Women and Transitional Justice

Progress and Persistent Challenges in Retributive and Restorative Processes

M. Alam

• Editorial: Palgrave Pivot
• Año: 2014
• ISBN:
  9781137409362
• Categoría: Ciencias sociales
• Categoría: Criminología

How can transitional justice institutions provide due diligence to the lived experiences of women during war and violent political upheaval? How can transitional justice provide redress to women for harms suffered? How can transitional justice help transform unequal gender relations post-conflict? These are some of the difficult but urgent questions addressed in this unique study.

Providing a compelling case for greater sensitivity towards the needs of women and increased efforts to promote women's participation in transitional justice initiatives, Alam presents theoretical and conceptual analysis alongside revealing case studies from Kenya and Bangladesh. The study offers descriptive, normative, and prescriptive value intended to improve the practice of transitional justice institutions and elevate the status of women in conflict-affected societies.

This is a timely resource especially in light of the forthcoming 15th anniversary of UNSCR1325, and will appeal to awide range of scholars and practitioners in Security, Peace, and Conflict Studies, International Law, and Gender Studies.

1

Defining Key Terms and Concepts

Abstract: Defining terms sets the theoretical and conceptual parameters for this study. In this chapter, transitional justice, conflict resolution, gender, gender mainstreaming, sexual violence and gender-based violence are introduced, along with some of the debates related to these concepts, and other key terminology that falls under these topics, which are pertinent to the arguments presented in this book.

Alam, Mayesha. Women and Transitional Justice: Progress and Persistent Challenges in Retributive and Restorative Processes. Basingstoke: Palgrave Macmillan, 2014. DOI: 10.1057/9781137409362.0005.

Transitional justice: redress through restoration and/or retribution

For states in transition, especially those emerging out of periods of mass political violence and socioeconomic upheaval, undertaking transitional justice initiatives can have transformative effects on the state’s political institutions, social cohesion, rule of law, and even economic viability. At an individual level, transitional justice can provide a forum through which to air grievances, seek redress, or face the consequences of one’s actions. These are some of the most common purposes that transitional justice can serve but, to date, there is no single, accepted, universal definition of what constitutes transitional justice.

The term “transitional justice” was coined by Ruti Teitel in her 2000 seminal work Transitional Justice and, since then, has gained prominence in scholarly and policymaking discourse on human rights. Her conceptualization of transitional justice is intimately connected to the human rights and justice discourse that emerged in the post-World War II era, shaped primarily prompted by the horrors of the Nazi Holocaust. The strong emphasis on accountability, legal institutions, punishment, and collective healing can be traced back to the Nuremberg Trials, which are most commonly perceived as the first instance of a transitional justice initiative (Teitel, 2000). However, the idea of transitional justice – what it means, what it encompasses, how it is useful, whom it serves, and when it is appropriate – have continued to evolve in the decades since WWII. For example, Paige Arthur (2009) argues that the notion of transitional justice is inseparable from, and a product of, the late 1980s, in particular the experience of human rights advocates and civil society groups who fought against oppressive regimes in multiple Latin American contexts to shed light on serious crimes perpetrated by the state against citizens, mainly civilians. Her conceptualization of transitional justice emphasizes a shift away from a “naming and shaming” approach to justice toward one focused on “transition[ing] to democracy” that prioritizes accountability and legal reform (Arthur, 2009: 321).

Some scholars in the post-Cold War era have argued that the label “transitional” is unnecessary and even misleading because it distorts the essence of justice, whereas others argue this label is what distinguishes, in theory and in practice, justice in the wake of conflict from justice during times of peace and stability (Bickford, 2004).

The International Center on Transitional Justice (ICTJ), an independent, nongovernmental organization that does research, advocacy, consulting, and training in this field, proposes a theoretically inclusive and practically oriented definition. According to the ICTJ, transitional justice is:

A response to systematic or widespread violations of human rights. It seeks recognition for the victims and to promote possibilities for peace, reconciliation, and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuses. (ICTJ, “What Is Transitional Justice?” Lines 1–5)

This definition acknowledges the political dimensions of undertaking this type of justice, the systematic nature of crimes and widespread abuses, the inseparable nature of transitional justice from larger justice without dismissing the former altogether, and identifies the links between transitional justice, peace, and democracy.

In this sense, transitional justice – like other forms of justice – is about distinguishing between right and wrong and responding appropriately and proportionately to the wrongful act, the agent of the wrongful act, and the sufferer of the wrongful act. Yet, unlike other forms of justice, transitional justice occurs in response to or in the aftermath of violent conflict and political upheaval. As such, there are a few exceptional elements, which include the extreme nature of the harm caused, the larger sociopolitical context, and the likelihood of collective suffering, all of which bears historical significance at the national – and sometimes international – level. Indeed, in transitional justice, not only are crimes almost always politicized but so too are the institutions and processes of transitional justice.

Transitional justice initiatives usually address the most egregious human rights abuses and thus are by nature selective in terms of what crimes are addressed, which perpetrators are held accountable, and even which victims are offered redress. No transitional justice institution – whether it is a special court, a truth commission, a memorial, a reparations administration, or some other form – can offer redress to every victim. As such, there is often a give-and-take component of transitional justice, an understanding that exists between society and the state that not all crimes can be punished, not all victims’ needs shall be met, and that healing is only ever partial. In turn, transitional justice is less about reconstructing the past and more about transforming the present and creating a new direction for the future.

Transitional justice offers a set of legal and political mechanisms that can be utilized to facilitate accountability for perpetrators, justice for victims, inter-group reconciliation, and truth telling. At the same time, transitional justice creates the opportunity to establish an accurate historical record of a conflict and to offer voice to the voiceless by acknowledging different narratives based on varied experiences that may include extreme physical violence or entrenched socioeconomic suffering and political marginalization. Transitional justice, by both the virtues of its conceptualization and overarching purpose, is at once focused on the past, the present, and the future. Buckley-Zistel and Zolkos (2012: 2) explain:

As a past-oriented practice, [transitional justice] addresses wrongs that have been committed during a conflict; as a present-oriented practice, it establishes a new ethical and institutional framework of post-authoritarian and/or transitional politics for interpreting the past and, through this, it seeks to prevent the future occurrence of gross injustices and violence.

Anderlini, Conway and Kays (2006: 1) propose an alternative, narrower framing of transitional justice. They claim that transitional justice only includes:

Short term and often temporary judicial and non-judicial mechanisms and processes that address the legacy of human rights abuses and violence during a society’s transition away from conflict or authoritarian rule.

In doing so, the time dimension added by Anderlini and her colleagues – which some scholars and practitioners agree with whereas others do not – excludes processes such as the ongoing war crimes tribunal in Bangladesh, a case discussed later in Chapter 4 because the transitional justice initiative began four decades after the violations were committed. In this same vein, the “short-term and temporary” limits set by the definition suggest that there is a window of opportunity for transitional justice in a post-conflict situation. There is no universal agreement amongst scholars or practitioners about whether there is an optimal time period after the cessation of conflict within which a transitional justice initiative must be mounted in order to be useful, or, whether transitional justice can be something that is pursued without a time frame. This is one of the key debates in the field.

There are pros and cons to the timing of any transitional justice initiative; whereas some societies rush into it, others wait a very long time before beginning a collective process of accounting and redressing for the past, if ever. Various models and experiences suggest that although there may be a time in any given society or context that is “ripe” for the establishment of a transitional justice endeavor, context-blind time frames are neither useful nor should they be dictated by theorists. Indeed, whether transitional justice can and should be undertaken – and through what mechanisms – varies from case to case and must be contextually relevant and historically appropriate.

Transitional justice is both a top-down and bottom-up idea and requires some agreement or consensus between the state and the masses. This is not to suggest that the relationship is equal or that the state and citizens want the same things at the same time. Rather, that transitional justice requires both the commitment of state authorities as well as buy-in, even if uneven, from the people. Anderlini, Conway, and Kays highlight one very important connection between transitional justice and peace by introducing the idea of sustainability. As they correctly argue, peace in the wake of extreme periods of violence and human rights abuses can only be sustainable when the wrongs committed and the wrongs suffered are addressed. As such, transitional justice is also a mechanism for creating enduring peace and this idea inextricably links it to the field of conflict resolution.

Conflict resolution: conflict, peace, security, and violence

Transitional justice is part and parcel of the field of conflict resolution. Conflicts arise when two or more parties are in disagreement because a mutually agreeable resolution is ostensibly unachievable. Conflict, here, relates to disagreements – particularly those that have a violent manifestation – in the realm of international affairs and that can arise between or within states. In accordance with the continuum of violence, conflict resolution here encompasses different stages of addressing conflict including prevention, de-escalation, management, mitigation, resolution, and transformation. Although transitional justice is conventionally thought of as a post-conflict issue, it holds important functions for preventing a recurrence of conflict, and therefore reducing the recurrence of human rights violations addressed by a transitional justice initiative, as well as for maximizing peace and security.

Peace and security are two sides of the same coin but “security” is hardly a monolithic concept. Rather, security is a relative concept and what constitutes security can vary vastly. Increasingly, scholars and political leaders are acknowledging that as with conflict, a continuum of security exists. Although a more conventional and realist outlook frames the concept of security in a state-centric manner, referring exclusively to the physical security derived from the norm of sovereignty and the accruement of a robust military, more progressive and inclusive notions of security acknowledge that beyond tanks and borders, security is also about what happens inside a state and in particular, the security of individuals. This broader conceptualization of security, which is increasingly referred to as “human security,” is pertinent to transitional justice and the pursuit of gender equality within transitional justice processes.

Peace, individual security, and state security have a reciprocal relationship. Peace, here, encapsulates more than purely the absence of armed conflict or war. Rather, peace is a state of harmony between states and within states, including between sociopolitical groups of people. Transitional justice seeks to transform states and societies, which can only be doable with a broader perception of both security and peace.

Closely related to peace and security, violence can manifest in many forms for many reasons and is not simply the act or consequence of physical harm. An inclusive conceptualization of violence, like security, is integral to transitional justice because redress is sought not only for human rights abuses that result in physical harm but also for other material and non-material forms of suffering. The toolbox of transitional justice mechanisms makes room for physical and non-physical forms of violence and usually this can be traced along lines of retributive versus restorative justice. So what is meant by violence?

In accordance with Galtung’s theory, violence can be direct, which is the more traditional conceptualization whereby physical harm results from combat or assault, or structural, whereby political, economic, social, and legal systems result in marginalization such as health inequity, or cultural whereby direct and structural violence are legitimized, sustained, and carried out (1969: 169–170). All three forms are significant not only to transitional justice broadly but also to the application of a feminist analysis of the field that concentrates on women’s participation, inclusion, and experiences vis-à-vis transitional justice.

Gender mainstreaming, gender balance, gender analysis, and gender justice

As previously noted, women have been historically excluded from partaking in, benefitting from, and being present within transitional justice institutions. The field of transitional justice, like the field of international law, is and always has been a male-dominated space as a consequence of both the overwhelming presence of men as decision-makers, leaders, and agents as well as a male-centric manifestation of laws, doctrines, norms, precedents, and guidelines. In other words, men have not only been the “movers and shakers” in transitional justice processes but, typically, they have also been the majority of beneficiaries. For example, in the post-conflict stage, when agreements are reached between conflicting parties and negotiations are held related to demobilization, disarmament, and reintegration or amnesty for human rights abuses, there have been very few instances until the mid-1990s where women’s experiences and needs were factored into those conversations.

The need to promote gender equality and to elevate women, who have been historically marginalized, in efforts of transitional justice has grown in tandem with the “women’s rights as human rights” framework that gained significant momentum in the 1990s. As such, gendering transitional justice has begun to occupy a growing space in academic debates and political consciousness in the last 20 years. And yet, women and their voices still remain a largely peripheral consideration even in the 21st century. In both the design and implementation of specific initiatives in transitional and post-conflict societies, women and their perspectives remain underrepresented. This fact is inseparable from broader trends of gender inequality vis-à-vis peace and conflict, including but not limited to the continued stark underrepresentation of women in peace negotiations, post-conflict statebuilding, and judicial reform. Moreover, the experiences of women during violent conflict and sociopolitical upheaval, many of which are distinctly dissimilar to the experiences of men, tend to remain excluded from public discourse and national memory. How a society responds to questions of grave human rights violations, historical injustices, and the material and symbolic costs of war can be insufficiently gender sensitive and as such exclusive instead of inclusive.

Gendering transitional justice should be understood as the determination, acknowledgment, and addressing of unequal gender perspectives. Gender, as a social construct, is the categorization that distinguishes men from women and through this categorization shapes the roles, wellbeing, and influence of each group’s members. Gender is a universal form of distinction but the degree of inequalities varies by context. Nevertheless, gender inequality, generally, encompasses the widespread and historical hierarchical positioning of men as superior to women in their perspectives, actions, and potential (Buckley-Zistel and Stanley, 2012; Valji, 2009; Askin, 2003). Moreover, gender differences tend to overlap with and are shaped by other identity lines such as race, ethnicity, economic status, geographic location, and even physical ability.

Mainstreaming gender refers to the acknowledgment, addressing, and inclusion of both men and women into any process, institution, or endeavor, within and beyond the field of transitional justice. Gender mainstreaming should not be interpreted as an excuse to bundle gender-based violations into general categories of harms suffered. This risks rendering the whole concept of gender insignificant in the debate and exposing only an incomplete and distorted account of the country’s past.¹ Incorporating both men and women’s voices, irrespective of economic status, political affiliation, ethnicity, or religious beliefs, is ultimately about giving credit where credit is due. At the same time, listening to the needs of men and not dismissing their demands for psychological care as weakness is also integral to transitional justice because men have to feel that their suffering is worthy of acknowledgment from fellow citizens and the government. The need for gender mainstreaming in transitional justice is part and parcel of a larger struggle to introduce gender sensitivity to the current international human rights regime.

The scope of this book is primarily concerned with the roles and experiences of women. It is important to reiterate that gender and women are not synonyms, they are not interchangeable, and the focus of this book on women is not a reflection of the two terms being conflated. On the contrary, the distinction is duly noted and appreciated. Although it is important to understand what is meant by gender mainstreaming, the scope of this study does not allow equal attention to the experiences of both men and women. T...