergent political concerns, and, second, that due to the volatility of the political situation and the real danger of an outbreak of uncontrollable violence, the stakes were regarded as extremely high. Although the TRC process is now regarded as part of the legal and social history of South Africa, it is important to not relegate the insights gained at the time of the hearings to a fixed historical archive, but to rather regard it as an ongoing and open process mediating between past and future. Evidently the past, even a very dramatic past, as experienced by many South Africans, gets overtaken by new political agendas and alliances and new social problems. There is, however, an enduring legacy of a nation struggling, still struggling, in the aftermath of a painful past. The argument will be that keeping the past open, not to seal the archive as “done and dusted”, even in the face of new and difficult circumstances, is called for.

INTRODUCTION

In many polities, the transition from a rule of oppression to a rule of law 3 requires that various forms of “restorative justice” be done, as well as be seen to be done. Ofter enough, therefore, transitional justice entails not just a robust policy geared towards the rule of law, but also a policy that is mindful of a wrongful past. But then, not all forms of political mindfulness about a past of oppression, violence and suffering will work towards a future under the rule of law. This chapter argues that transitional justice, if and when it should usher in restoration somewhere, has to engage a specific kind of responsive remembrance that is here called anamnesis. The chapter will try and carve out the time structures involved in anamnesis and show that these are a good deal more complex than the links between past and future as they are usually distinguished in reflections on transitional justice. In particular, it will unravel these structures through an analysis of the nuclear formula “never again” that seems to capture the very core of various efforts to come to terms with political oppression in the past. The first part (Section 2) deals with three simplistic readings of the formula; Section 3 explores a more profound reading of “remembrance”, while Section 4 ties this reading in with restorative action. Thus, “anamnesis” becomes a lodestar on the thin line between liberating and enslaving remembrance.

“NEVER AGAIN” : THREE OVERLY SIMPLE STRATEGIES

How to live together with one‘s former oppressors? Both the attempt to fence oneself off from them and the effort to offer them a modus vivendi will use the same firm device: never again (nunca mas; nie wieder, etc.). These two words neatly express a speech act.

INTRODUCTION

Victims who survive a period of widespread, systematic, and atrocious violence run the risk of transitional justice (TJ) being but a brief interruption in the injustices they suffer, and that the justice it promises will be too vague to truly fulfil the promise of a transformation from one condition to another. Such promises of change may be from violence to peace, from dictatorship to democracy, or from a society with grave and systematic violations of human rights to one in which human rights are recognized and respected. The very meaning of justice in the context of transitional processes supported and given legitimacy by the international community is still very much a matter for debate, despite continuing to be the sine qua non of transition. The temporality and duration of transitional justice can mean anything if the process is focused merely on re-establishing order, “pacification”, and achieving what has been called negative peace that is limited to the ending hostilities and the prevention of an early return to violence (Mani 2002, 12). Its meaning is something entirely different, however, when the goal is a positive peace that emphasizes the consolidation of peace through political and structural reforms that prevent violence in the long-term, including the cessation of hostilities as one of its prerequisites (Mani 2005; Galtung 1998, 15 – 18).

Furthermore, the goals and purposes of the TJ process also reflect other things beyond a mere demand for recognized and enforceable justice.For example, the short-term goal of a cessation of hostilities or pacification may be incompatible with, or present an obstacle to, structural reforms that positive peace or an inclusive democracy may require. It may be that the search for negative peace and a suspension of violence requires granting concessions to those who perpetrated that violence or benefited from the human rights violations that occurred during it, if they are in positions of power during the process and are not inclined to lose or to risk their privileges, sacrifice their interests, or answer for all that they have done. In this context of concessions, hostilities may be provisionally suspended and deferred rather than brought to an end, and the legacy of violence may threaten to impose itself on the transitional process and the establishment of order in its wake, thereby continuing the violence or engendering its eventual renewal and intensification.

In the aftermath of the Second World War, with memories of the Holocaust growing to horrifying dimensions, a new humanitarian consciousness began to emerge that was grounded in the discourse of human rights. At the same moment in time, a new field of what is now called “transitional justice” began to develop. Transitional justice is the contemporary term used to refer to tools that societies adopt to bring about the rule of law following massive and systematic criminality, perpetrated by oppressive regimes. Deploying such tools is a complex task involving the design of various mechanisms, such as: criminal investigations and trials, procedural frameworks for seeking out the truth, official and social acknowledgments of what occurred in the past, reparation measures, and institutional reforms. More ofter than not such mechanisms have to be introduced under irregular and even chaotic conditions, at moments when private actors, both inside and outside the country, exploit opportunities to acquire power and property. Even establishing the most basic of legal infrastructure, like reliable real estate registries, fair tax systems, or systems to monitor and sanction public procurement, frequently meet with obstruction and sabotage by such actors. As such, establishing the rule of law and curbing corruption ofter have to go hand in hand. Unsurprisingly, this is easier said than done. To curb corruption effectively, one has to deploy a robust set of policies that do not always sit happily with the demands of political self-restraint that are enshrined in rule of law principles. At the same time, however, one cannot afford to curb them and diminish their effectiveness, as this will surely frustrate rule of law principles they are trying to establish.

Under such conditions, it is far from obvious how transitional justice can be conceived as being “restorative” justice. What is clear, however, is that doing so speaks to a broad spectrum of ideas, some practical and others reflective.

• 1. At the practical end, one can design relatively simple instruments, like the application forms issued by the International Center for Transitional Justice that are used for identifying, verifying, and registering people who are entitled to reparations.