Exploring/Expanding the Reach of Transitional Justice

Strict justice may well be impossible in any case of gross violence or systemic degradation, yet the question of how best to conceive the measure of justice remains.1 The practice of justice for every society can only emerge through an indigenous process of trial and error, whereby norms and institutions are built, gradually over time, in a process that combines lessons learned from bad experiences as well as benefits gained from good ones. What is justice, to which ends and how it works in practice are all matters for each community to experience on its own terms.2 Over a quarter of a century has passed since Chileans and South Africans initiated a set of complex processes in search of truth, justice and reconciliation in the wake of gross violations of human rights as each country transitioned towards a more democratic regime. Those who survived military dictatorships and racialized and gendered violence during armed conflicts and genocidal violence in these and many other countries have sought to tell their stories, seeking to redress the harm suffered and ensuring – or so they hope – accountability and nonrepetition. Legal, social and political mechanisms and processes at community, national and international levels have been developed to support those aims. Nongovernmental organizations (NGOs) and activists accompany multiple and diverse victim-centred processes through which survivors are pressing their demands. Much of this work takes place within societies seeking to transition from armed conflict, dictatorship and other authoritarian regimes towards more participatory and democratic forms of governance, although the mechanisms and processes also sometimes serve as avenues for addressing entrenched conflicts and/or in peace-seeking processes. Thus, these processes are deeply embedded in national contexts of transition. An interdisciplinary body of scholars – including those whose work is presented in this issue of the Journal – has critically engaged with the diversity of policies and practices that challenge the definitional borders and document the lived experiences of those seeking ‘transitional justice’ (TJ). Despite considerable debate and a growing scholarship, most recognize TJ as a set of processes and mechanisms, including accountability, justice and reparations, operationalized by those seeking to come to terms with the multiple legacies of large-scale past abuses and to ensure nonrecurrence. Some add reconciliation to the above three pillars whereas others, for example in Latin America, counter that reconciliation sustains impunity for the powerful perpetrators of state violence who continue to benefit from deeply embedded structures of gendered and racialized violence, persistent colonialism and neoliberal capitalism. The extent, benefits and limits of a victim-centred focus in TJ have been widely debated – including in the pages of this journal – and multiple authors argue that TJ processes have failed to adequately accompany women and child survivors of gross violations of human rights, particularly sexual violence, sometimes even retraumatizing them through the very judicial processes through which they have sought redress and accountability. Some argue that early gross underestimations of sexual harm against women in truth and reconciliation processes have been exacerbated by the judicialization of TJ in which an ‘essentialized narrative of sexual harm’ hypervisibilizes women as victims.3 In response, some activists and scholars emphasize the need for intersectional, collective and performative TJ processes through which women protagonists engage in community-based practices, making meaning of diverse TJ processes in search of healing and conciliation.4 These latter practices emphasize the context-specificity of TJ and the critical importance of local communities and grassroots organizations that drive ‘bottom-up’ justice-, truth- and reparations-seeking and meaning-making processes. Despite the ongoing evolution and context-specificity of TJ practices, most continue to be embedded in civil and political rights. They are frequently criticized as failing to redress the violations of social, economic and cultural rights and the structural inequities that underlie and have given rise to or supported violations of civil and political rights. While some have sought to incorporate these second-generation rights into existing TJ processes, others argue that a return to the status quo ante commonly sought through courts and reparations processes fails to redress the underlying root causes of these crimes against humanity, namely systemic and structural inequities. Despite these limitations and contradictions, a growing number of indigenous, Native peoples and activists of colour in the global North are drawing on these experiences from the South to employ TJ processes and mechanisms as potential resources for redressing historical and/or massive or large-scale violations of human rights. Such long-term historical violations include colonialism, the forced migration of indigenous peoples whose lands have been expropriated, large-scale environmental degradation that gives rise to natural disasters (see, for example, Megan Bradley in this issue), and the enslavement of Africans within the Americas and beyond. A growing body of research as well as grassroots and indigenous activists documents the intergenerational legacies of these gross violations of human rights as well as various individual, community and institutional continuities of violence within these 21st-century communities. But is TJ a good, or adequate, resource for addressing the large-scale and/or intergenerational legacies of such gross violations of human rights? Drawing on some of the above insights, one could argue that any effort to redress historical and massive gross violations of human rights must be embedded in and attentive to the local historical context, and involve the diverse communities affected by and responsible for the historical injustice. The First Nations or aboriginal peoples of Canada, the Māori and Pākehā of New Zealand and the Wabanaki of Maine (USA), for example, have sought redress for longstanding historical and massive violations of their rights as indigenous and Native peoples. In the cases of Canada and the USA, this has drawn attention to the intergenerational legacies of violence and violations due to the settler nation’s institutionalization of forced removal of indigenous people’s children to Indian residential schools in each country. These initiatives paralleled the 2007 adoption of the UN Declaration on the Rights of Indigenous Peoples, the fruit of decades-long advocacy and activism among an international coalition of Native and indigenous peoples. The Declaration institutionalizes a set of rights situated in and emergent from Native people’s collective self-understanding, spiritual and cultural beliefs and practices, territorial rights, self-determination and understanding of the integral relations and continuities with the natural environment. Similarly, although drawing on a different set of historical experiences of forced displacement from traditional lands and enslavement, selected initiatives by local community groups, NGOs and educational institutions in the USA suggest some openness to exploring redress for the longstanding legacies of slavery and its institutionalized continuities in contemporary massive assaults on and incarceration of African Americans and, by association, other peoples of colour in the USA. These include the 2006 report of the privately financed Greensboro Truth and Reconciliation Commission that examined the 1979 murder of five antiracist community activists by Klansmen and neo-Nazis,5 the state of Florida’s 1994 compensation package for the survivors of a white race riot that destroyed the town of Rosewood in 1921,6 and the 2017 announcement by the Society of Jesus of a set of individual, collective and community reparative actions, some of which specifically target descendants of the 272 slaves they sold in 1838 to economically sustain Georgetown University.7 Conservative Canadian prime minister Stephen Harper’s 2008 official apology on behalf of the Canadian state to indigenous survivors of the Indian residential school system marks another indication that some movement towards redress by settler nations could be forthcoming.8 Yet the complexities of contemporary TJ processes in the international context of armed conflicts and postconflict are even more challenging for those who seek redress for historical violations given the longstanding democracies of settler nations, including the USA, Canada and Australia. Despite their commitment to universal human rights, widespread disparities in health, education and well-being within Native communities and among people of colour suggest that historical genocidal violence and its legacies have not only not been redressed but their underlying causes have been institutionalized in neoliberal economic and political systems. Moreover, these nation states have not ‘transitioned’ in any sense of the term. As significant, despite the above initiatives, Harper’s 2008 official apology was followed by an equally high-profile statement at a gathering of the G20 in Pennsylvania in 2009, in which he asserted that Canadians had no history of colonialism. Similarly, President Barack Obama’s signing of US congressional resolution S.J. RES. 14 – ‘To acknowledge a long history of official depredations and ill-conceived policies by the Federal Government regarding Indian tribes and offer an apology to all Native Peoples on behalf of the United States’9 – in obscurity in 2008 is another fraught gesture. The silencing surrounding this act and the title itself suggest the problematic nature of the apology and the language of reconciliation represented in this gesture.10 Despite acknowledgement of ‘harm,’ ‘depredation,’ even violence done, these apologies confirm the failure of the heads of states of these northern democracies to recognize the institutionalization of these historical structural injustices and the ongoing and persistent legacy of inequities. Moreover, there is no recognition of the need for a fundamental transition in or transformation of the socioeconomic system that has persisted since colonization. Relatedly, national opinion polls within the USA confirm that the vast majority of whites are not open to considering redress for slavery, and the issue, although supported by many African Americans, is contested by others.11 Moreover, Representative John Conyers continues to be unable to get his H.R. 40 Commission to Study Reparation Proposals for African-Americans Act – a proposal for a national commission to examine the history and effects of slavery and its sequelae in the USA today – passed by the US Congress.12 Some activists and critical race theorists and Native critical theorists in Latin and North America bring alternative frameworks that both support and challenge claims that TJ might serve as a resource for the communities seeking redress from historical and massive violations of human rights. African American attorney, public intellectual and activist Bryan Stevenson has carefully traced continuities and discontinuities between slavery and contemporary incarceration of African Americans, while contributing importantly to unmasking the silence about lynching within the USA through a memorialization project in Alabama in which he not only seeks to re-member each lynching in the state but also to engage the local communities in which they were carried out in memorialization processes.13 Writing in the Canadian context, indigenous scholar Glen Sean Coulthard argues that settler colonialism is entrenched and enacted in land claims and self-government policies that ‘reproduce the very configuration of colonialist, racist, patriarchal state power that Indigenous peoples’ demands for recognition have historically sought to transcend.’14 Colonial domination continues to be structurally committed to maintain – through force, fraud, and more recently, so-called ‘negotiations’ – ongoing state access to the land and resources that contradictorily provide the material and spiritual sustenance of Indigenous societies on the one hand, and the foundation of colonial state-formation, settlement, and capitalist development on the other.15 Although not directly focused on historical and massive violations of human rights, the articles in this issue of the Journal present empirical research in a variety of continents and theoretical contributions that directly address the question of TJ’s borders and its relevance beyond its contemporary policies and practices. Renee Jeffery, Lia Kent and Joanne Wallis; Kirsten Ainley; and Bradley take up most directly some of the challenges posed by thinking too rigidly about the borders of TJ, particularly vis-à-vis those who we think of as the primary advocates for, or accompaniers of, victims and survivors in these highly judicialized processes. Jeffery and colleagues draw on experiences in the Solomon Islands, Timor-Leste and Bougainville to analyze the diverse and heterogeneous roles of civil society institutions, with a particular focus on religious institutions and TJ processes. They challenge the conventional conceptions of civil society, which they argue are inappropriately applied by TJ scholars in nonwestern contexts. Bradley writes about extending TJ’s borders in a nuanced article that explores when, if at all, TJ processes can contribute to redressing injustices in disaster relief that go unaddressed by humanitarian efforts. She explores multiple dimensions attendant to disasters and current responses to them, arguing that in some, although not all, cases TJ policies and processes would be an important complement to survivors’ struggles in the wake of what are increasingly clearly ‘unnatural disasters’ in many parts of the world. Finally, Ainley examines a broad sample of literature evaluating the TJ programme in Sierra Leone to argue that differences in understanding of the nature and value of the ‘justice’ in TJ affect what it is that is evaluated and the way the results of those evaluations are interpreted. Based on these findings, she argues that TJ praxis would be more effective if those who engage and evaluate this work were more explicit about the value orientations from which they assess the work and more attentive to the political implications of different value positions. The three contributions from Amy Rothschild; Omer Aijazi and Erin Baines; and Cheryl Lawther, respectively, take up challenges within TJ processes that could, arguably, extend borders and boundaries through looking more deeply at dominant conceptualizations of men’s and women’s gendered experiences during conflict and in seeking redress from its sequelae. They focus on the gender–victim binary, on relationality and culpability within men’s experiences of forced marriage during armed conflict, and on some of the ways in which male loyalty and emotion shape men’s willingness to participate and interest in TJ processes. Rothschild’s article examines the politics of victims’ rights in Timor-Leste over a decade after Timor’s independence from Indonesia. She argues that Timor’s victims’ rights movement has floundered because of the emergence of a gendered victim–veteran binary, in which the ‘victim’ is defined as passive, in contrast to the ‘veteran’ who actively resisted Indonesian rule. She urges truth commissions to avoid adopting an innocent, suffering victimhood discourse to prevent similar victim–veteran binaries elsewhere. Aijazi and Baines focus on the experiences of the Lord’s Resistance Army in Northern Uganda, exploring how a rights-based approach to forced marriage problematically repeats multiple binaries (women/men, victim/perpetrator, etc.) and obfuscates and renders invisible men’s gendered experiences during and beyond this conflict. Lawther, based on her research with ex-combatants in Northern Ireland, argues that their antipathy towards truth recovery cannot be addressed without critically interrogating the emotions vested in the combatant/ex-combatant experience and the intersection between emotions, politics and ideology. In particular, the article focuses on the emotion of loyalty and its influence on pro-state armed actors. She explores four different types of loyalty and concludes by suggesting the need for greater recognition of the role of loyalty in mediating relationships with, and willingness to investigate, the past. The last two articles explore TJ in global context, seeking to deepen our knowledge of the multiple contributions of international players to TJ processes within Romania and Burundi. Raluca Grosescu shows how the current shifts in Romanian jurisprudence have been built upon, and have drawn inspiration from, a recent global convergence towards the use of international criminal law for addressing the crimes of dictatorial regimes and the obstacles to their prosecution, such as amnesties or statutory limitations. The study demonstrates the enabling functions of noncoercive exogenous influences in the Romanian process of dealing with the past. Sidney Leclercq reminds us that both national and international actors can subvert local TJ processes through an examination of the Burundi peace process. Arguing that the convergence of local and international factors made the adoption of TJ inevitable in Burundi, the research documents the impossibility of its actual realization given the local political constraints. The author calls for a greater questioning of the TJ model promoted and deeper research into the localization dynamics, especially in post peace-settlement contexts. Finally, Zahira Aragüete-Toribio provides a review of recent contributions on perpetrator studies. Against the backdrop of the public reactions to the documentary The Act of Killing, she examines how different authors have engaged with the testimony and corpse of the perpetrator as heuristic devices that reveal the degree of consensus and dissent at play in postconflict narratives, and elucidate the quality of the democratic practice at play in postconflict societies.

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