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This first chapter sketches a brief conceptual history of reparations in international criminal justice and introduces some key concepts and terms used throughout the book. Chapter 1 shows how questions of justice in response to mass atrocities have been informed by two international normative demands: the ‘fight against impunity’ and the corresponding rise of international criminal justice; and the emergence of international human rights and the increasing attention paid to victims of crimes. These two main normative responses – punishment of perpetrators and redress for victims – gradually converged over time, laying the ground for the emergence of reparations mandates at international(-ised) criminal courts. That this was not a linear development is demonstrated by interrogating the absence of reparations at the two ad hoc international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).
Chapter 9 focuses on transitional justice, the challenge of tackling past human rights violations, in contemporary Latin America. It shows that the record of Latin American countries varies considerably, but that, in the aggregate, the record of Latin America is largely a success story. The frequency with which past human rights violations have been addressed, and the steps taken through truth commissions and human rights trials, puts Latin America at the center of the global transitional justice movement. It also demonstrates, through a comparative analysis of six countries (Brazil and Mexico, El Salvador and Guatemala, Chile and Argentina), that several factors determine the response to past human rights violations. Democracies that are strong and channel citizen preferences succeed in confronting the challenge of transitional justice. Additionally, a strong record of transitional justice is associated with strong civil society organizations, generational change and new legal thinking about human rights law in the judiciary, and progressive developments in international law.
Modern law seems to be designed to keep emotions at bay. The Sentimental Court argues the exact opposite: that the law is not designed to cast out affective dynamics, but to create them. Drawing on extensive ethnographic fieldwork - both during the trial of former Lord's Resistance Army commander Dominic Ongwen at the International Criminal Court's headquarters in The Netherlands and in rural northern Uganda at the scenes of violence - this book is an in-depth investigation of the affective life of legalized transitional justice interventions in Africa. Jonas Bens argues that the law purposefully creates, mobilizes, shapes, and transforms atmospheres and sentiments, and further discusses how we should think about the future of law and justice in our colonial present by focusing on the politics of atmosphere and sentiment in which they are entangled.
BHR is a fast-evolving interdisciplinary field and naturally its focus expands over time and new subdiscussions start to emerge. Such new discussions often appear at the intersection between BHR and other fields. This chapter briefly outlines four selected emerging discussions within the BHR field, namely: the intersection between BHR and the UN Sustainable Development Goals (SDGs), the relevance of climate change for BHR, gender perspectives on BHR, and BHR in post-conflict and transitional justice contexts.
This chapter identifies some of the broader effects of the social and legal invisibility of aesthetically unfamiliar atrocity processes beyond merely adding to the so-called impunity gap that afflicts international criminal justice. It does so by demonstrating how aesthetic biases favoring horrifically spectacular crimes not only undermines the goals and values ascribed to ICL itself, but also contributes to a variety of negative outcomes that go far beyond missed prosecutorial opportunities. ICL’s myopic focus on horrifically spectacular crimes raises a host of troubling questions concerning what harms are prioritized and whose interests are served by international criminal justice. This chapter considers some of these implications, specifically those relating to theories of punishment, and ICL’s role in shaping historical memory, how transitional justice, peacebuilding, human rights issues are framed and pursued, along with global justice more broadly.
Countries undergoing or recovering from conflict and authoritarianism often face profound rule of law challenges. The law on the statute books may be repressive, judicial independence may be compromised, and criminal justice agencies may be captured by powerful interests. How do lawyers working within such settings imagine the law? How do they understand their ethical obligations towards their clients and the rule of law? What factors motivate them to use their legal practice and social capital to challenge repressive power? What challenges and risks can they face if they do so? And when do lawyers facilitate or acquiesce to illegality and injustice? Drawing on over 130 interviews from Cambodia, Chile, Israel, Palestine, South Africa, and Tunisia, this book explores the extent to which theoretical understandings within law and society research on the motivations, strategies, tactics, and experiences of lawyers within democratic states apply to these more challenging environments.
National and international lawyers are ubiquitous in transitional political negotiations. However, their role in advancing or stalling negotiations, or in advocating or resisting progressive change, is generally carried out behind closed doors. This chapter explores when and how lawyers living and working within repressive, conflicted, and transitional states influence the content of transitional political agreements. It draws on twenty-five interviews with lawyers who participated directly in negotiations and other informed commentators in our case study sites. Combining this empirical data with literature on lawyers as negotiators, the sociology of the legal profession, and critical international legal theory, the chapter explores the factors that shape relationships between lawyers and the political leadership in negotiations. The chapter further critically analyses the extent to which lawyers’ negotiating styles and legal skills can advance or inhibit the reaching of an agreement. The final section explores the discretion and capacity of lawyer-negotiators for legal imagination in crafting transitional futures. We find that lawyer-negotiations often have to grapple with reconciling their role as legal technicians with the ethical and political challenges of advising on law’s content at times when the law itself is indeterminate or subject to negotiation.
Transitional justice systems generally aim to achieve two goals. One is to bring the perpetrators of past atrocities to justice to ensure that they do not go unpunished, which involves the State fulfilling its duty to investigate, prosecute and punish serious human rights violations and breaches of international humanitarian law (IHL). The other is to bring about reconciliation to heal a divided society and achieve peace and stability. This normally requires the adoption of measures of clemency, such as granting amnesty, so that those who took part in the country's violent past can return to civilian life. The use of IHL is relevant in attaining both these goals because its complex nature means that it provides the legal basis for their implementation. However, this very complexity can mean that there are contradictions or complementarities between its characteristics. This article looks at the case of the Special Jurisdiction for Peace (JEP) in Colombia, showing how this transitional jurisdiction has used IHL as a legal basis both for investigating, prosecuting and punishing serious violations committed during the Colombian armed conflict and for granting amnesty to those who took part in the hostilities. These different uses by the JEP demonstrate that IHL is a flexible tool that can facilitate the process of delivering both justice and peace after a conflict has ended.
Transitional Justice (TJ) focuses on the processes of dealing with the legacy of large-scale past abuses (in the aftermath of traumatic experiences such as war or authoritarianism) with the aim of fostering domestic justice and creating the basis for a sustainable peace. TJ however also entails the problem of how a torn society may be able to become a self-determining member of a just international order. This paper presents a minimal conception of TJ, which departs from Rawls' conception of normative stability of the international order, which suggests disentangling the two goals of fostering democracy within torn societies and TJ itself. The scope of TJ is therefore limited to enabling these societies to create minimal internal conditions for joining a just international order on equal footing. This paper makes an original contribution to two different debates, namely normative research on TJ, and post-Rawlsian literature in general. First, it provides a new direction for normative theorizing about TJ which takes both its domestic and international dimensions seriously into consideration. Second, it extends Rawls' political liberal outlook to an area where it is not usually understood to apply.
Transitional justice refers to the process of dealing with widespread wrongdoing characteristically committed during the course of conflict and/or repression. Examples of such processes include criminal trials, truth commissions, reparations, and memorials. Technology is altering the forms that widespread wrongdoing takes. Technology is also altering the form of processes of transitional justice themselves. This essay provides a map of these changes and their normative implications.
This article discusses the existence of an international obligation for the State of Colombia to guarantee access to abortion services for women and girls who are victims of conflict-related sexual violence in the context of the Colombian armed conflict. By examining international humanitarian law rules from an international human rights law lens, it sets out the interdependence between both frameworks from reproductive health and human rights perspectives. Furthermore, the article provides considerations on the recognition and redress of these violations in the transitional justice scenario in Colombia.
In the literature on transitional justice, there is disagreement about whether countries like the United States can be characterized as transitional societies. Though it is widely recognized that transitional justice mechanisms such as truth commissions and reparations can be used by Global North nations to address racial injustice, some consider societies to be transitional only when they are undergoing a formal democratic regime change. We conceptualize the political situation of low-income Black communities under the U.S. imprisonment and policing regime in terms of three criteria for identifying transitional contexts: normalized collective and political wrongdoing, pervasive structural inequality, and the failure of the rule of law. That these criteria are met, however, does not necessarily mean that a transition is taking place. Drawing on the American political development and abolition democracy literatures, we discuss what it would mean for the United States to transition out of its present imprisonment and policing regime. A transitional justice perspective shows the importance of not only pushing for truth and reparation, but for an actual transition.
There exists a vast body of scholarship, written from multiple disciplinary and cross-disciplinary perspectives, exploring the complexities of resilience. It is striking, however, that resilience has received only limited attention in the context of communities and societies that have experienced conflict, violence and large-scale human rights abuses. It has similarly attracted little attention within the field of transitional justice. The book’s introduction sets out how and why this unique volume, which includes eight case studies, seeks to address these gaps. It proceeds to outline and discuss the three central strands that run through the book and weave the different chapters together, namely resilience (which the book approaches as a systemic and social ecological concept), transitional justice and de Coning’s adaptive peacebuilding. What this edited volume ultimately seeks to demonstrate is that thinking about resilience as a multi-systemic concept opens up a space for developing new ways of theorizing and operationalizing transitional justice that are more responsive to the wider social ecologies that link individuals and communities to their environments – and to the broader systems within which transitional justice work takes place. Responsiveness to these social ecologies and systems, in turn, is a crucial part of adaptive peacebuilding.
The use of rape was common during the 1971 war in Bangladesh. Six days after the war ended, the new government publicly declared that any woman raped in the war was a birangona or ‘war heroine’. There exists a public memory of wartime rape through various literary, visual and testimonial forms, ensuring that the raped woman endures as an iconic figure. However, women’s experiences of wartime sexual violence are often explained through the limited lenses of silence, voice, shame, honour, gender, patriarchy, stigma, trauma and ostracisation, which help to create the figure of the horrific raped woman – meaning that birangonas are often assumed to have a horrific life trajectory. This can undermine the very resilience that characterises many of the women who were raped. In contrast, this chapter focuses on generative resilience, as offering a different narrative of sexual violence that emphasises women’s abilities to continue to live with and pass on the experiences of sexual violence in ways that are uniquely relational. It is this contextualised and social ecological understanding of resilience that needs to inform adaptive peacebuilding, in order to foster a nuanced understanding of the effects of rape as a weapon of war.
This chapter reflects on the implications of resilience thinking for transitional justice as a transformative process that contributes to adaptive peacebuilding. It discusses how the concept creates space for new thinking about transitional justice and the potential dangers and opportunities afforded by a resilience approach. 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 the hegemonic 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. It demonstrates this 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 further examines how various transitional justice mechanisms might contribute to individual, community and systemic societal resilience, while also recognising their limitations.
This chapter analyses different aspects of resilience, or the lack thereof, within the experiences of those affected by five decades of armed conflict in Colombia. Although resilience has long been understood in a person-centred way, this chapter argues that such personal aspects of resilience cannot be understood in isolation from broader socio-economic aspects such as work, social relations and communities’ wider developmental and infrastructural conditions. The chapter discusses whether and how transitional justice has addressed these issues in Colombia. Looking particularly at reparations, it demonstrates that transitional justice has predominantly taken a person-centric approach oriented towards monetary compensation, while disregarding the wider social, built and natural environment. It also explores how the needs of those affected by conflict can change over time and across conflict experiences and geographical spaces. This necessarily requires an ongoing analysis of locally-specific needs and conditions, in line with the core elements of adaptive peacebuilding. The chapter concludes with reflections on how transitional justice, including the restorative justice sentences which will be applied by Colombia’s most recent transitional justice mechanism – the Special Jurisdiction for Peace – could help to promote the resilience that conflict-affected communities need to move forward.
This chapter explores the tensions between resilience models of recovery, adaptive peacebuilding and transitional justice by examining the 1994 genocide of Tutsi in Rwanda, its aftermath and the country’s recovery processes. Rwanda has been lauded as a success story for post-genocide recovery, peacebuilding and transitional justice. Yet, a closer look demonstrates that its recovery and peacebuilding reinforced a centralised state and the ruling party’s dominance. These processes produced the appearance of stability and resilience while hiding new hierarchies and social divides that risk generating conflict in the future. Adaptive peacebuilding efforts led by local non-governmental organisations, on the other hand, responded directly to ordinary people’s immediate needs without promoting political agendas. Government-led transitional justice efforts often disrupted these local successes and ultimately benefitted the nation-state at the expense of community healing. The lessons learned from the Rwanda case point to the importance of tending to local-level concerns in recovery processes and of employing peacebuilding approaches that focus on broad notions of positive peace instead of only state-building. In addition, resilience models of recovery must consider micro- and macro-level concerns and pay attention to the impact of political power on outcomes.
In the aftermath of the more than twenty-year armed conflict between the Lord’s Resistance Army and the Ugandan government, northern Uganda has become a transitional justice laboratory. In response to widespread human rights violations perpetrated by both the rebels and government soldiers, various peacebuilding and transitional justice mechanisms have been put into place. However, many of them are top-down and externally-driven, inaccessible to rural communities and/or irresponsive to diverse experiences and post-conflict needs. In this vacuum of post-conflict assistance, different alternative avenues have emerged at the micro level that ultimately enable war-affected communities to engage with their subjective experiences on their own terms. This chapter specifically focuses on the role of survivors’ support groups. It shows how different types of survivors’ groups, in a creative and participatory manner, enable survivors’ agency and craft spaces for healing, justice making and peace-building, shaped by survivors’ own experiences and needs. Support groups thereby aid survivors in developing adaptive capacities to positively respond to shocks and stressors resulting from mass violence. In this way, these groups also contribute to fostering individual and community resilience.
The concept of resilience is best understood as a process whereby individual capital and social capital intersect in ways that create optimal outcomes in stressed environments. As a process, resilience can look very different in different contexts, with any single system (including systems that promote economic and environmental justice, human rights, and law enforcement ) showing patterns of persistence, resistance, recovery, adaptation or transformation depending on the resources that each system has available to support positive change. This chapter explores these processes and how they affect systems simultaneously at multiple levels. This understanding of resilience as a multi-systemic concept can help to explain how transitional justice processes and the broader systems with which they interact (both judicial and non-judicial) respond to stressors, thereby shaping how individuals, communities and institutions deal with adversity and shocks. Brief case examples are used to show how resilience changes depending on a population’s exposure to extreme forms of potentially traumatising events like war, forced migration, genocide and chronic economic disruption.
Memory laws are often accused of enforcing an inaccurate, manipulative or populist view of history. Some are also said to violate fundamental rights, in particular the right to free speech. These accusations are not entirely unjustified. Yet, a discussion of memory legislation that concentrates on these faults might be missing its mark. The main problem with memory legislation is not necessarily with the merits of any particular law. Rather, the determination of historical facts is not the kind of matter that should be entrusted to the legislator in the first place. The role of legislation is to make social cooperation possible despite substantial disagreement, but only when such social cooperation is indeed required. Disputes about historical facts, I argue, are not a coordination problem that requires a legislative solution. Still less can they justify legal coercion.