An Introduction to

Transitional Justice

The Second Edition of An Introduction to Transitional Justice provides a

comprehensive overview of transitional justice judicial and non-judicial measures
implemented by societies to redress legacies of massive human rights abuse.
Written by some of the leading experts in the field, it takes a broad, interdisciplinary
approach to the subject, addressing the dominant transitional justice mechanisms
as well as key themes and challenges faced by scholars and practitioners.
Using a wide historic and geographic range of case studies to illustrate key
concepts and debates, and featuring discussion questions and suggestions for
further reading, this is an essential introduction to the subject for students.

Olivera Simić is Associate Professor at Griffith Law School, Australia.

 An Introduction to
Transitional Justice
SECOND EDITION

Edited by Olivera Simić

Second edition published 2021
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge
52 Vanderbilt Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2021 selection and editorial matter, Olivera Simić; individual chapters, the
contributors

The right of Olivera Simić to be identified as the author of the editorial

material, and of the authors for their individual chapters, has been asserted
in accordance with sections 77 and 78 of the Copyright, Designs and Patents
Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or

utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from
the publishers.

Trademark notice: Product or corporate names may be trademarks or

registered trademarks, and are used only for identification and explanation
without intent to infringe.

First edition published by Routledge 2017

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Names: Simić, Olivera, editor.
Title: An introduction to transitional justice / edited by Olivera Simić.
Description: 2nd edition. | Milton Park, Abingdon, Oxon ; New York, NY :
Routledge, 2020. | Includes bibliographical references and index. |
Identifiers: LCCN 2020015104 | ISBN 9780367893668 (paperback) |
ISBN 9781003021414 (ebook)
Subjects: LCSH: Transitional justice—History. | Transitional justice—
Methodology. | Reconciliation—Political aspects. | Reparation
(Criminal justice)
Classification: LCC K5250 .I587 2020 | DDC 340/.115—dc23
LC record available at https://lccn.loc.gov/2020015104

ISBN: 978-0-367-53275-8 (hbk)

ISBN: 978-0-367-89366-8 (pbk)
ISBN: 978-1-003-02141-4 (ebk)

Typeset in Times New Roman

by Apex CoVantage, LLC
Contents

Notes on contributors xi
Preface to the Second Edition xvii

1 An introduction to transitional justice 1

ANJA MIHR

1.1 Definition 1
1.2 Transitional justice measures 4
1.3 State of the art 7
1.4 Balancing transitional justice measures
and Realpolitik 10
1.5 Regional differences 13
1.6 Effect and impact of transitional justice 14
1.7 Transitional justice in transition and
transformation periods 20
1.8 Theory of transitional justice 21
1.9 Ways ahead for transitional justice 22
1.10 Discussion and tutorial questions 24

2 The development of transitional justice 29

ANDREW G REITER

2.1 Introduction 29
2.2 The historical roots of transitional justice 30
2.3 The Nuremberg Trials 31
2.4 Transitional justice in the third wave 32
2.5 A new era of international justice 35
2.6 The International Criminal Court 37
2.7 The justice cascade and universal jurisdiction 39
2.8 The permanency of transitional justice 41
2.9 Summary 43
2.10 Discussion and tutorial questions 44

3 International criminal justice 49

RACHEL KERR

3.1 Introduction 49
3.2 Definition 50
vi COnTEnTS

3.3 Brief overview 51

3.4 Aims and objectives 56
3.5 Points of contention and controversy 59
3.6 Current position 66
3.7 Summary and conclusion 68
3.8 Discussion and tutorial questions 68

4 Gender and transitional justice 73

ANNIKA BJÖRKDAHL AND JOHANNA MANNERGREN SELIMOVIC

4.1 Introduction 73
4.2 A gender perspective on transitional justice 74
4.3 Overview: accomplishments and shortcomings 76
4.4 Identifying gender-just gaps and points of contention 83
4.5 Conclusion 91
4.6 Summary 92
4.7 Discussion and tutorial questions 92

5 Truth and reconciliation commissions 97

AGATA FIJALKOWSKI

5.1 Definition and key components (truth/

reconciliation/commission) 97
5.2 Brief historical overview 98
5.3 Purpose 101
5.4 Points of contention and controversy 105
5.5 Key examples from Europe and Africa 108
5.6 Summary 116
5.7 Discussion and tutorial questions 117

6 Amnesty 123
AGATA FIJALKOWSKI

6.1 Introduction 123

6.2 Definition 126
6.3 Brief historical overview 127
6.4 Purpose 128
6.5 Points of contention and controversy 129
6.6 Amnesty laws 130
6.7 Examples of amnesty laws across the world 134
6.8 Current positions 140
6.9 Summary 142
6.10 Discussion and tutorial questions 143

7 Lustration and vetting 149

LAVINIA STAN

7.1 Introduction 149

7.2 Definition of lustration and vetting 149
 COnTEnTS vii

7.3 Brief historical overview 151

7.4 Purpose: why countries opt for lustration and vetting 154
7.5 Points of contention and controversy 156
7.6 Current position 163
7.7 Conclusion 164
7.8 Summary 165
7.9 Discussion and tutorial questions 165

8 Local transitional justice: customary law, healing rituals, and

everyday justice 169
LARS WALDORF

8.1 Introduction 169

8.2 Definitions 171
8.3 Historical overview 173
8.4 Aims of local transitional justice 177
8.5 Controversy 179
8.6 Current positions 184
8.7 Conclusion 185
8.8 Summary 186
8.9 Discussion and tutorial questions 187

9 Reparations 193
JEMIMA GARCÍA-GODOS

9.1 Introduction 193

9.2 Definitions 194
9.3 Brief historical overview 198
9.4 Implementing reparations programs: points of
contention and controversy 203
9.5 Acknowledging the need for reparations 203
9.6 Defining target groups: victims and beneficiaries 204
9.7 Choosing the types of reparation 206
9.8 Operational and institutional design 207
9.9 Current debate: can reparations be transformative? 208
9.10 Conclusion 210
9.11 Summary 210
9.12 Discussion and tutorial questions 214

10 Transitional justice and peacebuilding 219

LIA KENT

10.1 Introduction and definitions 219

10.2 Historical overview: the evolution of peacebuilding
and transitional justice 220
10.3 Purpose, aims, and assumptions 222
10.4 Points of contention and controversy 223
10.5 Current positions 233
viii COnTEnTS

10.6 Short summary 236

10.7 Discussion and tutorial questions 236

11 Arts and transitional justice 241

OLIVERA SIMIĆ

11.1 Introduction 241

11.2 Defining arts in transitional justice and its purpose 242
11.3 Documentary theatre: using authentic testimonies
and sources 245
11.4 Photo exhibitions 253
11.5 Points of debate and controversy 259
11.6 Summary 261
11.7 Discussion and tutorial questions 262

12 Memorials and transitional justice 269

SUSANNE BUCKLEY-ZISTEL AND ANNIKA BJÖRKDAHL

12.1 Introduction 269

12.2 Key concepts, definitions, and approach 270
12.3 Overview 272
12.4 Conclusion 283
12.5 Summary 285
12.6 Discussion and tutorial questions 286

13 Measuring the success (or failure) of transitional justice 291

ANDREW G REITER

13.1 Introduction 291

13.2 How do we know if transitional justice works? 292
13.3 The micro or individual level: recognition, reparation,
and reconciliation 294
13.4 The meso or institutional level: justice, truth, and reform 297
13.5 The macro or national level: peace, democracy,
and human rights 300
13.6 Is doing something better than doing nothing? 305
13.7 Summary 306
13.8 Discussion and tutorial questions 307

14 Expanding transitional justice 311

LARS WALDORF

14.1 Introduction 311

14.2 Background 312
14.3 Expanding transitional justice 314
14.4 Transformative justice 321
14.5 Ongoing controversies 323
14.6 Summary 327
14.7 Discussion and tutorial questions 327
 COnTEnTS ix

15 Doing the fieldwork: well-being of transitional justice researchers 333

OLIVERA SIMIĆ

15.1 Introduction 333

15.2 Difficulties of researching violence and its effects
on emotional well-being 335
15.3 ‘Covering up’ our emotions 341
15.4 Researching in transitional justice contexts 343
15.5 Why should our stories matter? 345
15.6 Conclusion 347
15.7 Discussion and tutorial questions 347

Index 353
notes on contributors

Annika Björkdahl is Professor of Political Science at Lund University, Swe-

den. Her current research includes peace-building with a particular focus on
urban peace-building, and gender and transitional justice as well as inter-
national norms in the field of International Relations. Among her recent
publications is the co-authored Peacebuilding and Spatial Transformation.
Peace, Space and Place (Routledge, 2017), co-edited Spatializing Peace and
Conflict (2016), Peacebuilding and Friction: Global and Local Encounters
in Post-Conflict Societies (Routledge, 2016), Divided Cities: Governing
Diversity (2015) and she has published articles in journals such as Security
Dialogue, Millennium, Peace and Change, Human Rights Review, and Third
World Quarterly.
Susanne Buckley-Zistel is Professor for Peace Conflict Studies and Director of
the Center for Conflict Studies, Philipps University Marburg, Germany. She
was Senior Fellow at the Käte Hamburger Kolleg for Global Cooperation
Research at the University of Duisburg-Essen as well as guest researcher at
the Research Cluster Governance in Areas of Limited Statehood at the Free
University Berlin. Her research focuses on issues pertaining to peace and con-
flict, violence, gender, and transitional justice. She has co-edited a number
of volumes, including Memorials in Times of Transition (2014), Transitional
Justice Theories (Routledge, 2014), Gender in Transitional Justice (2012),
Spatializing Peace and Conflict (2018), Gender, Violence, Refugees (2017)
and Perpetrators and Perpetration of Mass Violence: Action, Motivations, and
Dynamics (Routledge, 2018).
Agata Fijalkowski is Reader at Leeds Law School, Leeds Beckett University,
UK. Agata’s research is interdisciplinary. Her main areas of specialisation
are transitional justice, law and visual culture, and war crimes trials. Agata
has written extensively about judiciaries in post-Communist Europe, nota-
bly From Old Times to New Europe (Ashgate, 2010). Agata has published
widely in the area of transitional justice, including the co-edited volume
Transitional Criminal Justice in Post-Dictatorial and Post-Conflict Societ-
ies (2015). She is concerned with the (mal)administration of justice in for-
mer Communist states, in the immediate post-World War II period, and the
xii nOTES On COnTRIbuTORS

visual images records of proceedings. Agata has vast experience in carrying

out archival work, supported by various funders, in Albania, Germany, Poland,
Romania and the UK. Agata’s current research is on the legal team behind the
Polish war crimes trials.
Jemima García-Godos (Dr. Polit.) is Associate Professor in Human Geogra-
phy at the Department of Sociology and Human Geography, University of
Oslo, Norway. Her broad research interest is in state–society relations in
post-conflict societies. Her research on transitional justice focuses on vic-
tims’ rights, victim reparations, reparations programs, and land restitution,
particularly in Latin America, with emphasis on Peru, Colombia, and Guate-
mala. Her research has been published in the International Journal of Tran-
sitional Justice, Journal of Latin American Studies, Journal of Human Rights
Practice, Human Rights Review, Nordic Journal of Human Rights, and vari-
ous anthologies. She is co-editor of Transitional Justice and Peacebuilding
on the Ground: Victims and Ex-Combatants (Routledge, 2013) and Transi-
tional Justice in Latin America: The Uneven Road from Impunity towards
Accountability (Routledge, 2016), and was guest editor of the Nordic Journal
of Human Rights Special Issue on Land Restitution in Transitional Justice
(2010).
Lia Kent is a visiting fellow at the Australian National University’s (ANU) Reg-
Net School of Regulation and Global Governance. Prior to joining RegNet, she
was Research Fellow at ANU’s State, Society and Governance in Melanesia
(SSGM) program. With a background in sociolegal studies, she has research
interests in the areas of transitional justice, the politics of memory, peacebuild-
ing, and gender justice. Her work has a geographic focus on the Asia-Pacific
region, including Timor-Leste and Aceh. Lia is the author of The Dynamics of
Transitional Justice: International Models and Local Realities in East Timor
(Routledge, 2012) and numerous articles in journals, including the Interna-
tional Journal of Transitional Justice, Human Rights Quarterly, and the Inter-
national Feminist Journal of Politics. Her current research project focuses
on how local communities in Timor-Leste and Aceh are remembering their
respective experiences of conflict.
Rachel Kerr is Reader in International Relations and Contemporary War in
the Department of War Studies at King’s College London (KCL), UK. Her
research interests are in the area of law and war, in particular war crimes and
transitional/post-conflict justice, and she co-directs the War Crimes Research
Group at KCL. Her books include The International Criminal Tribunal for the
Former Yugoslavia: Law, Diplomacy and Politics (2004); Peace and Justice:
Seeking Accountability after War (with Eirin Mobekk; 2007), The Military on
 nOTES On COnTRIbuTORS xiii

Trial: The British Army in Iraq (2008), and Prosecuting War Crimes: Lessons
and Legacies of 20 Years of the International Criminal Tribunal for the Former
Yugoslavia (Routledge, 2013), co-edited with James Gow and Zoran Pajic. Her
most recent projects have focused on the role of visual evidence in legal and
ethical challenges of technological and scientific innovations and nonobvious
warfare, and art and reconciliation. In 2009–2010, Dr Kerr was a fellow at the
Woodrow Wilson International Center for Scholars in Washington, D.C., and
in 2011–2013 she was a Visiting Research Associate at the Centre for Interna-
tional Policy Studies, University of Ottawa, Canada. She is a Co-Chair of the
London Transitional Justice Network.
Anja Mihr is Professor for Human Rights, Governance and Public Policy at the
OSCE Academy in Bishkek, Kyrgyzstan. She previously held the Franz Haniel
Chair of Public Policy at the University of Erfurt, Germany, and was Associate
Professor at the Netherlands Institute of Human Rights, University of Utrecht,
Netherlands. She is Founder and Program Director of the HUMBOLDT-
VIADRINA Center on Governance through Human Rights, Berlin, Germany.
Mihr has been Head of the Rule of Law department at The Hague Institute for
Global Justice and carried out a number of Visiting Professorships for Human
Rights, including Peking University Law School, China, and the Raoul Wal-
lenberg Research Institute on Human Rights, Lund University, Sweden. She
was the European Program Director for the European Master’s Programme in
Human Rights and Democratisation at the European Inter-University Center
for Human Rights, in Venice, Italy. She received her Ph.D. in Political Sciences
from the Free University in Berlin, Germany, in 2001. Mihr has published a
number of books and articles on international human rights regimes, human
rights education, transitional justice, the European human rights system, and
non-state actors.
Andrew G Reiter is Associate Professor of Politics and International Rela-
tions at Mount Holyoke College, USA, where his teaching and research
focus on conflict resolution, post-conflict peacebuilding, and transitional jus-
tice. He has published widely on these topics and is the author of Fighting
Over Peace: Spoilers, Peace Agreements, and the Strategic Use of Violence
(2016) and co-author of Transitional Justice in Balance: Comparing Pro-
cesses, Weighing Efficacy (2010). Reiter is co-founder of the Transitional
Justice Database and a member of the Transitional Justice Research Collab-
orative, projects that have developed global datasets of transitional justice
mechanisms.
Johanna Mannergren Selimovic is Associate Professor and Senior Researcher
at the Swedish Institute of International Affairs and holds a Ph.D. in Peace and
xiv nOTES On COnTRIbuTORS

Development Research from the University of Gothenburg, Sweden. Her

research is driven by a deep curiosity about the makings of ‘everyday peace’ in
deeply divided societies, specifically in relation to politics of memory, gender,
and discourses and practices of transitional justice. Theoretically she engages
with narrative theory and methodology. She grounds her work in close ethno-
graphic studies, with fieldwork in Bosnia-Herzegovina, Rwanda, and Jerusa-
lem. She currently heads two research projects on the connections between
memory politics and durable peace (www.peaceandmemory.net) and has pub-
lished her work in journals such as Political Psychology, Security Dialogue,
International Journal of Transitional Justice, Memory Studies, and Interna-
tional Feminist Journal of Politics. She is also co-editor of the Palgrave Ency-
clopedia of Peace and Conflict Studies.
Olivera Simić is Associate Professor at the Griffith Law School, Griffith Uni-
versity, Australia. Her research is in the field of transitional justice, interna-
tional law, gender, and crime. Olivera’s latest edited collection (with Barbora
Hola), ICTY Celebrities: War Criminals Coming Home was published by
International Criminal Justice Review in 2018. Her latest monograph Silent
Victims of Wartime Sexual Violence was published by Routledge in 2018.
Olivera is currently writing a monograph about the only woman prosecuted
before the International Criminal Tribunal for the Former Yugoslavia, Bil-
jana Plavšić.
Lavinia Stan is Jules Léger Research Chair and Professor of Political Science at
St. Francis Xavier University, Canada. A Comparative Politics specialist, she
has published mostly in the areas of democracy and democratization, with a
focus on post-Communist Eastern Europe. Her main areas of interest are tran-
sitional justice, and religion and politics. Stan is the author, co-author, editor, or
co-editor of 13 books, including Encyclopedia of Transitional Justice, Transi-
tional Justice in Post-Communist Romania, Post-Communist Transitional Justice
at 25, and Transitional Justice and the Former Soviet Union (2013, 2012, 2015
and 2018, respectively), as well as Religion and Politics in Post-Communist
Romania and Church, State and Democracy in the Expanding Europe (2007
and 2011, respectively). A former member of the Scientific Council of the
Institute for the Investigation of Communist Crimes in Romania and Chair of
the Wildavsky Award Committee of the American Political Science Associa-
tion, Stan served as President of the Society for Romanian Studies from 2014 to
2018, and has been Associate Editor for the peer-reviewed Women’s Studies
International Forum since 2009.
Lars Waldorf is Professor at Essex Law School, UK. He practiced as a civil
rights and poverty lawyer in the US for nine years. He then reported on geno-
cide trials at the International Criminal Tribunal for Rwanda (2001) and ran
 nOTES On COnTRIbuTORS xv

Human Rights Watch’s field office in Rwanda (2002–2004). He has authored

numerous publications on both transitional justice and Rwanda, including
three co-edited books: Remaking Rwanda: State Building and Human Rights
after Mass Violence (2011); Localizing Transitional Justice: Interventions and
Priorities after Mass Violence (2010) and Disarming the Past: Transitional
Justice and Ex-Combatants (2009). He also guest-edited a special issue of the
International Journal of Human Rights on ‘Legal Empowerment in Transi-
tions’ (2015). In 2017 and 2018, he was the Principal Investigator for a UK
Global Challenges Research Fund project on dance and legal empowerment
for persons with conflict-related disabilities in postwar Sri Lanka: https://per-
formingempowerment.wordpress.com/.
Preface to the Second Edition

Transitional justice is a relatively new field of scholarly inquiry, although its pro-
cesses and mechanisms are a few centuries old. Thinking about and researching
the ways in which communities, peoples, and states respond to mass human rights
violations was initially appropriated by lawyers and legal scholars, but the field
quickly attracted the interest of experts in other disciplines, such as anthropol-
ogy, psychology, politics, international relations, and peace and conflict studies.
Transitional justice has become an integral component of these intersecting fields,
which contribute, shape, influence, and sometimes present challenges to each
other. Over the past three decades, the discipline has grown into its own body of
literature and research, and scholars, practitioners, and policy makers have estab-
lished their unique approaches to studying and researching transitional justice.
The discipline has become an increasingly popular subject of teaching, too, in
undergraduate and postgraduate courses around the world.
Yet, despite the rapidly growing field, an introductory textbook in this field
that could serve as a fundamental teaching tool has been missing. An Introduction
to Transitional Justice seeks to fill this niche. We hope it will provide a useful
means for study, in particular for those seeking an understanding of the essential
concepts and mechanisms that are of importance in illustrating transitional justice
practices in different regions of the world. Now in its Second Edition, An Intro-
duction to Transitional Justice remains an authoritative textbook on transitional
justice for students worldwide.
The book remains the first introductory text for students, introducing them
to some of the core concepts and ideas set out in what I believe are foundational
chapters, giving students a platform from which to further explore and understand
more specific and narrow topics of inquiry.
We hope that students will continue to find this textbook valuable for their
studies and that it will bring to life a subject that at heart lies with the relationships
between victims and perpetrators and state/community. We also hope that once
the main concepts and ideas are grasped, and their practical effect is fully under-
stood, transitional justice will emerge to students as an intriguing and fascinating
subject to pursue further. Since the First Edition of this book was published, in
2016, there have been continual developments in transitional justice and this Sec-
ond Edition takes stock of important developments in the field.
xviii PREfACE TO ThE SECOnD EDITIOn

In preparing this edition, the authors have continued to draw upon their col-
lective experience in teaching and researching in the field over many years. A
feature of this Second Edition is the inclusion of a new chapter on expanding
transitional justice, reflecting the expanding of the field, so that it now covers a
wider range of violations, actors, and measures over a longer time period.
An Introduction to Transitional Justice is an essential resource for transitional
justice students. I am grateful to all the contributors for seeing the importance of
producing the Second Edition of a transitional justice textbook, and for accepting
without hesitation my invitation to write.
I would like to thank to the team at Routledge and the Routledge peer
reviewers for their enthusiasm and invitation to deliver the Second Edition of the
textbook.
Olivera Simić
Brisbane
June 2020
Chapter 1

An introduction to transitional
justice

Anja Mihr

1.1 Definition
Transitional Justice (TJ) is a concept and a process that encompasses a number
of different legal, political and cultural instruments and mechanisms that can
strengthen, weaken, enhance or accelerate processes of regime change and con-
solidation. TJ measures such as truth commissions, trials, memorials, compensa-
tions or amnesties can foster or hamper successful transition or reconciliation
processes and there is no automatic guarantee for a certain political or societal
outcome, because TJ measures can be politically instrumentalised, used or abused
and the process outcome depends on a variety of different actors involved. The
process as such is inter-generational and the measures are multiple.
The United Nations refers to TJ measures as a set of judicial and non-judicial
instruments and mechanisms such as trials, truth commissions, vetting and lustra-
tion procedures, memorials, reparations, restitutions or compensations, and even
amnesty and rehabilitation laws, that redress the legacies of massive human rights
abuses during war, occupation, dictatorships or other violent and suppressive con-
flicts and situations. These measures include criminal and political procedures and
actions as well as various kinds of institutional reforms such as security sector
reforms or constitution building. These measures aim to facilitate civil or political
initiatives during transition and transformation processes. In the hands of political
and civil actors, such initiatives can lead to reparations, legal, security sector or
institutional reforms. Whatever combination of measures is chosen by the gov-
ernment or by civil society actors during transition processes, they ought to be in
conformity with international human rights standards and obligations in order to
have any positive impact on democratic institution building.1

1 United Nations, ‘Guidance Note of the Secretary-General: United Nations Approach to Transi-
tional Justice’ (10 March 2010).
2 AnJA MIhR

Consequently, the field and the array of TJ measures and its actors are wide
and large. They can aim from asking private enterprise and companies to issue
apologies and compensations for enslaved workers during wartimes or disap-
peared labor unionists during the Apartheid regime in South Africa and during
military dictatorships in Latin America. Measures can include war criminals to be
tried by international, hybrid or national tribunals or local courts after an armed
conflict, war or genocide has ended. Victims of human rights abuse may receive
reparations or compensations according to the wrongdoings they had to endure
during suppression, war or dictatorships. Memorials, for example, are erected
to acknowledge these wrongdoings and atrocities and to serve as a warning to
future generations. Lustration and vetting procedures aim to shed light on who
was responsible to what extent during times of injustice and suppression. Thus,
TJ measures are multiple and range from memorials to trials, from apologies to
amnesty laws, but, nevertheless, serve the same purpose. Governments and civil
actors use them to delegitimise the past regime and to legitimise the new, ideally
democratic, regime, and thus TJ measures only trigger reforms and change to the
extent to which the actors involved want them to affect, for example, institutional
reforms during transition and transformation periods.
TJ measures can be divided into different categories: procedural, interper-
sonal and informational justice measures, such as trials, truth commissions,
reconciliation programs, vetting, lustration, security sector reforms, apologies,
reparations, compensations, memorials and many different types of dealing
with the past. They are aiming to lead to distributive and restorative justice
(often referred to as establishing the rule of law).2 Justice is meant in an insti-
tutional sense to build up (democratic) institutions for the future, based on the
(bad) experience of the past, and less so in philosophical terms. Overall, TJ
measures aim to prevent society and its institutions, such as political regimes,
from repeating the wrongdoings of the past that led to suppression, war or per-
sonal losses and grievances.
Nevertheless, TJ is more forward than backward-looking, and this process
has become a driver for regime consolidation in both post-conflict and transition
countries. The whole process aims to demystify and delegitimise the past and
legitimise and strengthen the future and present political or societal structures or
regime. TJ can – but does not automatically have to – contribute to (re-)building
trust in institutions and among divided societies, former combatants, enemies or
ethnic, linguistic or religious groups. Some mechanisms aim to reconcile soci-
eties and their former opposing parties, others focus more on building trust in

2 Hague Institute for the Internationalisation of Law, Tilburg University and Utrecht University,
Measuring Access to Justice in a Globalising World: Final Report (2010).
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 3

institutions, and others again seek to acknowledge and remember past injustice
through memorials, compensations or apologies.
In analytical terms, TJ measures aim at dealing with an unjust or atrocious
past in order to delegitimise its responsible leadership (on all levels) and politi-
cal system, and at the same time these measures aim to re-establish and legiti-
mise a new political and, hopefully, better – but certainly different – regime.3
TJ measures can affect both autocratic and democratic regime change and con-
solidation, depending on how inclusive and exclusive they are, and by what
political intentions these measures are applied by policymakers and society. The
example of reparations, apologies, lustrations, trials or commissions of inquiry
used by Australian, Canadian, Japanese or German governments over the past
decades have proved that TJ is multifunctional and aims to find effective ways
of dealing with an unjust past even though these events were decades ago. The
purpose here is to increase and leverage civic and political trust in people’s
institutions and society.
The way TJ measures contribute to change and consolidation is best illus-
trated through a mutual reinforcing process between the different measures and
the institutions they aim to build or strengthen, such as commissions of inquiry,
memorials, lustration, security sectors reforms, amnesties or trials, and their con-
tribution to building trust in political institutions, such as courts, parliaments,
municipalities, public administration, educational systems or security forces.
This mutual reinforcement between measures and institutions can strengthen
democratic institution building by enhancing the quality and thus effectiveness of
(democratic) institutions, but it can also strengthen a regime that turns out to be
autocratic or dictatorial. The main difference between the two ways is that the first
is an inclusive TJ process and the second an exclusive one.
An inclusive TJ process aims to include all parties or members that were
involved in the previous conflict or dictatorship, be they victims, bystanders or
perpetrators, regardless of their political or social status and religious or ethnic
background. This process allows blame and responsibilities to be put on all sides,
not just on those who lost the preceding war or the violent conflict. With this
inclusive process, the new political regime in place also illustrates that it aims to
make politics different and more democratic than the previous regime. Such an
approach also delegitimises the previous regime, which usually was a discrimi-
natory and exclusive one. In contrast to this, the exclusive TJ process usually
selects victims and perpetrators, that is to say those whom the current govern-
ment portrays as victimisers in the previous regime and thus enemies of the cur-
rent political justice. This is winner’s justice. Although it is hardly ever possible

3 Ruti G Teitel, Globalizing Transitional Justice (Oxford University Press, 2014).

4 AnJA MIhR

to be fully inclusive because often victims and perpetrators cannot or do not want
to cooperate, it is important to keep the door open for future generations who
might want to talk to one another even though their parents and grandparents had
been opposing parties or victims and victimisers. Generally speaking, there is
no fully fledged inclusive or exclusive TJ process in this world; however, some
governments have leaned more to inclusiveness, others more to exclusiveness,
which made the difference on how TJ contributed to stabilise and consolidate
new political regimes.

1.2 Transitional justice measures

TJ measures thus range from the simple acknowledgement by political actors of
previous wrongdoings; that is, through history or truth commissions, apologies
or the establishment of memorials and memorial days. Additionally, acknowl-
edgement can be carried out though initiating and responding to public debates,
producing films and documentaries, publishing literature or novels about the past,
introducing past wrongdoings and historical facts in school textbooks, conducting
scientific research and allowing researchers access to archives, media involvement
and naming victims and alleged perpetrators. The outcomes of such activities can
be novels, films, blogs, social networks, YouTube clips or any civil society initia-
tive for certain actions.
Different from acknowledgement, restorative measures can be sum-
marised as acts that involve reparation, restitution, rehabilitation or compen-
sation for victims of expropriation, eviction, imprisonment or illegal killings.
Its advantage is that it can be easily assessed through qualitative data and
has, therefore, been the subject of intensive investigation in numerous case
studies. Alongside substantive and financial compensation or restoration,
it includes ways and means of establishing working relationships between
former combatants in public institutions, such as via quota systems, recon-
ciliation and reintegration programmes to political prisoners of the former
regime, restoring and maintaining memorials, or the public exhumation of
mass graves. Although restorative measures such as compensation have been
proven to be very effective in terms of victim satisfaction, they are only one
part of TJ measures. These measures have to be connected to a larger profile
of TJ that acknowledges and quantifies the personal loss of lives or years of
living under suppression. Otherwise, restorative measures would lose mean-
ing for future generations. For example, Rule 150 of the Hague Convention
from 1907 and the Protocols on Reparations from 1929 have become custom-
ary international law and is applicable to all countries and societies. It implies
that the responsible state is obliged to make full reparations for the injury
caused by the internationally recognised wrongful act; once again, a measure
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 5

focusing on victims.4 The restoration of Armenian churches in Turkey, Bud-

dhist temples in Cambodia or synagogues in Germany after war and genocide
can be directly linked to the Hague Convention and Protocols added in 1949
by the Geneva Conventions and state obligations to restore and acknowledge
past wrongdoings.
Nevertheless, most prominent in the TJ debate are criminal justice measures
such as trials, tribunals or vetting procedures according to international instru-
ments, mostly enshrined in human rights, public, criminal or humanitarian law.
Criminal justice focuses on perpetrators, and so do vetting measures or lustration
policies of civil servants and public officers. International norms and instruments,
such as international human rights covenants and treaties, help to lay down the
legal framework to establish tribunals and a new national court system aiming to
establish the rule of law in a country. So, generally, does the judiciary dealing with
cases of the past. Criminal justice also aims to combat impunity, to establish and
reform security and to condemn or probe perpetrators of the former regime. The
International Criminal Court (ICC) and the Rome Statute of 1998 have added sig-
nificantly to this concept, emphasising individual accountability as equal to state
accountability with respect to past injustices. In this context, retributive justice
is defined by the retroactive clause: perpetrators should be charged only under
the laws of the past regime, unless they commit crimes against humanity, such as
genocide, systematic rape or torture.
Surprisingly or not, silencing the past through de facto amnesty laws or so-
called rehabilitation laws are the most common measures that governments in
transition apply to deal with the past. They are among the most disputed ones,
too. These TJ measures include amnesty laws or informal ‘silence pacts’; that
is, agreements among old and new political elites and governments, shortly
before and after transition takes place, not to prosecute warlords, paramilitaries,
the military or policy makers for the foreseeable time, as was the case in post-
authoritarian Argentina or post-Franco Spain in the 1970s and 1980s. They also
include reintegration and rehabilitation measures, laws and actions to fully or
partly pardon, reeducate and reintegrate victimisers in the state sector, in particu-
lar in the security sector and public administration.
Most amnesty laws that are issued after a regime change include the release
of all political prisoners, thus emptying the prisons of the previous regime, includ-
ing all those who were either against or somewhat collaborating with the previous

4 International Committee of the Red Cross, Geneva Convention for the Amelioration of the Condi-
tion of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August
1949, 75 UNTS 31 (entered into force 21 October 1950) ‘Article 51’; UN Educational, Scientific
and Cultural Organisation (UNESCO), Convention for the Protection of Cultural Property in the
Event of Armed Conflict, 14 May 1954, ‘Article 38’.
6 AnJA MIhR

Categories of transitional justice measures (samples)

Acknowledgement Restoration Criminal justice Amnesties

History commissions Reparation Application of Blanket or

international conditional
human rights and amnesties
humanitarian law

Truth commissions Restitution Criminal justice Silence pacts

Apologies Compensation for Tribunals and ad Rehabilitation

past injustice hoc tribunals programs

Memorials Quota and Trials

affirmative action

Public debates Restoration of Security system

historical sites reform

Film Exhumation of Condemnation or

mass graves probation

Literature Vetting and

lustrations

Schoolbooks

Scientific research
open archives

Media involvement

Symbolic naming
of victims and
perpetrators

regime. For example, the Spanish amnesty laws of 1977, during the post-Franco
regime, exempted all those who had been politically active before the regime
change, including Franquistas, and thus protected the old Franco elite from facing
litigation. In the 1980s in many Latin American countries in transition, former
military elites ‘issued themselves’ extensive amnesty laws prior to passing power
to a new civil and democratic government, in order not to be held accountable
for their past wrongdoings. Amnesty laws are sometimes issued through informal
agreements or national legislation and are therefore not immediately regarded as
impunity measures. Amnesties imply that perpetrators surrender and may be seen
as having committed crimes of some sort without (yet) having been punished.
It also allows perpetrators to testify in front of truth commissions or other com-
missions of inquiry without fearing long-term prison sentences. Other ways of
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 7

issuing de facto amnesties are ‘reintegration’ and ‘rehabilitation’ laws, such as in

post-war Germany after 1949 and in many post-communist countries in Central
and Eastern Europe after 1990, to reintegrate or rehabilitate, for example, lawyers
and technocrats of the previous regime, by reinstating them in the new offices
with new titles.
Effects of these TJ measures are inter-generational and show their positive or
negative effect only 20 or more years after a transition process has started – that
is to say, when the first post-conflict/war/dictatorial generation enters into leader-
ship positions. One generation after the TJ process has started generally marks a
turning point, therefore. This new generation of (democratically) trained adminis-
trators and technocrats replaces the former judges, politicians or military and the
civil society is strong enough to support the new democratic regime and its val-
ues. It does not come as a surprise that in post-war and post-autocratic countries,
after approximately 25 years, a new generation goes into the streets, or makes
social media claims for more transparency about past abuses and atrocities and
for more democracy. They are those who take no individual responsibility for past
wrongdoings but claim it for those who still carry and hide it. Where these move-
ments become violent or get suppressed, political regimes usually do not enjoy
a significant replacement of old elites, and, after some time, often remain fragile
and turn back to their authoritarian rules and values, such as seen in most post-
Soviet republics, Hungary, Bangladesh, Brazil, Rwanda and Venezuela. Common
to the authoritarian regime building is that they opted for an exclusive TJ process
during most of their transition time after dictatorship, genocide or military coups.
Instead, in the early years of transition up to ten years, TJ measures are mainly
used by political actors for tactical reasons, such as to make concessions to inter-
national donors, to victim groups or as part of foreign policy.5 Only after more
than 20 years, with a new generation entering the political and technocratic arena,
do these societies reach the level of becoming morally capable to empathetically
face their past and use the past as a constant reminder to legitimise the new and
different political regime.

1.3 State of the art

The term ‘transitional justice’was coined in the 1980s and 1990s with the first truth
and reconciliation commissions during the democratisation processes in Latin
America and later by the vetting and lustration procedures, trials and reparation

5 Nicole Deitelhoff and Klaus Dieter Wolff, ‘Business and Human Rights: How Corporate Norm
Violators Become Norm Entrepreneurs’ in Thomas Risse, Stephen C Ropp, and Kathryn Sikkink
(eds), The Persisting Power of Human Rights, From Commitment to Compliance (Cambridge
University Press, 2013) 227.
8 AnJA MIhR

policies that were issued in Eastern Europe, the Balkans and sub-Saharan Africa.6
Over the past few decades, the concept of TJ has undergone dramatic changes in
its definition and spectrum. The term first connotated the transition process in the
early 1980s at the time of the Latin American transition process, in particular in
Chile and Argentina, later the war in Yugoslavia and the end of Apartheid in South
Africa, after the genocide in Rwanda and the collapse of the Soviet Union and its
satellite states in the 1990s.
With the establishment of the International Criminal Tribunal to the Former
Yugoslavia (ICTY) in 1992–1993 and later the International Criminal Tribunal
for Rwanda (ICTR) in 1994, the legal basis for international jurisdiction became
prominent in the transition debate, and it has since dominated the discourse. The
international community, development agencies, United Nations, African Union,
the Organization for American States and European Union institutions tried to
look for ways to guarantee peaceful means to transition from autocracy and vio-
lence to peace and democracy or to stabilise existing regimes. International or
hybrid tribunals were issued and supported by these international organisations,
and seen as one way ahead to introduce international law and standards into the TJ
process later in Sierra Leone and Cambodia. During the developments of the early
1990s, that reference was made to the post-war Nuremberg Trials and an attempt
was made to create similar tribunals for other post-conflict societies. These tri-
als intended to shift arbitrary justice to civil justice based on human rights and
humanitarian law using international jurisdiction and the international treaty-
based human rights framework. Interestingly enough, the Tokyo War Crimes
Tribunals (1946–1948) on war crimes by Japan have often been criticised as a
negative example for TJ, although they had significant effect on the Japanese
post-war democratisation process in the 1950s and on universal jurisdiction as it
stands today. Instead, the focus on Nuremberg as a positive example also wrongly
leads to the assumption that the Tokyo trials had little effect on democracy or
regime change, which is not the case. Both trials had different effects on the rees-
tablishment of the legal and political regime and, moreover, on the judicial sys-
tems in Japan and West Germany. However, they were just one part of the legacy
and contribution to the bigger picture of TJ and regime consolidation today.
With the end of the Apartheid regime in South Africa, in the early 1990s, and
with the massive transition processes in Eastern Europe, the wars in the Balkans
and the Rwanda Genocide in 1994, the demand for more TJ mechanisms emerged –
assuming that trials and commissions of inquiry alone would prevent perpetra-
tors from committing mass atrocities or at least punish those who had done so.

6 Paige Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional
Justice’ (2009) 31 Human Rights Quarterly 321.
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 9

Nevertheless, it soon became evident that there is more to TJ than punishing per-
petrators, compensating victims and expelling public servants from their posi-
tions. The Rome Statute for the International Criminal Court (ICC) in 1999 was
a result of these developments. It has set legal standards for criminal justice and
reparation procedures in response to massive human rights violations and crimes
against humanity. Since about 2000, the Rome Statute and the subsequent UN
guidelines for TJ dramatically influenced the scope of TJ as we know it today.
In 2006 and during the subsequent years, the UN passed a set of general
guidelines on TJ, and in 2009, the UN General Assembly called for the ‘Interna-
tional Year of Reconciliation’, with the aim of calling upon all countries, democ-
racies and those in transition to democracy (which is the majority), to contribute
to peaceful and stable transitions and transformations through TJ measures.7 To
name but a few non-governmental organisations (NGOs) and actors in this field:
the German International Development and Cooperation Agency (GIZ), USAID,
the International Center for Transitional Justice (ICTJ), Open Society Institute
and Africa Trust all support TJ across borders. Thousands of other agencies,
NGOs or civil society (CS) groups, victims organizations and international TJ
working groups followed the example and established advisory bodies to consult
private and public agents of TJ on the pathways to justice – although with dif-
ferent outcomes and effects. In some cases, these transformations happen sud-
denly; in others, they may take place over many decades, even after democracies
have been more or less consolidated.8 Today, efforts for and in TJ are often con-
nected to Goal 16, ‘Peace, Justice and Strong Institutions’, of the UN Sustainable
Development Goals (SDG), also called Agenda 2030, launched in 2015 by all
UN member states.9 Goal 16 maps out measures, instruments and mechanisms, as
well as different levels of collaboration between CS, international and domestic
organizations and authories as well as private business, in order to deal with past
wrongdoing and (re-)build democratic and consolidated political regimes.
The concept of TJ has, since its establishment, reached out to powerful inter-
national allies. Many international organisations such as the UN, later the Euro-
pean Union (EU), the Organization for American States (OAS), the African Union
(AU) and the World Bank published reports, among them in 2011 the first World
Development Report on Conflict, Security and Development, which included
a clear link between TJ and societal and democratic development.10 It supports

7 United Nations, Addendum 61st Session of the United Nations General Assembly, UN Doc
A/61/L.22/Add.1 (20 November 2006).
8 International Center for Transitional Justice, Home Page (2015) ICJT <www.ictj.org>.
9 UN Sustainable Development Goals, Goal 16, ‘Peace, Justice and Strong Institutions’ (2015)
<https://sustainabledevelopment.un.org/>.
10 Pablo de Greiff, ‘Transitional Justice, Security, and Development’ (Security and Justice Thematic
Paper, World Bank, 2010).
10 AnJA MIhR

many TJ projects and measures in emerging democracies. National development

agencies are pivotal partners in this process as they finance commissions, tribu-
nals, institutional reforms and memorials around the world. International NGOs,
often led by diaspora, or victims of one’s country, present reports or initiate public
debates. They intend to lead to more public awareness and consciousness about
the wrongdoings of the past. This shapes the political culture in a country to be
more self-reflective and self-critical, thus more open for pluralism and democratic
compromises and less tolerant to radical and dictatorial movements.

1.4 balancing transitional justice

measures and Realpolitik
Any TJ process is about balancing the demand for truth and justice on the one
side and the demand for adequate condemnation of perpetrators on the other side.
Realpolitik is often at odds with TJ measures and, in particular, the claims of vic-
tims who seek justice rather than rule of law. However, TJ never attains justice in
a philosophical or ethical sense. Rather, it attains justice in an institutional sense
by increasing or leveraging trust in public institutions. In doing so, TJ strengthens
the rule of law in any given country. Realpolitik means real day-to-day politics
and decision-making by policy makers and their daily concerns. Whereas TJ is
a concept and a process with medium to long-term impact, Realpolitik are the
politics and policy making of everyday life. When using TJ measures as politi-
cal tools to trigger regime change and consolidations, executive and legislative
powers believe that responding to victims or victimisers’ claims and demands,
commissions, trials, memorials or vetting procedures will be directly relevant to
the current political changes.11 When Ruti Teitel12 and Priscilla Hayner13 anal-
ysed (separately) transition periods in the 1980s and 1990s in Africa and Latin
America, they came to the conclusion that TJ processes may have relevance for
social and political stability in the countries and thus become the foundations to
strengthen political and civil institutions, such as independent judiciary or stron-
ger civil society. Both argue that none of the concepts of the rule of law, con-
stitution building and institution making can be understood without drawing at
least some links to TJ measures and procedures. For example, Priscilla Hayner
adds that truth commissions, during the period of transition and transformation,

11 A James McAdams, Transitional Justice and the Rule of Law in New Democracies (University of
Notre Dame Press, 1997).
12 Ruti G Teitel, ‘Transitional Justice Globalised’ (2008) 2 International Journal of Transitional Jus-
tice 1.
13 Priscilla B Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (Routledge,
2002).
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 11

are essential for justice and accountability of young democracies and thus any
democratisation and consolidation process.
Martha Minow observed that after mass atrocities and human rights viola-
tions, in the second half of the twentieth century, historical memory, narratives,
memorials, recognition, truth commissions and forgiveness are somewhat inter-
linked when re-establishing societal trust, but due to a lack of research there is
little evidence yet that they contribute to democracy.14 The lack of global com-
parative, multi-level studies on TJ measures and their possible impact is one of the
reasons why as of today there is little evidence that TJ has a direct causal effect or
impact on democracy only. But TJ measures do contribute to pathways of regime
consolidation either way, may it be democratic or autocratic. Political regimes
and actors use commemoration or compensation programs, trials or vetting proce-
dures to establish a more inclusive (democratic) or exclusive (autocratic) society
during transition processes. Thus, either way, it depends on how these measures
are applied, inclusively or exclusively, whom they target, name as perpetrators or
victims, whom they purge and how they pass lustration laws, that makes a differ-
ence whether the newly established political system turns into a more democratic
or more autocratic one. Yet, generally it is assumed that TJ contributes to democ-
ratisation processes, which it does in many aspects. But the same measures that do
that can also be used to strengthen autocratic governance structures.
One of the most profound works on the possible effect of TJ on democracies
is done by James Gibson, in which he reviews the truth and reconciliation com-
mission (TRC) and TJ process in South Africa.15 He emphasises that truth – or,
rather, facts about the past – contribute to reconciliation, which in and of itself
relates to the trust that people build up in (new) institutions. I myself, in a com-
parative long-term study of TJ in Europe since 1945, assessed that the level of
regime building and consolidation, and whether post-conflict regimes turn back
into autocracies or become more democratic, depends on the inclusive and exclu-
sive the way in which TJ measures are applied, used and abused by policymakers,
business and civil society alike.16 It is, therefore, important to aim for an inclusive
TJ process and put the blame or responsibility onto all sides and all of those mem-
bers of societies who violated the law of human rights – regardless of their social,

14 Martha Minow, Between Vengeance and Forgiveness, Facing History after Genocide and Mass
Violence (Beacon Press, 1988).
15 James L Gibson, Overcoming Apartheid: Can Truth Reconcile a Divided Nation (HSPC Press,
2004).
16 Anja Mihr, Regime Consolidation and Transitional Justice: A Comparative Study of Germany,
Spain and Turkey (Cambridge University Press, 2019).
12 AnJA MIhR

political, religious or ethnic background.17 Even though this is far from what we
see in current TJ processes and thus far from Realpolitik, governments ought to
politically aim for an inclusive TJ process and even litigate those who might be
among their best friends and party members.
Based on current studies thus far, no systematic evidence has shown that trials,
tribunals and legal punishment lead to a peaceful society. What is known is that a
mix of legal, political and historical measures can have an effect on leveraging trust
of the citizen in new political institutions and among victims and victimisers. The
simplest way to describe the current state of the art is that all theoretical and con-
ceptual endeavors in the area of TJ studies combine theories of justice and theories
of democracy with those of transformation and new institutionalism legitimacy. In
short: TJ is about transformation towards institutional and societal change and con-
solidation based on the legal and political concept of justice. Stephen Winter states
that TJ can contribute to stopping cycles of violence by improving the legitimacy
of (new) state institutions. In order to do that, people’s claims for justice need to be
addressed.18 One way of doing so is by using TJ instruments and mechanisms to
turn the vicious circle of violence and suppression into a virtuous one of peace and
free development. The division of TJ measures into punitive, historical, reparatory,
administrative or constitutional ones, as Ruti Teitel does in her first approach to
defining TJ, is a helpful categorisation to understand how cumulative the measures
can be on institutional and societal development.19
In line with these observations of TJ processes around the world, James
McAdams, for example, has long opted for a prudent and thus slow TJ process,
referring to its longer, rather than shorter, impact. To have realistic expectations
on what TJ measures can or cannot do is probably the best guidance in this pro-
cess. Political proclamations for trials, truth commissions, reparations and even
amnesties ought to be carefully negotiated with former elites of the previous
regime.20 Trials in particular can become a dangerous intervention during transi-
tion processes if they are issued in a biased way. Although they have a particular
relevance to democracy because they aim to (re)establish and strengthen the rule
of law, they can be perceived as a tool of vengeance in the hands of new political
elites in their alleged ‘crusades to root out the dictator’ and become caught up in
legal disputes that have little, if anything, to do with the realisation of justice, let
alone (de)legitimisation of the previous regime.21

17 James L Gibson, ‘The Contribution of Truth to Reconciliation, Lessons From South Africa’ (2006)
50 Journal of Conflict Resolution 409.
18 Stephen Winter, Transitional Justice in Established Democracies: A Political Theory (Palgrave
Macmillan, 2014) 225.
19 Teitel, n 12.
20 McAdams, n 11, xii.
21 Ibid x.
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 13

Interestingly enough, trials and amnesty laws are the most disputed among
TJ scholars and yet the most prominent TJ instruments in this debate. Little doubt
is left that amnesty laws can lead to a culture of impunity and are thus contrary to
one of the main goals of TJ, to hold perpetrators of past injustice accountable for
their wrongdoings. But at the same time, they can serve as a helpful tool to rein-
tegrate former perpetrators into the new political regime, if they are conditional
and not blanket.
Ruti Teitel, however, emphasises how criminal justice responds to the pre-
decessor regime’s repressive rule and thus has a delegitimising effect, and how
amnesty laws hamper this process of delegitimisation.22 She links the establish-
ment of international criminal law and justice, such as that exercised by the ICC
in The Hague (since 2002), and the earlier tribunals to Former Yugoslavia (1993–
2015) and Rwanda (1994–2014), as well as the hybrid tribunals to Sierra Leone,
Cambodia and Lebanon since 2004, to the fact that these trials put facts and fig-
ures to the wrongdoings of former political and military elites. The European
Court of Human Rights (ECtHR) in Strasbourg and the Inter-American Court
of Human Rights in Costa Rica have also addressed allegations of human rights
violations in a TJ context over the past few decades in their specific regions, and
often urged transition countries to conduct more domestic and local trials to come
to terms with past perpetrators.23
Despite the discussions about how much of each of the different TJ mea-
sures to use when and at what stage of regime transformation and consolidation,
frankly speaking, today’s TJ measures are seen as a mix of judicial and non-judi-
cial, official and non-official mechanisms, instruments, strategies and approaches
to acknowledge the wrongs of the past, either within a divided and conflict-torn
society or with neighbouring countries. TJ aims to be part of an ongoing (de)legit-
imisation process seeking to bring former conflicting parties or divided societ-
ies together into functioning relationships through political partnerships by using
democratic institutions to address the challenges of a once divided and conflict-
torn society.

1.5 Regional differences

Since around 2000, almost half of all countries applied some measures that qual-
ify as TJ measures, which underlines the current trend to correlate these measures
with regime change worldwide, including the Fiji Islands, Sri Lanka, Germany,

22 Teitel, n 12, 1.
23 Lieselotte Viaene and Eva Brems, ‘Transitional Justice and Cultural Contexts: Learning from the
Universality Debate’ (2010) 28 Netherlands Quarterly of Human Rights 199.
14 AnJA MIhR

South Africa, Argentina and Canada.24 No geographical region is exempted. In

Turkey, for example, TJ measures were seen as a revival of international criminal
law to solve long-standing and perpetuating conflicts that destabilised democratic
efforts in the 1990s. TJ measures were not only applied to the Kurdish, who had
suffered decades of war and suppression by the Turkish military, but also to help
reestablish foreign trade and political relationships with Armenia. On the Afri-
can continent, the AU and its various treaties, as well as the incentives given by
the African court, the Truth and Reconciliation Commission in South Africa, the
Rwanda Tribunal and the Special Court for Sierra Leone, had a spillover effect on
other TJ processes elsewhere on the continent. The Inter-American Court, in Costa
Rica, has proven through its judgements and decisions since the 1990s that it can
interfere in, hamper and slow TJ processes among its member states in respect to
reparations and forensic truth finding, such as in Brazil, Chile or Guatemala.
In Europe, there is a normative legal and political framework with different
international organisations that have framed TJ and the democratisation process
throughout the continent. That framework consists of the EU and the Council of
Europe (CoE), as well as the Organization for Security and Cooperation in Europe
(OSCE). The OSCE has more influence in TJ in post-communist Eastern and Cen-
tral European countries. These international organisations aim to be complemen-
tary, and their legal and politically binding status, mandates, treaties and policies are
often used as a reference point to conduct domestic trials on former elites in post-
communist countries or in post-war Balkan countries. The EU, and in particular the
European External Action Service (EEAS) of the EU, is today one of the strongest
promoters and funders of TJ measures around the world. By its financial and politi-
cal means, it supports civil society initiatives for truth commissions, trials and tri-
bunals, memorials and other instruments of acknowledgement and criminal justice.

1.6 Effect and impact of transitional justice

A widely debated aspect of TJ is that of its effect or impact on regime consolida-
tion and on democracy in particular. As explained above, there is no clear evidence
on a linear causal effect of TJ measures and democracy, but we see that actors in
countries in transition use or misuse these measures to consolidate their regime
type. It depends on how these measures are applied, in an inclusive or exclu-
sive manner, and this application determines whether regimes turn autocratic or
democratic. The regime types range between strong autocratic and consolidated
democratic political systems.

24 Lavinia Stan and Nadya Nedelsky, Encyclopedia of Transitional Justice (Cambridge University
Press, 2013).
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 15

Regardless of the possible use or misuse of TJ measures, what we often find

in transition countries is the desire among citizens for peace, justice and truth after
violent conflicts as a common phenomenon among all societies. This momentum
and catharsis after war and suppression often leads to the claim for more democ-
racy and rule of law. If used in an inclusive way by all civil and political actors,
TJ measures can strengthen democratic institution building over a longer period.
In that case, TJ measures and (new) institutions can mutually reinforce them-
selves. By doing so, the various actors and institutions use truth commissions,
trials, vetting procedures, memorials, rehabilitation programs or reparations to
connect to the citizens – victims and victimisers alike – and rebuild trust in institu-
tions, and to show that the new legislative and judicial powers perform according
to international human rights standards, rather than in a biased and arbitrary way.
In order to do that, a common narrative about what happened in the past is pivotal
to get the TJ process started in the first place.
Elazar Barkan stresses that only with a common narrative about the past will
societies overcome historical injustices and join for the same path into the future.
Without a minimum consensus of what happened in the past, no trial, no apol-
ogy, no memorial and no vetting process could be installed effectively and thus
contribute to delegitimising the past regime or legitimising the future regime.
This narrative (some call it ‘truth’) shapes new identities in society that help to
‘democratise’ and thus share an understanding of historical memory.25 In line
with Barkan, a narrow or biased understanding of historical facts has often led to
enduring injustice and, as we see in post-Soviet Russia or in Cambodia – despite
some TJ measures.
Spinner-Halev has been arguing that if the past remains untouched, his-
tory commissions, trials or vetting procedures are denied, and a culture of
impunity is established, the ‘white spots’ can easily lead to new myths in soci-
ety that again can lead to acts of vengeance or false and arbitrary justice, and
thus to new outbreaks of violence.26 As Hazan accentuates, without a mini-
mum agreement from all sides that ‘something went wrong’ in the past and
that one has to agree at least on some common denominatives, a TJ process
should not even be considered, as it would be a waste of time and money.27
Without the political will and a critical mass supporting the process, its effect
or impact will be zero.

25 Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (Johns Hop-
kins University Press, 2000).
26 Jeff Spinner-Halev, ‘From Historical to Enduring Injustice’ (2007) 35 Political Theory 574.
27 Pierre Hazan, ‘Measuring the Impact of Punishment and Forgiveness: A Framework for Evaluat-
ing Transitional Justice’ (2006) 88 International Review of the Red Cross 19.
16 AnJA MIhR

Consequently, those actors who dominate the historical narratives or determine

the facts of the past often expressed by virtue of the numbers of deaths and casual-
ties can easily manipulate and use them for further acts of vengeance and crimes.
In the end, the rapidly developing field of TJ research has put forward multi-
ple-country case studies with examples of best practices and processes. Not sur-
prisingly, some of the major recent publications in this area are those on societal
transition,28 on the performance of tribunals and hybrid courts,29 victimisation and
reconstruction,30 truth and reconciliation commissions,31 the impact of apologies32
or amnesty and impunity,33 the importance of historical memory and justice,34
reparations35 and reconciliation processes in general,36 as well as amnesties.37

28 Neil J Kritz (ed), Transitional Justice: How Emerging Democracies Reckon with Former Regimes
(United States Institute for Peace, 2004) vol I: General Considerations. McAdams, n 11. Lorna
McGregor and Kieran McEvoy, Transitional Justice from Below, Grassroots Activism and the
Struggle for Change (Hart Publishing, 2008). Jiri Priban, Pauline Roberts and James Young, Sys-
tems of Justice in Transition: Central European Experiences Since 1989 (Ashgate Publishing Lim-
ited, 2003). Lavinia Stan, Transitional Justice in Eastern Europe and the Former Soviet Union,
Reckoning with the Communist Past (Routledge, 2008).
29 Mark A Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press,
2007). Maria Jose Falcon y Tella and Fernando Falcon y Tella, Punishment and Culture, to Pun-
ish? (Martinus Nijhoff Publishers, 2006). Andreas O’Shea, Amnesty for Crime in International
Law and Practice (Kluwer Law International, 2004).
30 Paul Rock, Constructing Victims’ Rights: The Home Office, New Labour and Victims (Oxford Uni-
versity Press, 2004). Heather Strang, Repair or Revenge: Victims and Restorative Justice (Oxord
University Press, 2001).
31 Mark Freeman, Truth Commissions and Procedural Fairness (Cambridge University Press, 2006).
Teresa Godwin Phelps, Shattered Voices Language, Violence, and the Work of Truth Commissions
(University of Pennsylvania Press, 2004). Robert I Rotberg and Dennis Thompson, Truth Versus
Justice, The Morality of Truth Commissions (Princeton University Press, 2000).
32 Mark Gibney et al, The Age of Apology, Facing Up the Past (University of Pennsylvania Press, 2008).
33 Charles Villa-Vicencio and Erik Doxtader, The Provocations of Amnesty, Memory, Justice and
Impunity (Africa World Press, 2003).
34 Alexandra Barahona de Brito, Carmen Gonzalez-Enriquez, and Paloma Aguilar, The Politics of
Memory: Transitional Justice in Democratizing Societies (Oxford University Press, 2001). Bar-
kan, n 25, 63–90.
35 Charles KB Barton, Restorative Justice – The Empowerment Model (Hawkins Press, 2003).
Declan Roche, Accountability in Restorative Justice (Oxford University Press, 2003).
36 Karen Brounéus, ‘Rethinking Reconciliation Concepts, Methods, and an Empirical Study of Truth
Telling and Psychological Health in Rwanda’ (Uppsala University – Department of Peace and Con-
flict Research, 2008). Mohammed Abu-Nimer, Reconciliation, Justice and Coexistence, Theory and
Practice (Lexington Books, 2001). Daniel Bar-Tal and Gemma H Bennink, ‘The Nature of Recon-
ciliation as an Outcome and as a Process’ in Yaacov Bar-Siman-Tov (ed), From Conflict Resolution
to Reconciliation (Oxford University Press, 2004) 11. Karen M Poremski and Amy Benson Brown,
Benson Roads to Reconciliation, Conflict and Dialogue in the Twenty-First Century (ME Sharpe Inc,
2005). Mark Howard Ross, ‘Ritual and the Politics of Reconciliation’ in Yaacov Bar-Siman-Tov (ed),
From Conflict Resolution to Reconciliation (Oxford University Press, 2004) 197. Jeff Spinner-Halev,
‘Education, Reconciliation and Nested Identities’ (2003) 1 Theory and Research in Education 51.
37 Freeman, n 31.
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 17

Critical theorists argue that democratic regime change aims to create more
inclusive societies and thus institutions and political systems that allow for equity
rights and independent executive, legislative or judicial powers. Whatever incen-
tives, measures or mechanisms help to reach this (new) political order and to over-
come old, traditional, violent and ineffective ways of governance, they are seen as
a positive contribution to it.38 TJ measures are one series of many measures that
can contribute to better ways of governance.
I do not want to put too much weight on the political will of elites and citizens
during the early stage of transition, but their will and willingness to change does
matter substantially during transition periods, because the impact of TJ measures
depends on who uses them for what purpose.39 If TJ measures are not used to
include all societal groups and at the same time direct blame on all sides whilst
also commemorating all victims equally but only those that are close to the new
political elites, these TJ measures will not meet their target to reintegrate divided,
distrustful or war-torn societies.40
On the other hand, TJ can weaken and impede regime consolidation due to
the permanent reminder of the past injustice, increasing sentiments of revenge,
placing blame on only one side or group of perpetrators or, conversely, none at
all, excluding certain groups from the decision-making process or ignoring their
claims, such as the Kurds in Turkey, the Roma in Hungary, the forced child-sol-
diers in Sierra Leone or the abducted children in Argentina during dictatorship
and war. Instead, these exclusive actions are reinforcing the past regime and lead
to acts of vengeance, and that reintegrates the culture of violence and mistrust
which is the soil on which autocracies flourish. For example, Turkey’s inability
to come to terms with the Armenian Genocide has led to a closure of borders
and restriction of trade with Armenia and thus impedes diplomatic and economic
relationships.
Equally, in their studies on Latin American transition processes, Barahona
de Brito, Gonzalez-Enriques and Aguilar could not find any direct correlation
or causal effect, let alone direct impact between TJ and democracy.41 However,
according to them, the successful democratisation process in some countries
depended on the inclusiveness and equality of society, to which economic devel-
opment, balance of power, inclusion of old and new elites and representatives of

38 Christoph Humrich, ‘Critical Theory’ in Siegfried Schieder and Manuela Spindler (eds), Theories
of International Relations (Routledge, 2014) 269.
39 Anja Mihr, ‘Transitional Justice and Quality of Democracy’ (2013) 7 International Journal of
Conflict and Violence 298.
40 James L Gibson, ‘The Contribution of Truth to Reconciliation, Lessons From South Africa’ (2006)
50 Journal of Conflict Resolution 409.
41 Barahona de Brito, Gonzalez-Enriquez, and Aguilar, n 34.
18 AnJA MIhR

civil society organisations and thus TJ measures played an important role. Yet,
these measures can contribute to consolidate a regime only if certain conditions
are met, such as equal participation of all stakeholders, adherence to interna-
tional human rights laws and standards, the continuing quest for independent
legislative and judiciary powers and comprehensive inclusion of citizens and
constituencies.
The assumption that TJ measures increase the level of trust in newly estab-
lished institutions has been strongly defended in recent years. Different surveys
to measure trust in institutions have shown that there is an incremental correlation
between civic trust and the level of institutional performance in relation to TJ.
Nonetheless, civic trust implies that the person who trusts, for example, to trust
again the victimiser who tortured prisoners in police custody or the judge who
once issued decisions loyal to a dictatorial regime, freely transfers assets to this
institution, without controlling their actions or having the possibility to retaliate.
This is in fact often not the case in post-dictatorial societies where mistrust is
widely spread, as was the case in Chile or Poland. There must also be a potential
gain or incentive for the ‘trust-inexperienced’ citizens to engage with institutions
that they have never trusted before. In this case a criminal judgement on past
justice spoken through an international court or tribunal (ideally, of course, by a
national court), aims to give such a positive example and shows that institutions
can work in favor of citizens. Symbolic acts of reconciliation or commemora-
tions, for example, of the Holocaust among Israeli and German leaders, or an
official apology of the Spanish government to the victims of the Franco regime,
can reestablish trust of victims and survivors in the new institutions or the suc-
cessor regime of the one that once oppressed them. TJ measures thus can work as
catalysts, tools or incentives to slowly develop trust in new institutions and thus
consolidate regime change.42
In order to measure effective pathways to regime consolidation in relation to
TJ measures, the decisions by an independent judiciary also need to be enforced
under supervision of impartial courts and police. Justice thus theorises the role of
the state and/or comparable local, domestic and international governance institu-
tions that encompass a proper democratic process.43 But Campbell also highlights
that to settle political disagreements through court-centered disputes alone would
fail to strengthen formal and administrative justice.44 A mix of TJ measures is
needed to reach the anticipated trust.

42 Jurgen Schupp and Michael Naef, ‘Measuring Trust: Experiments and Surveys in Contrast and
Combination’ (Institute for the Study of Labor, Discussion Paper No 4087 (2009) 3).
43 Tom Campbell, Justice (Palgrave Macmillan, 2010).
44 Ibid 256.
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 19

More authors argue along the same lines, such as Nevin T Aiken, for exam-
ple. He highlights that TJ measures need to be associated with real and tangible
change in the socio-economic conditions of former antagonists and thus social
justice, for example through compensations or reparations, and not only crimi-
nal justice. Thus, socioeconomic and legislative reforms go hand in hand. Par-
ticularly, reparations are determined to reach out to citizens and victims through
compensation.45 Aiken uses the example of South Africa after the end of the
Apartheid regime, where reparation and other socio-economic benefits related to
past injustice were offered as one direct way to engage (new) governmental insti-
tutions with citizens. By doing so, they acknowledged past wrongdoings and at
the same time delegitimised the previous unjust Apartheid regime. Reparations
were closely bound up with questions of justice and a way to counterbalance for
victims the potential ‘justice deficit’ caused by the granting of conditional amnes-
ties to perpetrators.46 The latter was the result of a negotiated deal between state
institutions and victimisers in order to convince them to testify at least ‘some-
thing’ in front of the Truth and Reconciliation Commissions (TRC), such as in
South Africa in the late 1990s.
Yet, the use of too many or too little TJ measures, too soon or too late in time,
may also spoil effective transition process as well as reconciliation. To keep the
balance of interest and consequences among trials, apologies, memorials or repa-
ration is hard to achieve.47 The constant urge for more justice, truth or atonements
can put much pressure on both old and new elites, on victimiser and victims alike,
and encourage spoilers to hamper successful transition to democracy or better
governance. Domestic and international stakeholders involved in the transition
process have to balance and eventually constrain public interests, in order to reach
an inclusive and pluralistic decision-making process. Any public interest is com-
posed of all members of a society, some of them victims and others victimisers. TJ
measures are tools to balance public interest after times of conflict and violence.
Sometimes they aim at retributive justice, sometimes at restoring socio-economic
equality and sometimes at seeking truth. In 1988, Martha Minow highlighted in
one of the first books on TJ the importance of balancing TJ measures, and states
that ‘truth and justice are not the same’.48

45 Nevin T Aiken, Identity, Reconciliation and Transitional Justice, Overcoming Intractability in

Divided Societies (Routledge, 2013).
46 Ibid 185.
47 Interestingly enough the UNO, the EU, the OAS and the AU in their mission statements have never
glorified those who started or won wars (as was previously the case), but instead acknowledge
those nations that suffered in their grief to establish peace and welfare for all. This indicates that
the first paradigm shift had already occurred in 1945 and then again in 1990 after the end of the
Cold War.
48 Minow, n 14, 9.
20 AnJA MIhR

1.7 Transitional justice in transition and

transformation periods
Transition in a more narrow sense is the normative and institutional change from
one regime to another one in the first four to five years after the end of a regime;
that is to say, formal transition from one regime type to another by, for example,
changing a constitution. Transformation is the medium and long-term alteration
and consolidation of a regime and society in political and socio-economic terms.
This period can take decades, over a generation or more, and it aims to change
and consolidate a certain political culture, behavior and institutions. TJ measures
can influence both processes in the short, medium and long term. During each
period, they have a different effect or impact. During the earlier phase of transi-
tion, TJ measures serve above all as delegitimisation tools. During the long-term
transformation process, they have a legitimising effect in favor of the new politi-
cal regime.
During transition and regime change, constitution and institution building
is pivotal and TJ measures can help, as we have seen in post-conflict or post-
authoritarian regimes. International governmental organisations such as the UN,
the OECD, the AU, NATO or the EU give incentives from the outside. In most
cases of transition, international actors firmly supported market economies and
democracy and adhered to international law standards, making any effort to join
international organisations in order to hasten the integration of the new political
regime into the international community, and in reverse to control and orchestrate
their transition process.49
What has all this to do with TJ? Well, during the first years of the transition
periods, the emergence from authoritarian or suppressive rule is often accom-
panied by sweeping changes in the governance system. The new regime is very
fragile; institutions are yet to be built and citizens usually do not yet trust the new
regime. Most countries in transition opt for a democratic model and create new
institutional structures such as courts, a parliament and a government based on
fundamental (human and freedom) rights in their constitutional set-up.
To set up institutions on paper or as brick buildings does not say anything
about the way in which these institutions such as public administration, parlia-
ments or courts perform, let alone about their quality. Nevertheless, these new
(democratic) institutions are put in place to ensure a minimum level of the rule of

49 The long-term aspect of TJ measures has been stressed by the UN Special Rapporteur on the
promotion of truth, justice, reparation and guarantees of non-recurrence: Pablo de Greiff, Report
of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-
Recurrences, UN Doc A/HRC/24/42 (28 August 2013).
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 21

law and the protection of human rights, usually manifested in their constitutional
set-ups. But what can be noted is that TJ measures have their most positive con-
tribution to strengthen these weak institutions if they become tools in the hands of
civil society, such as victim groups, to channel their claims for acknowledgement,
justice or economic development.
Thus, regime change during early transition or transformation periods is
a process of a series of negotiations and compromises between actors, such as
political parties, victim groups, victimisers or international organisations, often
with different interests and resources. Regime change is consolidated when new
political rules are in place, which often include rules for TJ, such as the willing-
ness to set up reparations, trials, lustrations or amnesties and others and to which
all involved parties and actors compromise and adhere.50 Thus, depending on how
these rules really reflect societal set-ups and interest, how inclusive or exclusive
they are, determines whether a regime change leans more toward democracy or
autocracy.

1.8 Theory of transitional justice

Due to a lack of a unified TJ theory, we can only summarise the efforts and attempts
currently underway to develop a theory of TJ. To mention but a few are the publi-
cations by Buckely-Zistel,51 Winter,52 Dube,53 Grodsky,54 Hansen,55 Murphy56 and
Caney57 who approach the patterns and processes of TJ from normative-legal,
criminal-punitive and reconciliation and peace-building perspectives. Based on
the facts, case studies and measures mentioned above, most of these authors share
the basic theoretical link of TJ to the concept of justice by John Rawls,58 and to
other existing theories such as the theories of transition, transformation, justice

50 Julian Brückner, ‘Transitionsansatz’ in Raj Kollmorgen, Wolfgang Merkel, and Hans-Jürgen

Wagener (eds), Handbuch Transformationsforschung (Springer VS, 2014) 90.
51 Susanne Buckley-Zistel, Teresa Koloma Beck, Christian Braun, and Friederike Mieth (eds), Tran-
sitional Justice Theories (Routledge, 2015).
52 Stephen Winter, ‘Towards a Unified Theory of Transitional Justice’ [2013] International Journal
of Transitional Justice 1.
53 Siphiwe Ignatius Dube, ‘Transitional Justice Beyond the Normative: Towards a Literary Theory of
Political Transition’ (2011) 5 The International Journal of Transitional Justice 177.
54 Brian Grodsky, ‘Re-Ordering Justice: Towards a New Methodological Approach in Studying Tran-
sitional Justice’ (2009) 46 Journal of Peace Research 819.
55 Thomas Obel Hansen, ‘Transitional Justice: Towards a Differentiated Theory’ (2011) 13 Oregon
Review of International Law 1.
56 Colleen Murphy, The Conceptual Foundations of Transitional Justice (Cambridge University
Press, 2017).
57 Simon Cany, Justice Beyond Borders: Political Theory (Oxford University Press, 2006).
58 John Rawls, Theory of Justice (Harvard University Press, 1971).
22 AnJA MIhR

or reconciliation. They use the normative concept of justice and argue that TJ
measures contribute to transforming societies and establishing a new normative
benchmark of justice based on human rights, which also serves as a ground for
democracies.
Buckley-Zistel et al. compiled essays that illustrate how TJ measures con-
tribute to human rights and civic norm-diffusion and peace-building after con-
flicts and wars. Caney, for example, explains why a potential theory of TJ is
normatively rooted in the concept of global justice. Global justice is based on
universal human rights norms and standards without which no TJ and no democ-
racy process can take place. Winter argues that a theory of TJ can answer those
who criticise by arguing that TJ consists of helpful tools for new and established
democracies, because democracies attain continuing legitimacy through citizens,
and TJ measures can resolve the burden to seek it.59 He aims to develop a politi-
cal theory based on a theory of legitimacy and regime change and states that TJ
legitimates the new (state) order by declaring that, despite necessary continuities,
political institutions will henceforth bear a very different character.60 Murphy
argues that TJ involves the just pursuit of societal transformation. Such transfor-
mation requires political reconciliation and laws that treat people morally and fair
on all spectrums of society.
In all these theoretical concepts, the role of citizens and participation is piv-
otal. They are the ones that legitimise institutions or not, including programmes
such as TJ which improve institutional performance and thus legitimise them.61
State institutions learn to respond to citizens’ claims to redress wrongdoings in a
way that makes it more respectful of new human rights abiding values.

1.9 Ways ahead for transitional justice

TJ is a short, medium and long-term process that allows the introduction of politi-
cal, legal or historical TJ measures such as commissions of inquiry, trials, repa-
rations, memorials and more, as well as legal, judicial or political instruments
composed of international human rights law and constitutional reforms, with the
aim to trigger and support regime transition and transformation. TJ measures
are used by political and civil actors to delegitimise the past regime and to legiti-
mise the new regime. Setting up trials and ad hoc tribunals or issuing restorative
justice laws in the context of reparations or compensations ought to be seen as
measures that support longer-term regime consolidation based on active civil

59 Winter, ‘Towards a Unified Theory’, n 52, 3.

60 Winter, Transitional Justice, n 18, 18.
61 Ibid 22.
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 23

society that learns to trust again in institutions that have long betrayed them. But
no transformation process will entirely depend on TJ measures. TJ measures are
complementary to other socio-economic reforms and thus do not alone lead to
societal shifts or changes. Yet, although these measures are nonpartisan by nature,
they depend on the political will and ambition by the actors involved in the TJ
process and thus have deep political consequences for society. Recent studies and
publications have illustrated how universal the impact and influence of TJ mea-
sures on societal transformation can go. Nanci Adler and Vladimic Petrovic, for
example, have compiled a number of essays that illustrate how genocide, mass
political violence and historical injustices are being institutionally addressed, and
how historical and personal narratives have gained an audience through interna-
tional criminal tribunals, trials and truth commissions and how these narratives
influence the concept of justice and the process of reconciliation.62 Arnaud Kurze
and Christopher Lamont have edited a book that illustrates informal mechanism
and artistic actions, practices and trends in responses to post-conflict and post-
authoritarian societies. Different authors in different countries look at how visual
art, music, painting, narrative and novels, or movies and theater influence recon-
ciliation processes as well as trials and policy decisions.63
Yet there is little dispute about the shared observation that TJ measures are
pivotal for societal transformation in the long run. Transformative justice is a term
often used in this context in past years. In the future, it will be more difficult for
societies and their governments to deny claims for justice and the installment of
TJ measures even decades after the war or the atrocities have ended. They are seen
as catalysts or tools for political and societal change, but no guarantee for demo-
cratic change. We have seen over the past two to three decades that even decades
or a century after atrocities took place, governments in established democracies
such as Australia, Japan, the United Kingdom, France or Canada are asked to
respond appropriately to the past injustices by issuing apologies, setting up trials
or commissions of inquiry or compensating victims and their descendants as long
as 70 years after the crimes have occurred. TJ in the third and fourth generation is
not the exception anymore but rather the rule, as we see in post–World War II Ger-
many or Austria. TJ measures are tools to willingly transform and strengthen soci-
ety and its institutions, and therefore the call for ‘transformative justice’ instead of
transitional justice is not overheard.

62 Nanci Adler and Vladimic Petrovic (eds), Understanding the Age of Transitional Justice: Crimes,
Courts, Commissions, and Chronicling, Genocide, Political Violence, Human Rights (Rutgers
University Press, 2018).
63 Arnaud Kurze and Christopher K Lamont (eds), New Critical Spaces in Transitional Justice: Gen-
der, Art, and Memory (Indiana University Press, 2019).
24 AnJA MIhR

And there is more to it in international terms. International pressure or the

incentives to use TJ, such as by the OAS, AU, EU and UN, are not to be under-
estimated in any transition and transformation process. To install TJ measures
is often a requirement for international loans or memberships in international
organisations. In order to join the EU, for example, many countries and for-
mer member states of Yugoslavia were urged to collaborate with the ICTY
and issue a number of TJ measures in order to have accession talks or receive
EU development funds, such as Slovenia, Croatia, Bosnia-Herzegovina, Serbia
and Macedonia. Similarly, in 1994 the new Rwandan government had to col-
laborate closely with the ICTR in order to receive financial support from third
countries and the World Bank. These examples show that international incen-
tives or conditions on the side, and the wish of these governments to integrate
and be part of the international community, are not to be underestimated as an
incentive for TJ.
But regardless of which means governments use to install a TJ process, dur-
ing transition these political actors have to be mindful of the fact that memory is
fortunately a dynamic process that also involves forgetting, and that each genera-
tion interprets the events of the past on its own. Pierre Hazan has stressed that
unless there is no public or citizen-driven transparency or a monitoring procedure
to bring about TJ measures, these measures may prove ineffective and instead
become a convenient alibi for inertia.64 Such transparency and monitoring pro-
cedures can be guaranteed only if democratic institutions are set down on paper
and work somewhat effectively, because only if fundamental freedom rights are
guaranteed can they leave room for participation of societal and political actors
of all sides. This includes victims, bystanders and victimisers at the same time.
Thus, democratic institutions must be formally in place in order to implement any
TJ effort and to move ahead with transformation of a society.

1.10 Discussion and tutorial questions

1) Discuss the possible effects that Transitional Justice measures can have for
democracies as well as for authoritarian regimes.
2) Discuss recent case studies and examples of countries or societies in which
restorative or retributive TJ measures have led to negative or positive conse-
quences for peace, stability and equality.

64 Pierre Hazan, ‘Measuring the Impact of Punishment and Forgiveness: A Framework for Evaluat-
ing Transitional Justice’ (2006) 88 International Review of the Red Cross 19.
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 25

3) Discuss among your peers how the political, legal or theoretical concept of
Transitional Justice has developed over the past three decades and what have
been the major steps or pathways during its evolution. Use different regional
examples and country case studies; for example, compare the Latin American
TJ process with those in Eastern Europe. Compare, for example, security
sectors and military reforms and reparations programs in sub-Saharan Africa
with those in South America, and determine whether they had any impact on
institution building in the respective countries.

Suggested reading
Cook, Karen S, Russell Hardin, and Margaret Levi, Cooperation without Trust (Rus-
sell Sage Foundation Series on Trust, 2005).
Corradetti, Claudio and Nir Eisikovits (eds), Theorizing Transitional Justice (Ash-
gate, 2015).
Hazan, Pierre, Judging War, Judging History, Behind Truth and Reconciliation (Stan-
ford University Press, 2010).
Mihr, Anja (ed), Transitional Justice: Between Criminal Justice, Atonement and
Democracy (SIM Special No 37, Utrecht University Press, 2012).
Olson, Tricia D, Leigh A Payne, and Andrew G Reiter, Transitional Justice in Balance,
Comparing Processes, Weighing Efficacy (United States Institute of Peace, 2010).
Teitel, Ruti G, Globalizing Transitional Justice, Contemporary Essays (Oxford Univer-
sity Press, 2014).
Thompson, Janna, Taking Responsibility for the Past, Reparation and Historical Jus-
tice (Blackwell Publishing, 2002).
van der Merwe, Hugo, Victoria Baxter, and Audrey R Chapman (eds), Assessing the
Impact of Transitional Justice, Challenges for Empirical Research (United States
Institute of Peace, 2009).
Winter, Stephen, Transitional Justice in Established Democracies: A Political Theory
(Palgrave Macmillan, 2014).

bibliography
Abu-Nimer, Mohammed, Reconciliation, Justice and Coexistence, Theory and Prac-
tice (Lexington Books, 2001).
Adler, Nanci and Petrovic Vladimir (eds), Understanding the Age of Transitional Jus-
tice: Crimes, Courts, Commissions, and Chronicling, Genocide, Political Violence,
Human Rights (Rutgers University Press, 2018)
Aiken, Nevin T, Identity, Reconciliation and Transitional Justice: Overcoming Intracta-
bility in Divided Societies (Routledge, 2013).
Arthur, Paige, ‘How “Transitions” Reshaped Human Rights: A Conceptual History
of Transitional Justice’ (2009) 31 Human Rights Quarterly 321.
26 AnJA MIhR

Bar-Tal, Daniel and Gemma H Bennink, ‘The Nature of Reconciliation as an Out-

come and as a Process’ in Yaacov Bar-Siman-Tov (ed), From Conflict Resolution
to Reconciliation (Oxford University Press, 2004).
Barkan, Elazar, The Guilt of Nations: Restitution and Negotiating Historical Injustices
(Johns Hopkins University Press, 2000).
Barton, Charles KB, Restorative Justice – The Empowerment Model (Hawkins Press,
2003).
Brounéus, Karen, Rethinking Reconciliation Concepts, Methods, and an Empirical
Study of Truth Telling and Psychological Health in Rwanda (Uppsala University –
Department of Peace and Conflict Research, 2008).
Brückner, Julian, ‘Transitionsansatz’ in Raj Kollmorgen, Wolfgang Merkel, and
Hans-Jürgen Wagener (eds), Handbuch Transformationsforschung (Springer
VS, 2014).
Buckley-Zistel, Susanne, Teresa Koloma Beck, Christian Braun, and Friederike
Mieth (eds), Transitional Justice Theories (Routledge, 2015).
Campbell, Tom, Justice (Palgrave Macmillan, 2010).
Cany, Simon, Justice Beyond Borders: Political Theory (Oxford University Press, 2006).
de Brito, Alexandra Barahona, Carmen Gonzales Enriquez, and Paloma Aguilar,
The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford
University Press, 2001).
de Greiff, Pablo, Report of the Special Rapporteur on the Promotion of Truth, Jus-
tice, Reparation and Guarantees of Non-Recurrences, UN Doc A/HRC/24/42 (28
August 2013).
de Greiff, Pablo, Transitional Justice, Security, and Development (Security and Jus-
tice Thematic Paper, World Bank, 2010).
Deitelhoff, Nicole and Klaus Dieter Wolff, ‘Business and Human Rights: How Cor-
porate Norm Violators Become Norm Enterperneurs’ in Thomas Risse, Ste-
phen C Ropp, and Kathryn Sikkink (eds), The Persisting Power of Human Rights,
From Commitment to Compliance (Cambridge University Press, 2013).
Drumbl, Mark A, Atrocity, Punishment, and International Law (Cambridge University
Press, 2007).
Dube, Siphiwe Ignatius, ‘Transitional Justice Beyond the Normative: Towards a Lit-
erary Theory of Political Transition’ (2011) 5 The International Journal of Tran-
sitional Justice 177.
Falcon y Tella, Maria Jose, and Fernando Falcon y Tella, Punishment and Culture, to
Punish? (Martinus Nijhoff Publishers, 2006).
Freeman, Mark, Truth Commissions and Procedural Fairness (Cambridge University
Press, 2006).
Gibney, Mark, Rhoda E Howard-Hassmann, Jean-Marc Coicaud, and Niklaus Steiner,
The Age of Apology, Facing Up the Past (University of Pennsylvania Press, 2008).
Gibson, James L, ‘The Contribution of Truth to Reconciliation, Lessons from South
Africa’ (2006) 50 Journal of Conflict Resolution 409.
Gibson, James L, Overcoming Apartheid: Can Truth Reconcile a Divided Nation (HSPC
Press, 2004).
 An InTRODuCTIOn TO TRAnSITIOnAL JuSTICE 27

Godwin Phelps, Teresa, Shattered Voices Language, Violence, and the Work of Truth
Commissions (University of Pennsylvania Press, 2004).
Grodsky, Brian, ‘Re-Ordering Justice: Towards a New Methodological Approach in
Studying Transitional Justice’ (2009) 46 Journal of Peace Research 819.
Hague Institute for the Internationalisation of Law, Tilburg University and Utrecht
University, Measuring Access to Justice in a Globalising World: Final Report (2010).
Hansen, Thomas Obel, ‘Transitional Justice: Towards a Differentiated Theory’
(2011) 13 Oregon Review of International Law 1.
Hayner, Priscilla B, Unspeakable Truths: Facing the Challenge of Truth Commissions
(Routledge, 2002).
Hazan, Pierre, ‘Measuring the Impact of Punishment and Forgiveness: A Frame-
work for Evaluating Transitional Justice’ (2006) 88 International Review of the
Red Cross 19.
Humrich, Christoph, ‘Critical Theory’ in Siegfried Schieder and Manuela Spindler
(eds), Theories of International Relations (Routledge, 2014).
International Center for Transitional Justice, Home Page (2015) ICJT <www.ictj.org>.
International Committee of the Red Cross, Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva
Convention), 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950)
‘Article 51’.
Kritz, Neil J (ed), Transitional Justice: How Emerging Democracies Reckon with Former
Regimes (United States Institute for Peace, 2004) vol I: General Considerations.
Kurze, Arnaud and Christopher K Lamont (eds), New Critical Spaces in Transitional
Justice: Gender, Art, and Memory (Indiana University Press, 2019).
McAdams, A James, Transitional Justice and the Rule of Law in New Democracies
(University of Notre Dame Press, 1997).
McGregor, Lorna and Kieran McEvoy, Transitional Justice from Below, Grassroots
Activism and the Struggle for Change (Hart Publishing, 2008).
Mihr, Anja, Regime Consolidation and Transitional Justice a Comparative Study of Ger-
many, Spain and Turkey (Cambridge University Press, 2019)
Mihr, Anja, ‘Transitional Justice and Quality of Democracy’ (2013) 7 International
Journal of Conflict and Violence 298.
Minow, Martha, Between Vengeance and Forgiveness, Facing History after Genocide
and Mass Violence (Beacon Press, 1988).
Murphy, Coleen, The Conceptual Foundations of Transitional Justice (Cambridge Uni-
versity Press, 2017).
O’Shea, Andreas, Amnesty for Crime in International Law and Practice (Kluwer Law
International, 2004).
Poremski, Karen M and Amy Benson Brown, Benson Roads to Reconciliation, Con-
flict and Dialogue in the Twenty-First Century (ME Sharpe Inc, 2005).
Priban, Jiri, Pauline Roberts, and James Young, Systems of Justice in Transition:
Central European Experiences Since 1989 (Ashgate Publishing Limited, 2003).
Rawls, John, Theory of Justice (Harvard University Press, 1971).
Roche, Declan, Accountability in Restorative Justice (Oxford University Press, 2003).
28 AnJA MIhR

Rock, Paul, Constructing Victims’ Rights: The Home Office, New Labour and Victims
(Oxford University Press, 2004).
Ross, Mark Howard, ‘Ritual and the Politics of Reconciliation’ in Yaacov Bar-
Siman-Tov (ed), From Conflict Resolution to Reconciliation (Oxford University
Press, 2004).
Rotberg, Robert I and Dennis Thompson, Truth Versus Justice, The Morality of Truth
Commissions (Princeton University Press, 2000).
Schupp, Jurgen and Michael Naef, ‘Measuring Trust: Experiments and Surveys in
Contrast and Combination’ (Institute for the Study of Labor, Discussion Paper
No 4087 (2009) 3).
Spinner-Halev, Jeff, ‘Education, Reconciliation and Nested Identities’ (2003) 1 The-
ory and Research in Education 51.
Spinner-Halev, Jeff, ‘From Historical to Enduring Injustice’ (2007) 35 Political The-
ory 574.
Stan, Lavinia, Transitional Justice in Eastern Europe and the Former Soviet Union,
Reckoning with the Communist Past (Routledge, 2008).
Stan, Lavinia and Nadya Nedelsky, Encyclopedia of Transitional Justice (Cambridge
University Press, 2013).
Strang, Heather, Repair or Revenge: Victims and Restorative Justice (Oxord Univer-
sity Press, 2001).
Teitel, Ruti G, Globalizing Transitional Justice (Oxford University Press, 2014).
Teitel, Ruti G, ‘Transitional Justice Globalised’ (2008) 2 International Journal of Tran-
sitional Justice 1.
United Nations, Addendum 61st Session of the United Nations General Assembly, UN
Doc A/61/L.22/Add.1 (20 November 2006).
United Nations, ‘Guidance Note of the Secretary-General: United Nations Approach
to Transitional Justice’ (10 March 2010).
United Nations, ‘Sustainable Development Goals, Goal 16 Peace, Justice and
Strong Institutions’ (2015) <https://sustainabledevelopment.un.org/>.
UN Educational, Scientific and Cultural Organisation (UNESCO), Convention for
the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954,
‘Article 38’.
Viaene, Lieselotte and Eva Brems, ‘Transitional Justice and Cultural Contexts:
Learning from the Universality Debate’ (2010) 28 Netherlands Quarterly of
Human Rights 199.
Villa-Vicencio, Charles and Erik Doxtader, The Provocations of Amnesty, Memory,
Justice and Impunity (Africa World Press, 2003).
Winter, Stephen, ‘Towards a Unified Theory of Transitional Justice’ (2013) Interna-
tional Journal of Transitional Justice 1.
Winter, Stephen, Transitional Justice in Established Democracies: A Political Theory
(Palgrave Macmillan, 2014).
Chapter 2

The development of transitional

justice

Andrew G Reiter

2.1 Introduction
Transitional justice has ancient roots. For centuries states have engaged in the
difficult task of engaging past violence. Yet it is also a modern phenomenon
dramatically shaped by recent transformations in international relations. This
chapter traces the development of transitional justice, beginning with promi-
nent historical examples of societies emerging from war. The discussion then
shifts to the international response to World War II that ushered in a new era of
individual criminal accountability. Beginning in the mid-1970s, the world expe-
rienced a massive wave of democratisation – termed the ‘third wave’ – that was
marked by significant innovation in transitional justice.1 These transitioning
states enacted sweeping amnesty laws to provide stability, operated novel truth
commissions to uncover information about the past, created programs to pro-
vide reparations to individual victims, and instituted lustration laws to limit the
influence of perpetrators on government and politics. Transitional justice went
through another transformation following the end of the Cold War, in what some
have termed a ‘fourth wave’ of democratisation,2 as justice once again became
prominent on the international stage, leading to the creation of new tribunals to
handle war crimes and the development of new global norms of accountability.
Finally, the chapter takes stock of the field today, in which transitional justice
has become a permanent component of any domestic or international response
to atrocities.

1 This followed two previous waves that occurred during the periods 1828–1926 and 1943–1962.
Samuel P Huntington, The Third Wave: Democratization in the Late Twentieth Century (Univer-
sity of Oklahoma Press, 1999).
2 Renske Doorenspleet, Democratic Transitions: Exploring the Structural Sources of the Fourth
Wave (Lynne Rienner Publishers, 2005).
30 ANDREW G REITER

2.2 The historical roots of transitional justice

As long as societies have emerged from conflicts and transitioned from one
regime to another they have been engaging in activities we would now consider
transitional justice mechanisms. Scholars have identified transitional justice
occurring at least as far back as early Athens. In 411 BCE, the new democratic
regime pursued policies of retribution against the ousted oligarchy, but enacted
an amnesty law and pursued policies of reconciliation following the defeat of a
second oligarchic regime.3 Transitional justice also played a key role in many
of the most prominent global events of recent centuries. Following the defeat
of France in 1814, the victorious coalition of European powers forcibly exiled
Napoleon Bonaparte to the island of Elba, only to see him escape less than a year
later. After defeating him for good in the summer of 1815, the victors chose to
imprison Napoleon on the island of Saint Helena in the Atlantic Ocean, under
British guard. He remained there until his death in 1821. The end of the US
Civil War in 1865 was marked by the extension of an official Proclamation of
Amnesty and Pardon by President Andrew Johnson on 29 May to those who had
participated in the Southern rebellion. The government also engaged in the poli-
cies of Reconstruction aimed at transforming and rebuilding the South after the
war, though most consider the attempts having failed in effectively reintegrating
and rehabilitating the region.
The end of World War I would also involve important transitional justice
decisions on the part of the victors. The Treaty of Versailles famously included
the War Guilt Clause that forced Germany to admit to being the cause of the
global conflict. Moreover, the treaty required Germany to pay war reparations,
to the tune of US$33 billion (or the equivalent of more than US$400 billion
today). These reparations were a source of tension within Germany and between
Germany and the victors of World War I, particularly France, and are widely
considered a contributing factor to the rise of Adolf Hitler in Germany and the
advent of World War II just two decades later. Germany took out a considerable
number of loans in the 1920s to pay reparations, the last of which was not fully
paid off until 2010.4
In general, all of the early transitional justice efforts focused primarily on
immediate retribution through executions and exiles, or were centred on broad
amnesty policies geared towards enabling societies to simply move on from past
violence. Following World War II, however, transitional justice would take on a

3 Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge Univer-
sity Press, 2004).
4 Olivia Lang, ‘Why Has Germany Taken So Long to Pay Off Its WWI Debt?’, BBC News (online),
2 October 2010 <www.bbc.com/news/world-europe-11442892>.
 ThE DEvELOPMEnT Of TRAnSITIOnAL JuSTICE 31

new form, with ‘justice’ taking prominence and a shift in focus from national-
level efforts to policies aimed at individual perpetrators and victims.

2.3 The nuremberg Trials

The foundations of modern transitional justice emerged following the global dev-
astation of World War II. A militaristic Japan engaged in an aggressive expan-
sion of its empire throughout East Asia beginning in 1937, and Germany, led by
Hitler and his Nazi Party, proceeded to invade and conquer most of Europe. In
1945, both Germany and Japan were finally defeated by a coalition of powers
(the Allies) led by the United States, the Soviet Union, and the United Kingdom,
but not before more than 50 million people were left dead. More than any war
before it, World War II was also marked by its impact on civilians, who were
often caught between advancing armies and targeted in mass bombing campaigns
of cities. The world was further outraged as more evidence of the Holocaust – the
extermination of some 11 million people, 6 million of them Jews, by the Nazi
regime – began to be uncovered.
In the wake of this devastation, the victorious Allies engaged in extensive
debates about what to do with those believed to be responsible for wartime atroci-
ties. With the failures of the collective responsibility approach used after World
War I fresh in their minds, and viewed as one of the causes of World War II, the
Allies decided to pursue individual criminal responsibility in a public trial that
would demonstrate democratic notions of justice to the world. The International
Military Tribunal at Nuremberg (referred to as the Nuremberg Trials) began oper-
ation in November 1945 and was jointly run by the United States, Soviet Union,
United Kingdom, and France. In the Pacific, the United States also took the lead
in adopting a similar process – the International Military Tribunal for the Far East
(referred to as the Tokyo War Crimes Tribunal) – for trying Japanese political and
military leaders.
The Nuremberg Trials, representing the first true collaborative effort at inter-
national justice, became the foundation for modern international criminal law.
Overall, 20 former Nazi political and military leaders were convicted at Nurem-
berg (three were acquitted). The trials created the legal concept of crimes against
humanity that is still in use today, and the legal reasoning used in the trials directly
influenced the Genocide Convention (1948), Universal Declaration of Human
Rights (1948), Geneva Convention (1949), and many other human rights treaties
signed in subsequent decades. The Nuremberg Trials also served as the inspiration
for the eventual creation of a permanent international court to handle cases of war
crimes and crimes against humanity (see p. 37).
The Nuremberg Trials, however, were not without controversy. By creating
new categories of law, the Allies were essentially convicting individuals of crimes
32 ANDREW G REITER

that were not crimes when they were committed. Other important decisions made
by the tribunal, including which defendants to charge, were made on predomi-
nantly political rather than legal grounds.5 The trials were denounced by some
as nothing more than victor’s justice, since the Allies quietly ignored their own
crimes committed during the war, particularly the atrocities perpetrated by the
Soviet Union, which began the war by invading Poland, the Baltic States, and Fin-
land as an ally of Germany. In the end, ‘it is clear that the Nuremberg prosecution
was primarily intended to justify and legitimate Allied intervention in the war.’6
Yet, while partially politically motivated and inherently flawed, the Nuremberg
trials served to dramatically shift the manner in which the world would respond
to atrocities, and the notion of individual criminal responsibility would be picked
up again by the international community following the end of the Cold War (see
p. 35). In the interim, transitional justice shifted to the domestic level, where indi-
vidual states struggled to deal with atrocities committed by their own authoritar-
ian regimes. Transitional justice in this context took on a new complexity, since
the perpetrators were often important actors who remained influential long after
leaving power.

2.4 Transitional justice in the third wave

For two decades, beginning in the mid-1970s, the world witnessed a dramatic
surge of countries transitioning from authoritarian rule to democracy. Beginning
with the Carnation Revolution in Portugal in 1973 until the aftermath of the col-
lapse of the Soviet Union in the early 1990s, more than 50 countries transitioned
in what Samuel Huntington has termed the ‘third wave’ of democratisation.7 In
the wake of the human rights violations carried out by exiting dictators, military
governments, and one-party regimes, each new democracy was forced to make
difficult choices about how to engage the past. Immediate transitional justice deci-
sions were often determined by the relative power of former authoritarian actors
as many states faced a trade-off between justice and peace.8
In cases where the outgoing regime was defeated or significantly weakened,
new democracies were more ambitious in their pursuit of justice for past wrongs.
In Greece, for example, a weak military junta ruled from 1967 to 1974 before its

5 Richard Overy, ‘The Nuremberg Trials: International Law in the Making’ in Philippe Sands (ed),
From Nuremberg to The Hague: The Future of International Criminal Justice (Cambridge Univer-
sity Press, 2003) 1, 7–8.
6 Ruti G Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69, 73.
7 Huntington, n 1.
8 Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice vs Peace in Times of
Transition (Frank Cass, 2004).
 ThE DEvELOPMEnT Of TRAnSITIOnAL JuSTICE 33

failed attempt to take over Cyprus. Turkey invaded Cyprus to expel the Greek
forces, undermining the military regime and leading to the restoration of democ-
racy. The new government subsequently undertook a massive purge of those with
ties to the former regime from the government and military, and proceeded to
put more than 400 former regime leaders on trial. The highest-ranking officers
were sentenced to death (commuted to life sentences) in August 1975.9 Argentina
attempted to take a similar approach with its outgoing military regime, but soon
faced a backlash and had to reverse course with a series of amnesties and pardons
(see case study).
In other cases, however, authoritarian regimes carefully negotiated their tran-
sitions from power, and amnesty laws severely limited the ability of any new
regime to engage the past. In Brazil, for example, the military regime enacted an
amnesty in 1979, and after a gradual transition beginning in 1985, the amnesty
was incorporated into the 1988 constitution. Despite challenges by victims’
groups and human rights proponents, the amnesty prevented any trials of mem-
bers of the military regime for more than three decades, and in April 2010, the
Supreme Court reaffirmed the law, citing its historical context and role as a cata-
lyst for democratisation.10 Other countries too felt that amnesties and forgetting
the past were necessary for peace and democratic stability. In Spain, a pact of
forgetting, or pacto del olvido, negotiated by elites but widely accepted by society,
has reigned from its transition in 1978 to present.11 The 1973–1985 Uruguayan
military regime ended as a result of the Naval Club pact between the military
and political parties. The new regime issued two major amnesty laws in 1985 and
1986. Human rights organisations attempted to overturn the amnesty provisions,
but they were upheld by popular vote in a 1989 referendum and again in a 2009
plebiscite.12 There was a strong perception within Uruguay that human rights tri-
als could jeopardise the democratisation process.13
Faced with restrictions on pursuing justice, many democracies in the ‘third
wave’ shifted their attention to other transitional justice mechanisms that would

9 Nicos C Alivizatos and P Nikiforos Diamandouros, ‘Politics and the Judiciary in the Greek Transi-
tion to Democracy’ in A James McAdams (ed), Transitional Justice and the Rule of Law in New
Democracies (University of Notre Dame Press, 1997) 27.
10 Nina Schneider, ‘Impunity in Post-Authoritarian Brazil: The Supreme Court’s Recent Verdict on
the Amnesty Law’ (2011) 90 European Review of Latin American and Caribbean Studies 39.
11 Madeleine Davis, ‘Is Spain Recovering Its Memory – Breaking the Pacto del Olvido?’ (2005)
27(3) Human Rights Quarterly 858.
12 Luis R Roniger and Mario Sznajder, ‘The Legacy of Human Rights Violations and the Collective
Identity of Redemocratized Uruguay’ (1997) 19(1) Human Rights Quarterly 55, 57.
13 Alexandra Barahona de Brito, ‘Truth, Justice, Memory, and Democratization in the Southern
Cone’ in Alexandra Barahona de Brito, Carmen González-Enríquez, and Paloma Aguilar (eds),
The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford University Press,
2001) 119.
34 ANDREW G REITER

achieve some lesser level of accountability for perpetrators or address the needs
of victims. This was mirrored by a shift in those working on and studying tran-
sitional justice, as a field dominated by lawyers and legal scholars opened up
to the social sciences and humanities more broadly. In Eastern Europe and the
former Soviet Union, with communist parties often still strong, new democra-
cies largely eschewed trials in favour of lustration processes, whereby those with
links to the former regime were removed from and/or banned from holding posi-
tions of power within the new government. Some countries, such as the Czech
Republic, took an aggressive approach, publicising secret files to expose those
responsible for past crimes, dismissing members of the government and security
services, and enacting stringent laws regarding eligibility for government service.
Other countries, however, took a softer approach, publicising officials’ pasts but
allowing them to stay in office (Hungary) or granting individuals the right to con-
fess their past complicity and remain in government if the testimony was truthful
(Poland).14 Many of these countries, for example Romania, also had to deal with
the tricky issue of property restitution for land and dwellings confiscated by the
state during Communist rule.15
A novel approach to transitional justice also began to develop during this time
in Latin America: the truth commission. These temporary institutions aimed to
investigate and report on past human rights violations, thereby delivering some
accountability for the crimes while also providing healing and closure for victims.
The first major truth commission was the National Commission on the Disap-
peared (CONADEP) established in Argentina 1983. Other prominent commis-
sions in Uruguay and Chile followed, and in 1992 the United Nations funded and
administered the Commission on the Truth in El Salvador, agreed upon as part of
the peace process that ended the country’s long-running civil war. The widespread
publicity of the South African Truth and Reconciliation Commission (TRC), which
began in 1995, led to a global expansion in the adoption of this mechanism. The
South African TRC, which investigated the crimes of Apartheid, was notable for
its integration of amnesty into the truth-telling process: perpetrators would not be
punished if they participated in the proceedings and told the truth about the past.
In many cases, truth commissions led directly to reparations programs for victims,
and spurred grassroots efforts to construct monuments and memorialise the past.
Overall, while trials occurred in several notable cases, domestic transitional
justice processes during the ‘third wave’ were mostly victim-focused, as new

14 Roman David, Lustration and Transitional Justice: Personnel Systems in the Czech Republic,
Hungary and Poland (University of Pennsylvania Press, 2011).
15 Lavinia Stan, ‘The Roof over Our Head: Property Restitution in Romania’ (2006) 22(2) Journal of
Communist Studies and Transition Politics 180.
 ThE DEvELOPMEnT Of TRAnSITIOnAL JuSTICE 35

democracies feared the instability that could result from attempting to bring per-
petrators of past crimes to justice. The end of the Cold War, however, would bring
about dramatic changes in international politics that led to a resurgence of justice
worldwide.

2.5 A new era of international justice

Throughout the Cold War, civil wars raged throughout the world, with opposing
parties receiving significant financial and military support from the two global
superpowers – the United States and Soviet Union. While atrocities were wide-
spread, the geopolitics of the time resulted in little international reaction. The fall
of the Soviet Union and the end of the Cold War led to more upheaval, as ethnic
tensions, held at bay by externally supported regimes, were now released. Yet at
the same time, there were now fewer strategic incentives to block international
interventions into these conflicts. The United States and other regional powers
became more active in intervening in armed conflicts, and United Nations peace-
keeping took a prominent role in ending wars and maintaining peace after their
termination. In this environment, international justice took on a renewed purpose
as the international community hoped to solidify new international norms and
deter future human rights violations.
The first impetus for a renewed approach to international justice came shortly
after the Cold War ended, when ethnic conflict broke out in the former Yugosla-
via. Lasting from 1991 to 1995, the war left nearly 100,000 dead and opposing
sides engaged in orchestrated ethnic cleansing. Military intervention by the North
Atlantic Treaty Organization was necessary to stop the conflict, giving the major
international powers a vested interest in post-war politics and preventing a renewal
of violence. In addition, more than 8,000 Muslim Bosniaks were massacred in
Srebrenica, Bosnia and Herzegovina in 1995, and the occurrence of a genocide
in Europe, despite the Nuremberg Trials and pledges that such atrocities would
never happen again, forced the international community to respond. In 1993, the
UN established the International Criminal Tribunal for the Former Yugoslavia
(ICTY) to try violations of the laws of war, genocide, and crimes against human-
ity committed during the conflict. The ICTY completed its operation in 2017, hav-
ing indicted 161 individuals, from all sides of the conflict, including high-profile
leaders of various warring parties. Slobodan Milošević, the president of Serbia,
was the first sitting head of state to be indicted for war crimes.
A second crisis soon confronted the international community in 1994 when
800,000 Rwandans (mostly Tutsi) were killed in a genocide that lasted just 100
days. There was widespread horror at the atrocities, with much of the killing done
with machetes. Moreover, the powerful states avoided intervening to stop the vio-
lence and the UN, which had a presence in Rwanda, also failed to act. After the
36 ANDREW G REITER

violence ended, the UN responded by creating the International Criminal Tribunal

for Rwanda in 1994. The court concluded its operation in 2015 having indicted
93 individuals. The ICTR made history with its judgement against Jean-Paul
Akayesu on 2 September 1998, where it delivered the first international verdict
for the crime of genocide and also established the role of rape as a means of per-
petrating genocide. Overall, both international tribunals succeeded in helping to
expose the extent of and responsibility for past crimes, and in putting justice back
on the international agenda.
The international tribunals, however, were not without their criticisms. Their
ad hoc nature placed a considerable burden on the UN in creating each institution
from scratch. Their locations – in The Hague, Netherlands, and Arusha, Tanzania,
respectively – made them distant from the populations they were aiming to influ-
ence. Despite having a much wider mandate than the Nuremberg Trials, the tribu-
nals could still not get over the claims that they were meting out victors’ justice.16
Finally, there was significant donor fatigue as many states questioned whether the
tribunals were worth it given their high costs. The ICTY, for example, is now in
its 22nd year, maintained a staff of approximately 1,200 at its height, and has cost
nearly $2 billion– or roughly $14 million per trial.17
Given these issues, in the wake of further conflicts with varying degrees of
international intervention the UN took a new, ‘hybrid’ approach to international
justice. These were combined international and domestic efforts held in the coun-
tries in which the violations occurred. The UN would provide some funding and
contribute international judges and lawyers, but the country in question would
also shoulder some of the burden and provide its judges and lawyers. The hope
was that these efforts would be cheaper, provide quicker results, help build rule of
law domestically, and allow the local populations to see justice being done.
There were four major hybrid tribunals created in just the five-year span
from 1999 through 2003. Following East Timor’s independence struggle from
Indonesia, which ended with a UN-brokered peace and intervention, the Special
Panels of the Dili District Court operated from 2000–2006, indicting nearly 400
individuals for rape, murder, and torture committed in East Timor in 1999. In the
aftermath of the Kosovo War in 1999, the UN provided assistance to the opera-
tion of the Kosovo judicial system, including granting the Special Representa-
tive of the Secretary-General the authority to establish ‘Regulation 64 panels’
that removed the most controversial cases of war crimes from domestic courts to

16 Victor Peskin, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the Interna-
tional Criminal Tribunals for the Former Yugoslavia and Rwanda’ (2005) 4(2) Journal of Human
Rights 213.
17 Robert M Hayden, From Yugoslavia to the Western Balkans: Studies of a European Disunion,
1991–2011 (Brill, 2013) 278.
 ThE DEvELOPMEnT Of TRAnSITIOnAL JuSTICE 37

specially created three-judge panels comprising at least two international judges.

The deadly civil war in Sierra Leone, which left more than 50,000 dead, led to a
request by the government of Sierra Leone in 2000 for the creation of the Special
Court for Sierra Leone to prosecute those who bear the greatest responsibility for
serious violations of international humanitarian law during the war. The court was
established in 2002 and completed its work in 2013, convicting nine individuals,
including Liberian former president Charles Taylor, who became the first African
head of state to be convicted of war crimes. Finally, after years of negotiation,
the UN and Cambodia agreed to create the Extraordinary Chambers in the Courts
of Cambodia in 2003. Funding issues delayed its start until 2007, but the court
subsequently indicted five individuals of the former Khmer Rouge regime, three
of whom have been convicted.
While an improvement in some ways from the ICTY and ICTR efforts, the
hybrid approach suffered from its own problems. The tribunals had difficulty
merging international and domestic laws and practices, local resistance and a lack
of cooperation on the ground hindered investigative and enforcement efforts, and
most were underfunded and understaffed, limiting their effectiveness. In East
Timor, for example, the Special Panels were unable to bring most perpetrators to
trial since they resided in Indonesia, which had no interest in cooperating. In addi-
tion, many continued to deride the ad hoc nature of the institutions and momentum
continued to mount for the creation of a permanent international criminal court.

2.6 The International Criminal Court

In 1998, the UN General Assembly convened a five-week conference in Rome,
Italy, to draft a convention for the creation of an international tribunal to pros-
ecute individuals accused of genocide and other serious international crimes. On
17 July, the Rome Statute was adopted, outlining a new International Criminal
Court (ICC). States ratified the treaty over the ensuing years, reaching a total of
60 signatories and bringing the statute into force on 1 July 2002. The permanent
court, based in The Hague, has jurisdiction over crimes against humanity, geno-
cide, and war crimes committed on or after 1 July 2002 in member states or in
situations referred to the Court by the UN Security Council.
To date, the Court has opened investigations into ten countries. In 2003,
Uganda, a state party, referred the situation of the Lord’s Resistance Army (LRA)
to the Court. The chief prosecutor opened an investigation into the case in 2004,
and in July 2005, issued the Court’s first arrest warrants for five senior leaders of
the LRA, including Joseph Kony. In 2004, another state party, the Democratic
Republic of Congo, referred crimes committed in its territory to the Court, and
Thomas Lubanga, former leader of the Union of Congolese Patriots militia,
became the first person to be arrested under a warrant issued by the Court in 2006
38 ANDREW G REITER

and the first person to be convicted by the Court in 2012 when he was sentenced to
14 years in prison for abducting children to serve as soldiers. In a case referred by
the UN Security Council, the ICC issued an arrest warrant in 2009 – the first for a
sitting head of state – for Sudanese President Omar al-Bashir for crimes commit-
ted in Darfur. Soon after, Laurent Gbagbo, President of Ivory Coast, became the
first head of state to be taken into custody by the Court when he was arrested and
extradited in 2009. The Court has also strengthened international law by defining
cultural destruction as a war crime in its 2016 conviction of an Islamic militant
who helped destroy mausoleums and religious sites in Timbuktu, Mali, in 2012.
Other cases are ongoing on Kenya, Central African Republic, Libya, Georgia, and
Burundi.
There is no doubt that the creation of the ICC represents a dramatic and posi-
tive shift in international relations. A permanent body now exists with the sole
purpose of prosecuting serious international crimes and has demonstrated even
heads of state are not beyond its reach. Yet despite its impressive achievements
in just over a decade of operation, the Court has been heavily criticised.18 First,
many question the extent to which the Court truly is international. As of today,
122 states are parties to the convention, yet many of the world’s most important
states remain outside of it. These include the world’s largest and most powerful
states, such as the United States, China, Russia, India, and Indonesia, as well as
nuclear powers Pakistan, North Korea, and Israel. How effective can the Court be
if a large percentage of the world’s population is not covered and the strongest
militaries and largest arms suppliers remain above the law? Moreover, all but one
case (Georgia) the ICC has investigated has been in Africa, leading to many ques-
tions about the global reach of the Court and leading to a backlash on the conti-
nent.19 In June 2015, Sudan’s al-Bashir, indicted by the ICC in 2009, attended an
African Union summit in South Africa, whose government refused to arrest him
despite being obligated by the Rome Statute to do so.
Finally, despite many high-profile cases, the Court so far has delivered only
nine convictions, raising similar questions as were raised about previous ad hoc
tribunals regarding the institution’s costs and effectiveness. In response to inves-
tigations, Burundi and the Philippines have left the Court, further demonstrat-
ing the difficulty it has faced in bringing perpetrators accountable. While only
time will tell if these issues will end up being temporary stumbling blocks or

18 David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics
(Oxford University Press, 2014).
19 Adam Taylor, ‘Why So Many African Leaders Hate the International Criminal Court’ Washing-
ton Post (online), 15 June 2015 <www.washingtonpost.com/news/worldviews/wp/2015/06/15/
why-so-many-african-leaders-hate-the-international-criminal-court/>.
 ThE DEvELOPMEnT Of TRAnSITIOnAL JuSTICE 39

insurmountable problems, the ICC nevertheless represents a landmark develop-

ment in international relations that has reshaped views on justice and account-
ability worldwide.

2.7 The justice cascade and universal

jurisdiction
The creation of the ICC was, not only an institutional response to the problems
associated with ad hoc tribunals, but also part of a larger global normative shift
towards accountability for human rights violations. Scholars Ellen Lutz and
Kathryn Sikkink first coined the term ‘justice cascade’ in 2001 to describe this
transformation, defining it as a ‘rapid shift toward recognizing the legitimacy of
human rights norms and an increase in international and regional action to effect
compliance with those norms.’20 The emergence of a global transitional justice
advocacy network of tightly linked domestic activists and international non-gov-
ernmental organisations pushed often-recalcitrant states to pursue accountabil-
ity for past human rights violations. The transitional justice network was part
of a broader human rights advocacy network and an even larger transformation
in international norms toward greater protection of human rights. These norms
have become increasingly codified in a range of legally binding treaties and
conventions, including the Genocide Convention, the International Convention
Against Torture, and the Geneva Conventions.21 In addition, the European and
Inter-American Courts on Human Rights, in interpreting and enforcing regional
conventions, have made key rulings regarding the duty of states to investigate and
prosecute past human rights violations.22
As a result of the justice cascade, countries everywhere in the world have
increasingly pursued trials in the wake of human rights violations.23 While amnes-
ties are still used, they have shifted, from ‘broader to more tailored, from sweep-
ing to qualified, from laws with no reference to international law to those which
explicitly try to stay within its strictures.’24 Perhaps no development signifies this

20 Ellen Lutz and Kathryn Sikkink, ‘The Justice Cascade: The Evolution and Impact of Foreign
Human Rights Trials in Latin America’ (2001) 2(1) Chicago Journal of International Law 1, 4.
21 Diane F Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a
Prior Regime’ (1991) 100(8) Yale Law Journal 2537.
22 Naomi Roht-Arriaza, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Vio-
lations in International Law’ (1990) 78(2) California Law Review 449, 471–472.
23 Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World
Politics (Norton, 2011).
24 Naomi Roht-Arriaza and Lauren Gibson, ‘The Developing Jurisprudence on Amnesty’ (1998)
20(4) Human Rights Quarterly 843, 884.
40 ANDREW G REITER

global shift more than the emergence of the concept of universal jurisdiction.
Under this legal concept:

Certain crimes are so universally agreed to be heinous, so potentially disruptive of

international peace, and so difficult for states to adequately prosecute on account
of potential links to state officials or other powerful people that all states have the
right to try anyone accused of them.25

The landmark case in the development of universal jurisdiction was that of

former Chilean dictator Augusto Pinochet. After taking power in a coup in 1973,
Pinochet ruled Chile until 1989, when he unexpectedly lost a plebiscite on his rule
and was forced to allow democratic elections. Although Pinochet stepped down,
he remained commander-in-chief of the armed forces and became a senator for
life. The military remained a powerful political player and Pinochet handpicked
many of the senators and Supreme Court justices, all working to prevent any
significant efforts into holding perpetrators accountable for human rights abuses
committed during Pinochet’s regime. In Spain, however, the Spanish Union of
Progressive Prosecutors filed a case in Spanish federal court against members of
the former military regime in Argentina for the detention and disappearance of
Spanish citizens. The case, under the direction of Judge Baltazar Garzón, later
grew to examine the coordination of Latin America’s authoritarian regimes in car-
rying out these crimes (known by the regimes as ‘Operation Condor’), including
Chile and Pinochet. In March 1998, Garzón issued arrest warrants for Pinochet
and 38 other individuals associated with Chile’s authoritarian regime.
Despite the ongoing Spanish case, Pinochet travelled to London in October
1998 for medical treatment. Alerted to his travel by Amnesty International,
Garzón responded by issuing an international arrest warrant for Pinochet. British
police served it on 17 October, and he was placed under house arrest. Pinochet
would remain there for 502 days, during a hotly contested legal battle, until he
was finally released and allowed to return to Chile on grounds of ill health. The
Spanish case, however, proved to be a catalyst for efforts within Chile to bring
accountability for the authoritarian regime’s crimes.26 Aided by strong support
from domestic human rights organisations, Chilean judge Juan Guzmán declared
that missing person cases should be considered kidnappings rather than homi-
cides and thus were ongoing crimes. In so doing, he creatively circumvented the

25 Naomi Roht-Arriaza, ‘The Multiple Prosecutions of Augusto Pinochet’ in Ellen L Lutz and Caitlin
Reiger (eds), Prosecuting Heads of State (Cambridge University Press, 2000) 77, 80.
26 David Pion-Berlin, ‘The Pinochet Case and Human Rights Progress in Chile: Was Europe a Cata-
lyst, Cause or Inconsequential?’ (2004) 36(3) Journal of Latin American Studies 479.
 ThE DEvELOPMEnT Of TRAnSITIOnAL JuSTICE 41

existing amnesty law.27 More than 1,000 cases have been opened in Chile,28 and
Pinochet himself was indicted and charged multiple times, though was not con-
victed prior to his death in 2006.
While there have been few cases tried under the concept of universal juris-
diction, the Pinochet case represented a landmark change in international human
rights discourse, and the legal concept that some crimes extend beyond state sov-
ereignty continues to shape transitional justice decisions – visible in prosecutions
at the international ad hoc tribunals and the ICC.

2.8 The permanency of transitional justice

Since the turn of the century, transitional justice has become a permanent feature
of any response to human rights violations, expanding and normalising into what
Ruti Teitel has called a ‘steady-state’ phase.29 Many international and domestic
non-governmental organisations have formed in response to the steady demand
for transitional justice mechanisms, including the International Center for Tran-
sitional Justice, which was founded in 2001. The UN also now considers transi-
tional justice to be a key component of its tool kit for responding to atrocities, and
in 2010 the Secretary-General released a guidance note outlining the organisa-
tion’s position.30 As a result of these developments, transitional justice processes
have played a prominent role in resolution of civil wars in many countries in
recent years, including Liberia, Burundi, the Democratic Republic of Congo, and
Nepal. The peace agreement that ended Colombia’s more than 50-year civil war
in 2016 also focused on a transitional justice response and included provisions for
special tribunals, an amnesty, and reparations for victims.31
The civil wars and toppling of dictators associated with the Arab Spring
beginning in 2010 have featured key debates on transitional justice, and just as in
the third wave, domestic conditions have led to divergent approaches.32 Tunisia,

27 Francesca Lessa et al, ‘Overcoming Impunity: Pathways to Accountability in Latin America’

(2014) 8(1) International Journal of Transitional Justice 75, 91–92.
28 For up-to-date information, see Instituto de Investigación en Ciencias Sociales, ‘Latest Human Rights
Statistics for Chile’ <www.icso.cl/observatorio-derechos-humanos/cifras-causas-case-statistics/>.
29 Teitel, n 6.
30 United Nations, ‘Guidance Note of the Secretary General: United Nations Approach to Transi-
tional Justice’ (10 March 2010).
31 Sibylla Brodzinsky, ‘FARC Peace Talks: Colombia Nears Historic Deal after Agreement on
Justice and Reparations’, The Guardian (online), 23 September 2015 <www.theguardian.com/
world/2015/sep/24/farc-peace-talks-colombia-nears-historic-deal-after-agreement-on-justice-
and-reparations>.
32 Kirsten Fisher and Robert Stewart (eds), Transitional Justice and the Arab Spring (Routledge
Press, 2014).
42 ANDREW G REITER

for example, has been relatively free of its authoritarian shadow, as dictator Zine
el-Abidine Ben Ali fled the country for exile in Saudi Arabia. The new regime
has pursued trials of Ben Ali, several government officials, and numerous high-
and low-ranking officers in the security forces for crimes committed during the
uprising and protests in 2010 and 2011. A Tunisian court sentenced Ben Ali to
life imprisonment for inciting violence and murder. In 2014, the government
also established the Truth and Dignity Commission to examine past violence. In
contrast, Ali Abdullah Saleh carefully negotiated his exit from power in Yemen
and secured an amnesty as a precondition before stepping down. Soon after, he
opened a museum to commemorate his own 33-year rule, and remained an influ-
ential player in politics. In 2015, an insurgency of Shia Houthi forces, loyal to
Saleh, captured the capital, and the country has been embroiled in civil war since,
despite his death in the conflict in 2017. In Egypt, the new regime has tried former
dictator Hosni Mubarak, but the military has closely controlled transitional justice
efforts and prevented any attempts to expose its role in human rights violations.
Meanwhile, countries that transitioned long ago continue to revisit their vio-
lent pasts, engaging in what scholars have termed ‘post-transitional justice.’33
Former Peruvian dictator Alberto Fujimori was convicted for his use of military
death squads against suspected terrorists during his rule and sentenced to 25 years
in prison in 2009. He was pardoned due to health reasons in 2017 but the pardon
was subsequently annulled and, as of this writing, he is once again serving his
sentence in prison. After 30 years of silence, Spain finally took the first steps to
engage the abuses of its past with the enactment of the Historical Memory Law in
2007, which recognised victims on both sides of the Spanish Civil War and con-
demned the regime of Francisco Franco that followed. Poland recently instituted
a new reparations program and enacted a new law on the dissemination of objects
depicting fascism or communism in 2009. If history is any indication, those coun-
tries now transitioning and engaging in transitional justice for the first time will
almost certainly still be revisiting their violent pasts decades from now.

Case study: Argentina

Perhaps no country illustrates the development of transitional justice over the
past half-century better than Argentina. The country was prominent in the wake
of Nuremberg as many Nazis fled to its sympathetic shores. Most famously, Adolf
Eichmann, one of the key architects of the Holocaust, was captured in Argentina
in 1960 by Mossad, Israel’s intelligence service, and publicly tried in Israel. Found

33 Cath Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador (Penn State
University Press, 2011).
 ThE DEvELOPMEnT Of TRAnSITIOnAL JuSTICE 43

guilty of war crimes, he was hanged in 1962.34 Argentina later experienced its
own extensive human rights violations at the hand of a military regime that took
power in 1976. In its effort to combat those on the political left in the context of
the Cold War, the military enacted a highly repressive regime that imprisoned and
tortured citizens, and disappeared as many as 30,000 people, often disposing of
their bodies in the ocean in what became known as the Dirty War. The defeat of
the regime by the British in a failed attempt to take control of the Malvinas/Falk-
land Islands forced the regime to allow elections and step down from power in
1983 – but not before passing a self-amnesty law (the National Pacification Law)
to prevent itself from being tried for any crimes. The new democratic regime,
however, led by President Raul Alfonsín, a human rights lawyer, quickly worked
to engage the past, creating the CONADEP to investigate past violence in 1983. Its
final report, entitled Nunca Más, revealed the extent of human rights violations
committed by the former regime. Shortly after taking power, the new government
annulled the National Pacification Law and trials began of members of the former
regime, including the ruling junta, culminating in thousands of convictions. Resis-
tance within the military, however, began to grow, and in 1986 the government,
under threat, sought to limit prosecutions by passing the Full Stop Law, which
gave prosecutors 60 days to bring any further cases to trial. In 1987, a series of
junior officer revolts (the Carapintada rebellion) forced the government to pass the
Law of Due Obedience, which exempted lower-ranking members of the military
from prosecution. The election of Carlos Menem in 1989 led to a series of presi-
dential pardons, including of the former military junta. By 1990, Argentina thus
found itself blocked from holding trials and with those who had been convicted
now free.35 In this vacuum, victim-centred mechanisms thus began to take centre
stage. In 1992, the National Commission for the Right to Identity was created and
began working with the National Genetic Databank to reunite with their extended
families the children of the disappeared, who had often been given to military
families. From 1994 to 2000, the government also paid out more than $750 million
in reparations to victims of the Dirty War. Strong civil society pressure to renew
the pursuit of justice began to emerge in the early 2000s, and the new president,
Néstor Kirchner, annulled the amnesty laws in August 2003. The Supreme Court
validated the nullification and declared the amnesties unconstitutional in 2005.
Kirchner also overturned the previous presidential pardons, paving the way for
renewed prosecutions, which continue in domestic courts today.

2.9 Summary
Transitional justice has undergone a dramatic transformation over the past cen-
tury. For centuries, policies were often directed at states or societies as a whole,

34 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking Press, 1963).
35 Par Engstrom and Gabriel Pereira, ‘From Amnesty to Accountability: The Ebb and Flow in the
Search for Justice in Argentina’ in Francesca Lessa and Leigh A Payne (eds), Amnesty in the Age
of Human Rights Accountability: Comparative and International Perspectives (Cambridge Uni-
versity Press, 2012) 97.
44 ANDREW G REITER

such as the reparations Germany was forced to pay after World War I, or involved
swift executions or exiles of opposing leaders. Following World War II, the inter-
national community set a new precedent of providing judicial accountability for
individual responsibility in mass atrocity in establishing the Nuremberg Trials.
While the Cold War prevented further international response, individual states
embarked on a significant period of innovation, enacting a wide range of transi-
tional justice mechanisms aimed at healing victims and reconciling divided soci-
eties. The emergence of new human rights norms in the post–Cold War world then
led to a new wave of international justice via the creation of several important
ad hoc tribunals, the legal development of the concept of universal jurisdiction,
and the eventual establishment of the ICC. Now transitional justice has become
a staple of all efforts to transition from authoritarianism to democracy and from
armed conflict to peace. While power politics continues to play a role, and mecha-
nisms have varied significantly in their level of success, there is now a growing
consensus that engaging the past is necessary for societies to heal and move for-
ward following episodes of political violence.

2.10 Discussion and tutorial questions

1) What have been the most significant developments in transitional justice?
What explains the major shifts in approach following World War II and again
after the Cold War? What types of changes do you anticipate for transitional
justice in the future?
2) What major factors shape domestic transitional justice decisions? What do
we mean by states having to choose between peace or stability and justice?
3) What is the justice cascade? What important events provide evidence of its
existence? Is there contrary evidence that suggests the norm is not as strong
as many think?
4) Since the Nuremberg Trials there has been an effort to make international
justice universal. Yet international tribunals have been accused of enacting
victors’ justice and the major powers in the world continue to remain outside
of the ICC’s jurisdiction. To what extent do you think accountability for past
human rights violations has become universal? Will power politics always
trump justice, or do you think this barrier can be overcome?

Suggested reading
Bass, Gary J, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals
(Princeton University Press, 2000).
 ThE DEvELOPMEnT Of TRAnSITIOnAL JuSTICE 45

Bosco, David, Rough Justice: The International Criminal Court in a World of Power
Politics (Oxford University Press, 2014).
Elster, Jon, Closing the Books: Transitional Justice in Historical Perspective (Cam-
bridge University Press, 2004).
Kritz, Neil J (ed), Transitional Justice: How Emerging Democracies Reckon with For-
mer Regimes, 3 volumes (United States Institute of Peace Press, 1995).
Nedelsky, Nadya and Lavinia Stan (eds), The Encyclopedia of Transitional Justice, 3
volumes (Cambridge University Press, 2012).
Teitel, Ruti G, Transitional Justice (Oxford University Press, 1999).

Suggested films
Nuremberg (Turner Home Entertainment, 2001).

bibliography
Alivizatos, Nicos C and P Nikiforos Diamandouros, ‘Politics and the Judiciary in
the Greek Transition to Democracy’ in A James McAdams (ed), Transitional
Justice and the Rule of Law in New Democracies (University of Notre Dame
Press, 1997) 27.
Arendt, Hannah, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking
Press, 1963).
Barahona de Brito, Alexandra, ‘Truth, Justice, Memory, and Democratization in the
Southern Cone’ in Alexandra Barahona de Brito, Carmen González-Enríquez,
and Paloma Aguilar (eds), The Politics of Memory: Transitional Justice in Democ-
ratizing Societies (Oxford University Press, 2001) 119.
Bosco, David, Rough Justice: The International Criminal Court in a World of Power
Politics (Oxford University Press, 2014).
Brodzinsky, Sibylla, ‘FARC Peace Talks: Colombia Nears Historic Deal after Agree-
ment on Justice and Reparations’ The Guardian (online), 23 September 2015
<www.theguardian.com/world/2015/sep/24/farc-peace-talks-colombia-
nears-historic-deal-after-agreement-on-justice-and-reparations>.
Collins, Cath, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador
(Penn State University Press, 2011).
David, Roman, Lustration and Transitional Justice: Personnel Systems in the Czech
Republic, Hungary and Poland (University of Pennsylvania Press, 2011).
Davis, Madeleine, ‘Is Spain Recovering Its Memory – Breaking the Pacto del
Olvido?’ (2005) 27(3) Human Rights Quarterly 858.
Doorenspleet, Renske, Democratic Transitions: Exploring the Structural Sources of
the Fourth Wave (Lynne Rienner Publishers, 2005).
Elster, Jon, Closing the Books: Transitional Justice in Historical Perspective (Cam-
bridge University Press, 2004).
Engstrom, Par and Gabriel Pereira, ‘From Amnesty to Accountability: The Ebb and
Flow in the Search for Justice in Argentina’ in Francesca Lessa and Leigh A
46 ANDREW G REITER

Payne (eds), Amnesty in the Age of Human Rights Accountability: Comparative

and International Perspectives (Cambridge University Press, 2012) 97.
Fisher, Kirsten and Robert Stewart (eds), Transitional Justice and the Arab Spring
(Routledge Press, 2014).
Hayden, Robert M, From Yugoslavia to the Western Balkans: Studies of a European
Disunion, 1991–2011 (Brill, 2013).
Huntington, Samuel P, The Third Wave: Democratization in the Late Twentieth Cen-
tury (University of Oklahoma Press, 1999).
Instituto de Investigación en Ciencias Sociales, Latest Human Rights Statistics for Chile
<www.icso.cl/observatorio-derechos-humanos/cifras-causas-case-statistics/>.
Lang, Olivia, ‘Why Has Germany Taken So Long to Pay Off Its WWI Debt?’ BBC News
(online), 2 October 2010 <www.bbc.com/news/world-europe-11442892>.
Lessa, Francesca, Tricia D Olsen, Leigh A Payne, Gabriel Pereira, and Andrew G
Reiter, ‘Overcoming Impunity: Pathways to Accountability in Latin America’
(2014) 8(1) International Journal of Transitional Justice 75.
Lutz, Ellen and Kathryn Sikkink, ‘The Justice Cascade: The Evolution and Impact
of Foreign Human Rights Trials in Latin America’ (2001) 2(1) Chicago Journal
of International Law 1.
Orentlicher, Diane F, ‘Settling Accounts: The Duty to Prosecute Human Rights Vio-
lations of a Prior Regime’ (1991) 100(8) Yale Law Journal 2537.
Overy, Richard, ‘The Nuremberg Trials: International Law in the Making’ in Philippe
Sands (ed), From Nuremberg to The Hague: The Future of International Criminal
Justice (Cambridge University Press, 2003) 1.
Peskin, Victor, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Win-
ners at the International Criminal Tribunals for the Former Yugoslavia and
Rwanda’ (2005) 4(2) Journal of Human Rights 213.
Pion-Berlin, David, ‘The Pinochet Case and Human Rights Progress in Chile: Was
Europe a Catalyst, Cause or Inconsequential?’ (2004) 36(3) Journal of Latin
American Studies 479.
Roht-Arriaza, Naomi, ‘The Multiple Prosecutions of Augusto Pinochet’ in Ellen L
Lutz and Caitlin Reiger (eds), Prosecuting Heads of State (Cambridge University
Press, 2009) 77.
Roht-Arriaza, Naomi, ‘State Responsibility to Investigate and Prosecute Grave Human
Rights Violations in International Law’ (1990) 78(2) California Law Review 449.
Roht-Arriaza, Naomi and Lauren Gibson, ‘The Developing Jurisprudence on
Amnesty’ (1998) 20(4) Human Rights Quarterly 843.
Roniger, Luis R and Mario Sznajder, ‘The Legacy of Human Rights Violations and
the Collective Identity of Redemocratized Uruguay’ (1997) 19(1) Human Rights
Quarterly 55.
Schneider, Nina, ‘Impunity in Post-Authoritarian Brazil: The Supreme Court’s
Recent Verdict on the Amnesty Law’ (2011) 90 European Review of Latin Ameri-
can and Caribbean Studies 39.
Sikkink, Kathryn, The Justice Cascade: How Human Rights Prosecutions Are Chang-
ing World Politics (Norton, 2011).
 ThE DEvELOPMEnT Of TRAnSITIOnAL JuSTICE 47

Sriram, Chandra Lekha, Confronting Past Human Rights Violations: Justice vs Peace
in Times of Transition (Frank Cass, 2004).
Stan, Lavinia, ‘The Roof Over Our Head: Property Restitution in Romania’ (2006)
22(2) Journal of Communist Studies and Transition Politics 180.
Taylor, Adam, ‘Why So Many African Leaders Hate the International Criminal Court’ Wash-
ington Post (online), 15 June 2015 <www.washingtonpost.com/news/worldviews/
wp/2015/06/15/why-so-many-african-leaders-hate-the-international-criminal-
court/>.
Teitel, Ruti G, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights
Journal 69.
United Nations, ‘Guidance Note of the Secretary-General: United Nations Approach
to Transitional Justice’ (10 March 2010).
Chapter 3

International criminal justice

Rachel Kerr

3.1 Introduction
In the early 1990s, following the end of the Cold War, a powerful movement
emerged to bring to justice those accused of international crimes. This movement –
international criminal justice, or ICJ – reached its apex with the establishment of
a permanent International Criminal Court (ICC), with the adoption of the Rome
Statute in July 1998, and its coming into force four years later, in July 2002,
ushering in a much-vaunted ‘end to impunity’. The establishment of the ICC was
highly significant symbolically and materially. It was the culmination of a move-
ment that traced its origins to the Military Tribunals at Nuremberg and Tokyo after
World War II and was revived following a 50-year hiatus with the establishment
by the UN Security Council in 1993 and 1994 of the ad hoc International Criminal
Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribu-
nal for Rwanda (ICTR). International criminal justice also comprised a number
of hybrid institutions, blending international and local law and personnel, such as
the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of
Cambodia and a handful of cases brought in domestic courts under the principle
of universal jurisdiction.1
This chapter provides a survey of the theory and practice of international
criminal justice, focused on the history, development and operation of interna-
tional courts. It begins with a brief historical overview, moves on to consider the
purposes and goals of international criminal justice, key points of contention and

1 Although the exercise of universal jurisdiction by domestic courts in cases such as Pinochet (1998)
can be placed under the rubric of international criminal justice, it is not discussed in detail here, but
for discussion of the principle and its application, see Chapter 2 in this volume, Andrew G Reiter,
‘The development of transitional justice’.
50 RACHEL KERR

controversy – in particular those revolving around the three ‘great debates’ of peace
vs justice, international vs local actors and interests and retributive vs restorative
conceptions of justice. Finally, it considers the current position of international
criminal justice, focusing in particular on the purported ‘crisis’ at the ICC.

3.2 Definition
‘International criminal justice’ implies not only the practice of prosecuting, or
seeking accountability for, international crimes but also the idea that such crimes
are the concern of the international community, writ large. It has been articu-
lated elsewhere as ‘the response of the international community to mass atrocity’.
There are different disciplinary approaches to the study of international criminal
justice, including notable contributions from scholars of politics, history, sociol-
ogy and psychology, as well as international law, which have significantly broad-
ened its scope as a field of study.
International criminal justice (ICJ) is often conflated with the broader field
of Transitional Justice (TJ), but it represents only one of a range of mecha-
nisms for dealing with the legacy of past abuses in the transitional justice ‘tool
kit’ (which also includes mechanisms such as truth commissions, reparations
programmes and various kinds of institutional reforms, such as vetting and lus-
tration. A significant difference between international criminal justice and TJ
is that, while TJ is focused on the relationship of justice and accountability
measures and their role in fostering domestic transition, ICJ seeks to remove
the issue of justice and accountability from the immediate politics of transition
to the international arena.
It is also important to note that international criminal justice, as a form of
TJ, is often invoked in post-conflict settings (or during conflict) and as such, both
TJ and international criminal justice are often referred to as ‘post-conflict jus-
tice’ as well. The difference between post-conflict justice and TJ more broadly
is in the nature of transition implied, with TJ having its roots in transitions from
authoritarian to democratic rule and post-conflict justice in transitions from war
to peace. There has thus emerged an explicit link between TJ and peace building.
In his 2004 report ‘The Rule of Law and Transitional Justice in Conflict and Post-
Conflict Societies’, the UN Secretary-General formally acknowledged that some
form of justice is crucial for societies emerging from violent conflict as the task
of dealing with the legacy of past crimes is essential to building a more peaceful
future.2 Central to the international criminal justice project – and a key point of

2 UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict
Societies: Report of the Secretary General, S/2004/616 (23 August 2004).
 INTERNATIONAL CRIMINAL JUSTICE 51

contention and controversy – is the relationship to the goal of international peace

and security – both implicitly and explicitly through the UN Security Council.
The record has shown that the two goals are not mutually exclusive, but nor are
they always mutually reinforcing.

3.3 Brief overview

The origins of international criminal justice are usually traced to the post–World
War II international military tribunals at Nuremberg and Tokyo, although a much
earlier precedent is often invoked: the trial of Peter von Hagenbach, Governor
of Breisach, for crimes against ‘the laws of God and Humanity’ in 1494.3 Von
Hagenbach’s trial was notable because he was tried before an ostensibly ‘interna-
tional’ tribunal of 28 judges from across the Holy Roman Empire for a catalogue
of crimes, including murder and rape, committed during military occupation, and
his defence of superior orders was rejected.
However, it was the Nuremberg and Tokyo trials that marked a real water-
shed in international criminal justice by demonstrating that accountability was
not only desirable but that it was also feasible. It was feasible because the Allies
had achieved total victory and were in occupation of Germany and Japan. The
function of the trials was both backward- and forward-looking. As the ‘last act of
the war’, the trials publicised Nazi atrocities and justified the war effort; as the
‘first act of the peace’, the trials were supposed to pave the way for a new order.
According to US Prosecutor Robert Jackson, Nuremberg’s primary purpose was
‘to bring the weight of law and criminal sanction to bear in support of the peaceful
and humanitarian principles that the UN was to promote.’4
But the Nuremberg legacy was also problematic; indeed, for some, it pro-
voked a ‘genuine moral crisis’.5 There were a number of grounds for criticism:
chief among them that it was one-sided in that the judges were all from the victori-
ous Allied nations, and had jurisdiction only over Nazi war criminals, deliberately
avoiding scrutiny of the Allied war record, including area bombing of German
cities, unrestricted U-boat warfare, allegations of the rape of German women

3 The case was dug up by Georg Schwarzenberger in 1946, in support of a legal precedent for the
novel category of crimes against humanity. For detailed discussion, see Gregory S Gordon, ‘The
Trial of Peter von Hagenbach: Reconciling History, Historiography and International Criminal
Law’ in Kevin Jon Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials
(Oxford University Press, 2013) 13–49.
4 Cited in Rachel Kerr and Eirin Mobekk, Peace and Justice: Seeking Accountability After War
(Polity, 2007) 6.
5 Judith Shklar, Legalism: Law, Morals and Political Trials (Harvard University Press, 1964),
ibid.
52 RACHEL KERR

by Allied soldiers, and Soviet war responsibility, and that it was fundamentally
unfair in applying ex post facto law in respect of crimes against peace and crimes
against humanity, in particular. The Tokyo tribunal came under fire also and in
many ways has an even more dubious legacy.6 The accusation of ‘victors’ jus-
tice’ leveled at the tribunal by one of its judges (Pal) in a dissenting opinion has
stuck as the overarching judgement of both sets of proceedings. Its shortcomings
notwithstanding, the Nuremberg legacy was highly significant for international
criminal justice. Not only did it document the atrocities committed by the Nazi
regime, and provide an incontrovertible documentary record of the Final Solution
such that ‘there can be no responsible denial of these crimes’, it also showed that,
on occasion, international resolve could be sufficiently compelling to uphold and
enforce international law, and hold individuals criminally accountable.
After an almost 50-year hiatus, in which proposals for a permanent interna-
tional criminal court went nowhere, the Nuremberg precedent was revived with
the establishment of an ad hoc International Criminal Tribunal for the former
Yugoslavia (ICTY’). By the time the ICTY was established, the laws applied at
Nuremberg were firmly embedded in the framework of international law, with the
adoption of the 1948 Genocide Convention, the 1949 Geneva Conventions and
the adoption of the Nuremberg Principles by the UN General Assembly in 1950.
As such, the law in 1993 was deemed ‘too well settled to admit of argument’, even
if, in the interim, it had not resulted in much in the way of concrete action.
Based in The Hague, the ICTY had a mandate to prosecute persons respon-
sible for violations of international humanitarian law committed in the territory
of the former Yugoslavia since 1991, the year in which the series of conflicts that
made up the Yugoslav War began. The decision to establish ICTY was taken in
February 1993, in response to sustained reports of atrocities in Croatia and then
in Bosnia, and the Security Council established ICTY on 25 May 1993. The mode
of establishment, as a Chapter VII measure aimed at restoring international peace
and security, was highly significant, truly innovative, and had a number of impor-
tant ramifications for its mandate and operation. ‘International Judicial Interven-
tion’7 was part of a broader trend of interference in the sovereign affairs of states
in order to protect human rights – a trend that also gave rise to the doctrine of the
‘Responsibility to Protect’. While some welcomed this development, others, as
discussed below, objected on political, pragmatic and legal grounds.

6 Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the
Nuremberg Legacy (Routledge, 2008).
7 This term was first used by David Scheffer, US Ambassador at Large for War Crimes: David J
Scheffer, ‘International Judicial Intervention’ (1996) 102 Foreign Policy 32–51.
 INTERNATIONAL CRIMINAL JUSTICE 53

The establishment of ICTY was followed a year and a half later with the
establishment of another ad hoc International Criminal Tribunal, for Rwanda
(ICTR). The UN Security Council, exercising its Chapter VII powers, also
established the ICTR, but, unlike ICTY, the Government of Rwanda originally
requested it, although the government later objected to the form it took and the
fact that it was based in Arusha, Tanzania, not in Kigali. The ICTR’s mandate was
to prosecute persons responsible for violations of international humanitarian law
in the territory of Rwanda since 1994, the year in which the genocide took place.
Unlike ICTY, however, which had jurisdiction for war crimes committed in inter-
national as well as non-international armed conflict, the ICTR’s jurisdiction did
not extend to grave breaches committed in international armed conflict. Another
significant difference was that the ICTR’s Statute, created only 18 months after
the ICTY’s, nevertheless constituted a leap forward in the development of interna-
tional law by removing any required nexus with armed conflict for crimes against
humanity. Both tribunals contributed hugely to the development of international
criminal law through their extensive jurisdiction, pushing the boundaries of inter-
national humanitarian law in important respects, including extending its applica-
tion to non-international armed conflict and expanding the scope of the crime of
genocide, as well as establishing rules and procedures for the prosecution of war
crimes, crimes against humanity and genocide.8
Arguably the most significant contribution to international criminal law was in
providing a precedent, and renewed impetus, for the establishment of a permanent
International Criminal Court (ICC). This was unforeseen; as David Forsythe noted,

What started in 1993 as mostly a public relations ploy, namely to create an inter-
national tribunal to appear to be doing something about human rights violations in
Bosnia without major risk, by 1998 had become an important global movement for
international criminal justice.9

The ICC was established in July 1998 with the adoption, by 120 votes to 7 (and
21 abstentions) of the Rome Statute of the International Criminal Court, and
came into force four years later, with the requisite 60th ratification.10 Like the

8 For discussion of the Tribunals’ judicial legacy, see ‘A Compendium on the Legacy of the ICTR
and the Development of International Law’ <https://unictr.irmct.org/en/compendium-legacy-ictr-
and-development-international-law; and ICTY Legacy Dialogues <www.icty.org/en/features/
icty-legacy-dialogues>.
9 David P Forsythe, Human Rights in International Relations (Cambridge University Press,
2000) 211.
10 As of October 2019, there were 122 State Parties to the ICC <https://asp.icc-cpi.int/en_menus/asp/
states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx>.
54 RACHEL KERR

ICTY, the ICC is based in The Hague, also home to the International Court of
Justice (ICJ).
The Rome Statute was the product of protracted negotiations, followed by
five weeks of intensive negotiations in Rome, and reflected the interests of key
groups of states, in particular the so-called Like-Minded Group (LMG), led by
Canada and Australia. One significant feature of the negotiations at Rome was the
influence of a transnational advocacy network of NGOs on the LMG in particu-
lar. The most contentious issues were the applicable law (in particular the crime
of aggression), the role and responsibilities of the prosecutor and the Court’s
relationship with the Security Council. The LMG favoured a strong court with
an independent prosecutor, in direct contrast to the P5 members of the Security
Council who wanted the Court to be subordinate to it. A compromise (the so-
called Singapore compromise) was found in the form of Articles 13 and 16 of the
statute, which provided for the Security Council to refer cases to the Court and
to defer investigations if a deferral was in the interests of international peace and
security. The independence of the prosecutor was also upheld, with the power to
initiate investigations on his own initiative (proprio motu), subject to the jurisdic-
tional criteria set out in the Statute.
This ‘uncomfortable amalgam of near irreconcilable positions’ was possibly
only because the UK and France voted with the LMG, largely because not to do
so would scupper the whole endeavour, to which both were strongly committed
in principle. The US, meanwhile, voted against, along with six others (Libya,
Israel, Iraq, China, Syria and Sudan), although it later signed up as one of the last
acts of the outgoing Clinton Administration, in January 2002. The US position
on the ICC has fluctuated since its establishment, from outright opposition and
attempts to undermine the Court by later ‘unsigning’ the Statute, passing the so-
called Hague Invasion Act to allow for the ‘rescue’ of any US citizens detained by
the Court, and pressuring others to resist cooperation where US citizens might be
concerned, to a later policy of trying to control it via Security Council referrals, to
a degree of accommodation, and finally back to outright opposition and pledges
to destroy the Court.11
Although there are circumstances in which a non-party such as the US might
find its citizens brought before the Court (for example, if the Prosecutor launched
an investigation into a situation in a State Party, under its territorial jurisdiction,
but in which US citizens were involved – as she sought to do in Afghanistan,

11 For discussion, see Dapo Akande on EJIL Talk: The Bolton Speech: The Legality of US Retal-
iatory Action Against Judges and Officials of the International Criminal Court? <www.ejiltalk.
org/the-bolton-speech-the-legality-of-us-retaliatory-action-against-judges-and-officials-of-the-
international-criminal-court/>.
 INTERNATIONAL CRIMINAL JUSTICE 55

discussed below), the constraints on jurisdiction connected with the ICC’s com-
plementarity mandate make it unlikely. The ICC has jurisdiction over individuals
(not states) for genocide, crimes against humanity and war crimes. The crime of
aggression is also within the remit of the Court, but is heavily circumscribed.12 As
with the ad hoc tribunals, this includes those directly responsible for committing
the crimes as well as others who may be indirectly responsible, for example by
aiding and abetting or by failing to prevent and punish a crime under the jurisdic-
tion of the Court.
Significantly, however, the ICC does not exercise universal jurisdiction –
i.e., it cannot exercise jurisdiction against anyone, anywhere, for international
crimes.13 As a treaty-based court, it has jurisdiction only over those States that
have expressly consented. As such, the ICC may only exercise jurisdiction on
the basis of: a) nationality – the accused is a national of a State Party or a State
otherwise accepting the jurisdiction of the Court; or b) territoriality – the crime
took place on the territory of a State Party or a State otherwise accepting the
jurisdiction of the Court. The only circumstance in which the Court’s jurisdiction
might extend beyond these bases is when a situation is referred by the Security
Council, in which case the ICC has jurisdiction irrespective of the nationality of
the accused or the location of the crime, but limited to the terms of the referral.
The Court’s jurisdiction is also limited to events taking place since 1 July 2002,
the date on which the Statute came into force, or, if a State joins the Court after 1
July 2002, the Court has jurisdiction only after the Statute entered into force for
that State, unless otherwise agreed.
Even where the Court has jurisdiction, it will not necessarily act. The prin-
ciple of ‘complementarity’ provides that certain cases will be deemed inadmis-
sible. Because the ICC’s relationship to national courts is horizontal rather than
vertical, as was the case with ICTY and ICTR, it can only exercise jurisdiction
in cases where national courts are either unwilling or unable to do so. The ICC
thus plays a residual role, whereas national courts are the fora of first resort. It is
in this context that the Prosecutor of the Court has maintained that the measure
of success for the Court would be an absence, rather than a multitude of trials.
There are a number of issues with complementarity, which we will explore in
more depth below; briefly, it potentially involves the Court in determinations as
to the adequacy of national judicial systems and presents a problem for the Court

12 The Court may exercise jurisdiction over the crime of aggression, subject to a decision to be taken
after 1 January 2017 by a two-thirds majority of State Parties and subject to the ratification of the
amendment concerning this crime by at least 30 State Parties.
13 For discussion of universal jurisdiction, see Chapter 2 in this volume, Andrew G Reiter, ‘The
development of transitional justice’.
56 RACHEL KERR

in obtaining cooperation – such that, in cases where it has deemed that a State
is unwilling to prosecute, it would seem reasonable to assume that the State in
question would also be unwilling to cooperate. The other set of constraints on
the Prosecutor in determining where to exercise jurisdiction are the threshold of
‘sufficient gravity’ and the ‘interests of justice’. This both allows for considerable
discretion and, as discussed below, also exposes the Prosecutor to criticism, given
that neither threshold is easily quantifiable.
The other major development in the international criminal justice project was
the establishment of ‘internationalized’ or ‘hybrid’ courts, with a mix of interna-
tional and domestic law and personnel, such as the Special Court for Sierra Leone
(SCSL), established in 2002, and the Extraordinary Chambers in the Courts of
Cambodia (ECCC), which began operations in 2006, or domestic courts with ele-
ments of internationalisation such as the insertion of International Judges and
Prosecutors (IJPs) in selected categories of cases in Kosovo (Regulation 64 Pan-
els) and specially constituted internationalised courts established within a domes-
tic judicial system, as in Bosnia (Bosnian War Crimes Chambers, or BWCC) and
in Timor-Leste (Serious Crimes Panels of the District Court of Dili). This new
model of international criminal justice was in some ways a reaction to the per-
ceived failings of the ad hoc tribunals, in particular relating to their huge cost,
and their failure to engage local constituencies. For example, the SCSL, having
learned from ICTY’s mistakes, made a more concerted effort to involve the popu-
lation by way of outreach activities and benefited from its domestic location, in
Freetown (rather than The Hague), yet it too found it difficult to dispel all of the
misperceptions surrounding its work. Having fallen out of vogue with the estab-
lishment of a permanent court, the hybrid tribunal experienced something of a
revival in 2015 with the establishment of a cluster of hybrid courts. In April 2015,
a Special Criminal Court was established in the Central African Republic (CAR),
involving a mix of domestic and international staff, but set within the domestic
judicial system of CAR. Also in 2015, former Chadian President Hissène Habré
was put on trial at the Extraordinary African Chambers in Senegal, a hybrid court
set up with the African Union. Finally, the inelegantly titled Kosovo Relocated
Specialist Judicial Institution was set up in The Hague to prosecute crimes com-
mitted in the period 1998–2000 in Kosovo, filling a gap left by the ICTY and
earlier hybrid courts in Kosovo.

3.4 Aims and objectives

What, and whom, is international criminal justice for? The preamble to the Rome
Statute states the purpose of the ICC thus: ‘To put an end to impunity for the
perpetrators of these crimes and thus to contribute to the prevention of such
crimes.’ This translates into primary goals of accountability and deterrence.
 INTERNATIONAL CRIMINAL JUSTICE 57

These purposes are purported also to contribute to broader goals of securing

peace and promoting reconciliation in societies riven by violent conflict and
egregious violations of human rights. Peace, justice and reconciliation, it was
argued, go hand in hand.
The establishment of the ad hoc tribunals drew an explicit link between inter-
national criminal justice and international peace and security through the use of
a new tool, international criminal justice. The purpose of international criminal
justice is also to provide a forum for retributive justice on behalf of the victims,
and to establish individual responsibility, not collective guilt. In that sense, inter-
national criminal justice is as much for individual victims and survivors as it is
for the international community writ large. But some of these goals, and purposes,
may be irreconcilable.14
In particular, the integration of transitional justice – of which international
criminal justice is one of a range of tools – into peace-building activities was
accompanied by a significant expansion and recasting of the goals ascribed to it
and led to considerable conceptual and analytical muddiness, where goals of tran-
sitional justice associated with transitions to democracy were conflated with goals
associated with transitions to peace. This created a dilemma in which inflated
expectations of what international criminal justice might realistically accomplish
contrasted with the ever more challenging settings in which it was implemented,
in societies riven by decades of conflict and under-development with urgent secu-
rity and development needs.
Another problematic aspect was the privileging of justice as an end in and of
itself. This, according to Leslie Vinjamuri and Jack Snyder’s analytic framework,
is the approach espoused by ‘legalists’ who advocate transitional justice based on
a ‘logic of appropriateness.’15 For legalists, there are important moral and legal
imperatives to pursue some form of accountability. The moral imperative stems
from a sense of outrage at the widespread and egregious atrocities committed dur-
ing many contemporary wars, not merely an unfortunate by-product, but in many
cases of genocide and ethnic cleansing, these crimes form part of a concerted
strategy. The legal imperative is derived from international treaties and customary
international law, specifically the obligation to prevent and punish war crimes,
crimes against humanity and genocide.

14 Bronwyn Leebaw, ‘The Irreconcilable Goals of Transitional Justice’ (2003) 30(1) Human Rights
Quarterly 95–118.
15 Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of
International Justice’ (2003–2004) 28(3) International Security 5–44.
58 RACHEL KERR

Vinjamuri and Snyder identify a second set of ‘pragmatists’, who advocate

transitional justice strategies on the basis of a ‘logic of consequences.’16 Notwith-
standing any moral and legal imperative, addressing past violations makes ‘good
political sense’. Pragmatists stress the various means through which transitional
justice can contribute to restoring peace, such as establishing individual account-
ability instead of collective guilt, and thus ending ‘cycles of violence’ from one
generation to the other, deterring future violations by demonstrating an ‘end to
impunity’, establishing a historical record that cannot easily be denied, promoting
reconciliation, providing victims with a forum and means of redress, removing
and/or side-lining perpetrators, reinforcing and building respect for the rule of
law, and capacity-building.17
The goal of accountability is linked to the oft-quoted desire to ‘end impunity’
for massive human rights abuses. It operates in two ways. The first is stressed by
proponents of criminal trials, and focuses on the goal of establishing individual
criminal responsibility, thus making an individual (and not a group) accountable.
By individualising guilt, responsibility is removed from the collective, which can
be helpful, it is argued, in situations where blame might be placed on, for exam-
ple, an entire nations or ethnic groups, leading to ‘cycles of violence’.
Ensuring accountability and ‘ending impunity’ is also closely linked to the
purported deterrent function of transitional justice. Proponents of criminal trials,
in particular, argue that they can play an important role in deterring future abuses.
Although there is some anecdotal evidence that investigations and prosecutions
underway in some cases may have had a deterrent effect, there is little to show that
it has had any more than a very marginal impact, which is not surprising, given the
huge gaps in enforcement.18
Another claim that is made of international criminal justice is that it contrib-
utes to the establishment of a historical record, or a shared narrative, which can
comprise a detailed account of the pattern of abuses and the causes of the conflict.
Criminal trials construct this record through the introduction of evidence and in
the final judgment, but this form of creating history is deeply problematic, as
Richard Ashby Wilson has shown, especially because the goal of a trial is to find
the guilt or innocence of an individual accused, which doesn’t always translate
well, especially if narratives are contested.19 As has been clear in the former

16 Ibid.
17 See Kerr and Mobekk, n 4.
18 L Vinjamuri, ‘Deterrence, Democracy, and the Pursuit of International Justice’ (2010) 24 Ethics &
International Affairs, 191–211 <https://doi.org/10.1111/j.1747-7093.2010.00256.x>.
19 Richard Ashby Wilson, Writing History in International Criminal Trials (Cambridge University
Press, 2011).
 INTERNATIONAL CRIMINAL JUSTICE 59

Yugoslavia, judgments and trial proceedings have been interpreted in particular

ways, mediated by narratives of denial and victimhood to the extent that some of
ICTY’s work can be said to have been ‘lost in translation’.20
Finally, the capacity of international criminal justice to promote reconcili-
ation is regarded as one of its key contributions but it is also one of the most
contentious claims. Some have argued that expanding the mandate beyond justice
to include reconciliation and peace is stretching the capacity of criminal justice
too far, whereas others argue that if international criminal justice cannot bring
reconciliation, what is the point of it? Part of the difficulty stems from the fact that
reconciliation, like ‘justice’ and ‘peace’, is a contested concept. It could be taken
to mean individual reconciliation, with one’s own past, or with others, or group
and/or societal reconciliation. It may require active repentance from perpetrators
seeking forgiveness, or may occur in the absence of such acts, as a result of pro-
cesses of reintegration and reformation. Like peace, also cast as both a proximate
(ending violent conflict) and final (sustainable peace) goal, it is not an end-state
but rather a point on a spectrum. Moreover, the goal of retribution or redress
stands in contrast to the goal of forgiveness central to interpersonal reconciliation.

3.5 Points of contention and controversy

As the above discussion illustrates, international criminal justice was not with-
out its critics. Some challenged ‘international judicial intervention’ on political
and pragmatic grounds, arguing that it was too selective, politically motivated,
potentially destabilising and a waste of scarce resources.21 Others argued that it
unreasonably prioritised retributive over restorative justice, and international over
local interests (including those of the victim/survivor communities).
These points of contention have been vigorously debated in the literature on
international criminal justice. A recurring theme has been the so-called peace vs
justice debate, which can be characterised in a number of different ways. At its
core, it boils down to a contest between principle and pragmatism in so far as it
revolves around whether the goals of international criminal justice – ensuring
accountability and ending impunity – are sufficiently compelling in their own
right to warrant mounting international criminal trials, or whether they should
be considered as, not absolute, but relative goals in the political context in which
international criminal justice operates at both the international and domestic level.

20 Rachel Kerr, ‘Lost in Translation: Perceptions of the ICTY in the Former Yugoslavia’ in James
Gow, Rachel Kerr, and Zoran Pajic (eds), Prosecuting War Crimes: Lessons and Legacies of the
International Criminal Tribunal for the Former Yugoslavia (Routledge, 2013).
21 Snyder and Vinjamuri, n 15.
60 RACHEL KERR

Pragmatic critics argued that transitional justice was at best ineffective, and
at worst, detrimental to the task of making and building peace. There is a risk that
pursuing justice risks destabilising a fragile peace by targeting the very people
on whom peace relies, leading to further violence and abuses. For a new regime,
moreover, addressing the past could upset a relatively fragile new order. In post-
conflict settings, the dilemma is acute in situations where the very people being
pursued to account for their crimes are those on whom a nascent peace agree-
ment depends. This dilemma was cast in stark terms in relation to the former
Yugoslavia, where one critic warned that pursuing justice ‘risks making today’s
living the dead of tomorrow’ by prolonging the conflict.22 In a country engaged
in negotiating the end of a conflict, especially one that has raged for years or
even decades, the threat of prosecution might prolong or even reignite conflict.
This was the crux of the criticism levelled at the ICC when it refused to lift its
indictment of Lord’s Resistance Army leader Joseph Kony, in order to facilitate
the 2008 Juba peace talks.
In addition to concerns about the potential risks of pursuing international
criminal justice in fragile situations, critics point to its inherent shortcomings,
both in terms of specific approaches and more generally questioning whether
there is any appropriate way of addressing ‘radical evil’.23 Advocates and critics
debate the relative merits of different approaches, setting retributive processes
such as trials up against restorative processes such as truth commissions and inter-
national mechanisms versus domestic/cultural ones, often underpinned by the
conviction that local/cultural approaches are somehow inherently superior. Some
also stressed the risk of retraumatising victims who would prefer simply to forget
and move on, or heightening tensions and delaying reconciliation. Rather than
being cathartic for victims, testifying at courts and truth commissions can lead to
a sense of revictimisation. Others argued that pursuing justice diverts resources
from other pressing needs. In a post-conflict setting with many urgent priorities
and pressing needs, ‘justice is a luxury’.24 A trenchant criticism of international
criminal justice is that it does not represent good value for money. It ought to cost
less and deliver more.25

22 Comment, ‘Human Rights in Peace Negotiations’ (1996) 18(2) Human Rights Quarterly 249–258.
23 Carlos Santiago Nino, Radical Evil on Trial (Yale University Press, 1998).
24 This view was cited by the International Centre for Transitional Justice in 2006, addressing the
public perception that the cost of TJ is high. See Rama Mani, ‘Editorial: Dilemmas of Expanding
Transitional Justice, or Forging the Nexus between Transitional Justice and Development’ (2008)
2 International Journal of Transitional Justice 257.
25 Ibid.
 INTERNATIONAL CRIMINAL JUSTICE 61

Finally, a major challenge to international criminal justice was raised on

methodological grounds, based on a lack of evidence that it actually ‘worked’.
In 2008, the Centre for International Policy Studies (CIPS) at the University
of Ottawa conducted a comprehensive review of the transitional justice field,
and found that, to date, there was insufficient evidence to support any strong
claims about positive or negative impacts.26 As such, they echoed the views
of Harvey Weinstein and Eric Stover who, some years earlier, had argued that
‘the primary weakness of writings on justice in the aftermath of war and politi-
cal violence is the paucity of objective evidence to substantiate claims about
how well criminal trials or other accountability mechanisms achieve the goals
ascribed to them’.27 Moreover, as the CIPS report acknowledges, most of what
we did know about effects of transitional justice came from countries that expe-
rienced political transitions from authoritarianism to democracy. International
criminal justice efforts in post-conflict societies, which are likely to have quite
different experiences, may have little in common.28 Many echoed CIPS’ call for
more empirical research to move from a ‘faith-based’ to a ‘fact-based’ discus-
sions of impacts, and the field has responded with an array of empirical stud-
ies, ranging from large-N quantitative studies, such as that conducted by Tricia
Olsen, Leigh Payne and Andrew G Reiter, to small-N comparative studies of
individual countries, mapping impact on judicial and security sector reform, or
human rights legislation, to single ethnographic studies of particular communi-
ties. They all have their drawbacks: the large-N studies mask the complexity of
post-conflict peace and justice, and leave us asking whether we are looking at a
causal link from transitional justice to human rights enforcement, a causal link
in the other direction or simply correlation. Meanwhile, the highly contextual
and detailed studies, whilst instructive on the individual cases, resist generalisa-
tion or extrapolation.29

26 Oskar NT Thoms, James Ron, and Roland Paris, ‘State-Level Effects of Transitional Justice: What
Do We Know?’ (2010) 4 International Journal of Transitional Justice 329–354.
27 Eric Stover and Harvey Weinstein, My Neighbour, My Enemy: Justice and Community in the After-
math of Mass Atrocity (Cambridge University Press, 2008) 4.
28 Thoms, Ron, and Paris, n 26.
29 For example, James L Gibson, ‘The Contributions of Truth to Reconciliation: Lessons
From South Africa’ (2006) 50(3) Journal of Conflict Resolution 409–432 <https://doi.
org/10.1177/0022002706287115>; Kathryn Sikkink, The Justice Cascade: How Human Rights
Prosecutions are Changing World Politics (Norton, 2011); Tricia Olsen, Leigh Payne, and Andrew
Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (USIP, 2010).
62 RACHEL KERR

Case study A: international judicial intervention – the ICTY

The dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) in 1991–
1992 was the proximate cause of a series of conflicts in the territory that,
grouped together, made up the Yugoslav War. The conflict began in Slovenia in
June 1991, following that country and Croatia’s declarations of independence,
moved swiftly to Croatia, and entered its bloodiest and longest phase in Bosnia
in April 1992. The war in Bosnia was finally brought to an end with the Day-
ton Peace Agreement, in November 1995. A defining element of the war in the
Croatian and Bosnian theatres was the practice of ‘ethnic cleansing’, involv-
ing mass forced population transfers to detention centres, in which detainees
were subjected to torture, rape, sexual assault and other inhuman treatment.
In Bosnia alone, it is estimated that around 100,000 people were killed, as many
as 8,000 in a matter of days in Srebrenica in July 1995. The violence in Kosovo
in 1998–1999 was the Yugoslav War’s ‘final act’.
The establishment of the International Criminal Tribunal for the former
Yugoslavia (ICTY) was one of a series of measures taken by the international
community, and it is notable because it was intended to both contribute to ending
the conflict – the Tribunal was established in the midst of the worst of the vio-
lence, in May 1993 – and to restore peace afterwards. In establishing the ICTY as
an enforcement mechanism under Chapter VII of the United Nations Charter, the
Security Council invoked international criminal justice as a tool of international
peace and security. Its mandate was to deliver justice, deterrence and peace.
The ICTY dominated the landscape of transitional justice in the region, but
after almost 25 years of operation, what has been its contribution? With regard to
the first of its goals, delivering justice, the Tribunal can boast tremendous suc-
cess. When it closed its doors in 2017, the Tribunal had concluded proceedings
for all 161 of its accused. Among its indictees were those at the highest levels
of political and military responsibility, including the Bosnian Serb political and
military leaders Radovan Karadžić and Ratko Mladić, and the former president
of Serbia (and the FRY), Slobodan Milošević. Its cases reflect the broad sweep
of crimes, targeting all groups, and addressing the most notorious examples of
ethnic cleansing and even genocide.
A residual impact of this record of judicial success was its impact on
the peace process. The Tribunal made a pragmatic contribution through the
indictment of certain key individuals (including the Bosnian Serb political and
military leadership), which, by ensuring their removal from political and public
life, created space for change.30 The Tribunal also had an impact on rule of
law and judicial reform in the region, acting as a catalyst for the creation of
specialised war crimes courts in Bosnia, Croatia and Serbia, and transferring

30 Although there was unease at the time about the wisdom of such a move, in the end the publica-
tion of indictments against Radovan Karadžić and Ratko Mladić in July 1995 was instrumental
in allowing for a peace agreement to be concluded because it effectively excluded them from the
negotiations that led to the Dayton Peace Accords. See Rachel Kerr, The International Crimi-
nal Tribunal for the Former Yugoslavia: Law, Diplomacy and Politics (Oxford University Press,
2004).
 INTERNATIONAL CRIMINAL JUSTICE 63

evidence and disseminating knowledge and jurisprudence to those courts.

Lastly, the Tribunal cites its wider international impact among its achieve-
ments. Most significant is its role as a precedent, proving that international
criminal justice is viable and leading to the establishment of other ad hoc
international tribunals – and, in July 1998, a permanent International Criminal
Court. It has also pioneered a number of significant developments in interna-
tional criminal law and procedure.
But what of the Tribunal’s contribution to building peace? This aspect of the
Tribunal’s legacy is more ambiguous and difficult to assess. As discussed above,
advocates of war crimes trials argued that strategies of ensuring individual
accountability (rather than collective guilt) and establishing a historical record
would help facilitate processes of reconciliation and thus contribute to building
lasting peace. On this measure, the record of the Tribunal is less impressive:
while some small signs of progress exist, narratives of denial and victimhood
remain deeply entrenched and attitudes and perceptions of the Tribunal in the
region remain largely negative.31 In 2016, Marko Milonović concluded his ‘antici-
patory’ post-mortem of the ICTY with the finding that

denialism and revisionism are rampant in the former Yugoslavia. For

example, twenty years on, barely one-fifth of the Bosnian Serb popula-
tion believe that any crime (let alone genocide) happened in Srebrenica,
while two-fifths say that they never even heard of any such crime.32

Although clearly there is some way to go before the legacy of these trials can be
deemed to have played a truly significant role in the process of building lasting
peace in the region, there is room for cautious optimism. In particular, the scope
of the Tribunal’s outreach programme transformed radically from its first falter-
ing steps, so that it now has the potential to foster real critical engagement with
the Tribunal’s work. Such a result is critical because unless perceptions of the
Tribunal shift, its legacy will suffer the consequences.

Case study B: hybrid justice – the Special Court for

Sierra Leone
The civil war in Sierra Leone (1991–2002) was well documented for its ‘breath-
taking malevolence’ and ‘unspeakable brutality’. In a decade of conflict, it is esti-
mated that as many as 75,000 civilians were killed and 500,000 were displaced.
Civilians were directly targeted with tactics such as amputations of hands, arms,
legs and feet, sexual violence, mutilation, forced marriage, forced recruitment
of children and wanton destruction of villages and towns. Even before a peace
(continued)

31 Kerr, ‘Lost in Translation’, n 20.

32 Marko Milanović, ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Post-
mortem’ (2016) 110(2) American Journal of International Law 233–259 <https://doi.org/10.5305/
amerjintelaw.110.2.0233>.
64 RACHEL KERR

(continued)
agreement was signed, the nature and extent of the atrocities committed was
such that there were demands for some form of accountability. It was felt that
without the designation of responsibility – at all levels – and a public acknowl-
edgement of their roles, social structures would remain unsettled and public
faith in the solidity of the peace would be undermined. However, the Sierra Leone
judicial system, destroyed by the war and by years of corruption and neglect,
lacked the capacity to deal with these crimes.
In June 2000, the President of Sierra Leone, Dr Ahmad Tejan Kabbah, wrote
to the Secretary-General asking for UN assistance to set up a court, and on 16
January 2002, an agreement was signed between the UN and the Government of
Sierra Leone establishing the Special Court for Sierra Leone in Freetown. The
Court’s mandate was to prosecute those on all sides – including government
forces and the Civil Defense Forces (CDF) – who bore the ‘greatest responsi-
bility’ for war crimes, crimes against humanity and other violations of interna-
tional humanitarian law committed in Sierra Leone since 30 November 1996 (the
date of the Abidjan Accord). The Special Court was the first ‘hybrid’ international
criminal court to be established – ‘hybrid’ in the sense that it involved a mixture
of international and domestic law and personnel.
Transitional justice in Sierra Leone was also ‘hybrid’ in the sense that the
Special Court operated alongside a Truth and Reconciliation Commission, which
occupied the site next door, in Freetown, and was established following the 1999
Lomé Accords, which had offered amnesty to Revolutionary United Front (RUF)
leaders, including Foday Sankoh. As such, it was a departure from the model of
the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) on the
one hand, and the ICC on the other, and was welcomed by many as a potentially
more effective and efficient form of international criminal justice. But the real-
ity was that both the Truth and Reconciliation Commission (TRC) and the Court
were under-funded and their operation alongside each other was not without its
problems, manifested in legal and political wrangling.
In total, the Court brought cases against 13 accused. Two were subsequently
withdrawn following the deaths of the accused (Foday Sankoh; Sam Bockarie,
leader and battlefield commander of the RUF) and Johnny Paul Koroma (leader
of the Armed Forces Revolutionary Council, or AFRC) all died before they could
face justice). The trials of three former leaders of the AFRC, two members of
the CDF and three former leaders of the RUF were completed in Freetown. In
April 2012, former President of Liberia Charles Taylor was convicted on all 11
counts of aiding and abetting the commission of crimes against humanity and
war crimes in Sierra Leone during the period 1996–2002.
The case had a significant role in establishing a record of events. The judge-
ment in the Taylor case put on record the litany of crimes committed by the RUF
and the AFRC, both of which received material support from Taylor as leader of
the National Patriotic Front of Liberia (NPFL) and as president of Liberia. These
crimes included murder, rape, sexual slavery, outrages on personal dignity, con-
scription and enlistment of child soldiers, violence to life, health and physical
or mental well-being, and other inhumane and cruel treatment. The Taylor ver-
dict, in particular, provided some form of redress for the victims of those crimes,
and there is some evidence that it has had greater impact for victims of gender-
based crimes. According to one observer, the Special Court’s judgements, and
 INTERNATIONAL CRIMINAL JUSTICE 65

the Charles Taylor trial in particular, together with the report of the Sierra Leone
TRC, have helped raise awareness in Sierra Leone about the forms of gender-
based violence that took place during the conflict, and this increased attention,
coupled with local non-governmental activism, has helped in efforts to secure
gender-sensitive law reform, although there is still a long way to go.
But there are also reasons to be circumspect regarding the impact of transi-
tional justice in Sierra Leone. For some, the fact that Taylor was convicted on the
lowest threshold of responsibility (aiding and abetting rather than directly order-
ing or participating in a joint criminal enterprise) diluted his individual account-
ability. For others, the trial was viewed as part of an enterprise involving the
imposition of Western values on African states and a form of ‘victor’s justice’ (tied
to criticism of the ICC in Africa). This was the critique with which Taylor’s sup-
porters in Liberia greeted the verdict, echoed by Taylor in his own statement (in
which he accused the Court of being manipulated to suit US interests). In Sierra
Leone, although there was jubilation, there were also mixed feelings. While some
expressed a wish to move on and the need to focus on other pressing issues, oth-
ers expressed disappointment that the trial (which was moved to The Hague for
security reasons) had not taken place on Sierra Leonean soil.
These sentiments reflected the conclusions of an evaluation of the impact
of the Special Court’s outreach programme. In spite of much effort having been
expended (especially compared to the early stilted efforts of the ICTY and ICTR),
many Sierra Leoneans did not report a sense of engagement with, and owner-
ship of, the process.33 As was the case in the former Yugoslavia, there was dis-
sonance between local and international expectations of the Court’s contribution
to restoration of peace and justice in Sierra Leone. Again, the Court’s ability to
communicate knowledge and understanding about its mandate and processes
was somewhat stymied by a relatively hostile and, in some cases, sensationalist,
domestic news coverage.
There was also confusion surrounding the respective roles of the Court
and the TRC, and a lack of coordination with other aspects, such as DDR and
judicial reform, and wider socio-economic problems also became intertwined
with issues of the Court’s legacy and affected perceptions. In a country ranked
as the second poorest in the world (UNDP HDI), where literacy levels were low,
corruption was endemic, and the justice system was defunct, the demands
on international donors and on civil society organisations were high. Socio-
economic inequality and corruption, as well as a lack of faith in the rule of
law, were at the root of the conflict. Although the Truth Commission made a
number of very far-reaching recommendations addressing these two factors,
most of them have yet to be followed up. A recurrent theme with regard to both
mechanisms was that they represented a ‘missed opportunity’ to address some
of these structural causes of violence.

33 Jessica Lincoln, Transitional Justice, Peace and Accountability: Outreach and the Role of Interna-
tional Courts after Conflict (Routledge, 2011).
66 RACHEL KERR

3.6 Current position

With the ICTR and ICTY now closed, the focus of international criminal justice
has shifted firmly to the ICC. As noted above, the decision to establish a perma-
nent International Criminal Court (ICC) was made at a diplomatic conference in
Rome in July 1998, and the Court was established in The Hague four years later,
upon the 60th ratification of states party to its statute (the Rome Statute). It was a
compromise between competing visions of what the Court should be, and this had
implications for how well it has been able to function. For some, like the US, the
Prosecutor had too much power, whereas for others its subordination to the Secu-
rity Council via the ‘Singapore Compromise’ was a clear signal that when it came
to it, politics would triumph over law. In the event, it has had a mixed record,
which is probably a more accurate reflection of the more nuanced and complex
relationship of law and politics that the Court has to navigate.
As of the time of writing, in October 2019, the ICC had initiated investigations
in 11 situations. Five of these were the result of state referrals (Uganda, Demo-
cratic Republic of Congo [DRC], two in the CAR and Mali), two were referred by
the Security Council (Darfur, Sudan, and Libya) and the Prosecutor had opened
investigations proprio motu in four (Kenya, Ivory Coast, Georgia and Burundi). In
addition, the Prosecutor was conducting preliminary examinations in ten situations:
Afghanistan, Bangladesh/Myanmar, Colombia, Nigeria, Guinea, Iraq (in respect of
UK nationals), Palestine, Philippines, Ukraine and Venezuela (preliminary exami-
nations had been conducted and formally closed in Gabon, Honduras, Registered
Vessels of Comoros, Greece and Cambodia, Republic of Korea and Venezuela).
Of the 27 indicted persons on the Court’s docket, three were at the repara-
tions stage, following conviction of the accused (Al-Mahdi – Mali, Katanga and
Lubanga – DRC); two were at the appeals stage (Blé-Goudé and Gbagbo – Ivory
Coast, and the Bemba et al case for contempt of court was also at the appeals
stage); and 13 were closed: Ali, Kenyatta, Kosgey, Muthaura, Ruto and Sang –
Kenya; Abu Garda and Mohammed Jerbo Jamus (presumed dead) – Darfur,
Sudan; Gaddafi and Al Senussi – Libya; Odhiambo, Lukwiya – Uganda; Bemba –
CAR (acquitted); Mbarushimana – DRC; Chui – DRC (acquitted). A further two
were on trial: Ntaganda – DRC (declared guilty in July 2019; awaiting sentence);
and Ongwen – Uganda). Five were at the pre-trial stage, including Saif Al Islam
Gaddafi – Libya; and Simone Gbagbo (Cote d’Ivoire). Twelve remained at large.
More than 20 years since the Rome Conference, and after 17 years of opera-
tion, what are we to make of this record, and what are the ICC’s prospects, and
that of international criminal justice?
On the one hand, talk of an ICC in ‘crisis’, which began to emerge around
2015, following the collapse of the Kenya case, might be overstated, or at least
wrong-headed. As Mark Kersten has argued, the ICC is, to some extent, always
 INTERNATIONAL CRIMINAL JUSTICE 67

‘in crisis’ to the extent that it must always struggle to exist and to operate in a
world dominated by state interests and in the midst of international politics that
do not always coincide with the interests and requirements of the ICC in pur-
suing its justice mandate.34 As well as failures in conception, however, critics
point to a failure in leadership early on,35 and the ICC’s low conviction rate (only
a handful of trials have completed), its inability to obtain custody of Sudanese
President Omar Al Bashir, seen in June 2015 flouting his arrest warrant with the
acquiescence of South Africa, a State Party to the Rome Statute, as well as the
collapse of the Kenya cases, most notably against President Uhuru Kenyatta. In
the Uganda case, only one defendant is in custody; the other two, Joseph Kony
and Vincent Otti, remain at large. The ICC was also involved in a tussle with
the Libyan authorities over the case of Abdullah Al-Senussi, which was declared
inadmissible at the ICC due to proceedings underway at the national level. And
it has been accused of being too distanced – geographically, philosophically and
procedurally – from the constituencies it was supposed to serve.36
Supporters of the ICC, including its first Chief Prosecutor, Luis Moreno
Ocampo, refuted these criticisms, arguing that the inability of the Court to influ-
ence political decisions, and the fact that it is subject to them, should not be taken
as a sign of weakness, and that, instead, we should look to its symbolic and practi-
cal function as an instrument of positive complementarity. That is, the fewer cases
on the ICC docket, one assumes, the more that appear in national courts where
impunity is combatted more effectively. So-called positive complementarity is
the rationale for keeping open the preliminary examination in Colombia, as a way
of influencing, and preventing the closing down, of domestic proceedings there.
Moreover, the opening (and re-opening) of preliminary examinations in Palestine,
Afghanistan, Ukraine and Iraq/UK demonstrated the Court’s willingness to delve
into situations involving potential investigations of the most powerful states,
including three of the Permanent Five Security Council members (UK, US and
Russia), potentially allaying some of the criticism that it was unduly focused on
Africa and thus an instrument of neo-imperialism for the West.
It remains to be seen what the outcome of these examinations will be, and how
the ICC will adapt in the years to come. Notwithstanding trenchant criticisms, the

34 Mark Kersten, ‘Yes, the ICC is in Crisis. It Always Has Been’ Justice in Crisis (online), 24 Feb-
ruary 2015 <http://justiceinconflict.org/2015/02/24/yes-the-icc-is-in-crisis-it-always-has-been/>.
35 Makau Mutua, ‘The International Criminal Court: Promise and Politics’ (2015) 109 Proceedings
of the Annual Meeting (American Society of International Law) 269–272 <https://doi.org/10.5305/
procannmeetasil.109.2015.0269>.
36 Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics
(Cambridge University Press, 2018).
68 RACHEL KERR

ICC’s recent move to a shiny new building in The Hague, together with its recent
activity, is testament to both an emboldened Chief Prosecutor in Fatou Bensouda
and a Court that considers itself a permanent fixture on the international political
scene. International criminal justice, it seems, is here to stay – for now, at least.

3.7 Summary and conclusion

The experiences of the past 25 years of international criminal justice have been
instructive in establishing best practice and – perhaps especially important – in
identifying what not to do. Each new initiative was welcomed as offering signifi-
cant improvements on the last, from the ‘shiny new hammer’37 of the ICTY to the
‘magic bullet’ of the ICC. Meanwhile, high-profile trials of notorious defendants
such as Slobodan Milosevic at the ICTY, Charles Taylor at the Special Court and
Saddam Hussein at the Iraqi High Tribunal demonstrated the pitfalls of allowing
a soapbox from which these former leaders can denounce the international com-
munity, as well as highlighting the impossibility of entirely removing politics
from the legal process. The ICC itself suffered from consistent and sustained
criticism, including allegations of politicisation, of meddling in peace deals and
of being no more than another instrument of Western imperialism in Africa.38
Perhaps the most significant and sustained criticism, however, is that inter-
national criminal justice has failed to deliver on its goals. International courts
have contributed enormously to the development of international criminal
law through their now extensive jurisprudence and the trials themselves have
ensured accountability for certain crimes, but their legacy is less auspicious in
terms of impact on broader goals of peace and reconciliation. On the other hand
it may be unrealistic to expect them to do so. After all, ‘If there is any moral
in the story […] it is that international criminal law cannot itself substitute for
the ultimately political project of confronting past wrongs and trying to achieve
national reconciliation.’39

3.8 Discussion and tutorial questions

1) ‘There can be no peace without justice’. Do you agree?
2) Is international criminal justice inevitably ‘victor’s justice’?

37 Scheffer, n 7, 51.
38 Kersten, n 34.
39 Tamas Hoffman, ‘Trying Communism through International Criminal Law? The Experiences of
the Hungarian Historical Justice Trials’ in Heller and Simpson, n 3, 247.
 INTERNATIONAL CRIMINAL JUSTICE 69

3) Would you agree with UN Secretary-General Ban Ki-moon that the ICC is
central to a ‘new age of accountability’?
4) Which is more important, principle or pragmatism, in assessing the success
or failure of international criminal justice?
5) What is the nature and extent of the ICC’s crisis?

Suggested reading
Bass, Gary J, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals
(Princeton University Press, 2000).
Boas, Gideon, William A Schabas, and Michael P Scharf, International Criminal Jus-
tice: Legitimacy and Coherence (Elgar, 2012).
Bosco, David, Rough Justice: The International Criminal Court in a World of Power
Politics (Oxford University Press, 2014).
Clark, Phil, Distant Justice: The Impact of the International Criminal Court on African
Politics (Cambridge University Press, 2018).
Drumbl, Mark A, Atrocity, Punishment and International Law (Cambridge University
Press, 2007).
Hazan, Pierre, Judging War, Judging History (Stanford University Press, 2010).
Heller, Kevin Jon and Gerry Simpson, The Hidden Histories of War Crimes Trials
(Oxford University Press, 2013).
Simpson, Gerry, Law, War and Crime (Polity, 2007).

Other resources
International Criminal Court <www.icc-cpi.int/en_menus/icc/Pages/default.aspx>.
Mark Kersten, Justice in Conflict <http://justiceinconflict.org/>.
‘The Prosecutor’ (Directed by Barry Stevens, White Pine Pictures, 2010) <www.nfb.
ca/film/prosecutor/trailer/prosecutor_trailer/>: This documentary follows
the Chief Prosecutor through the first trials of the newly formed International
Criminal Court.
UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-
Conflict Societies: Report of the Secretary-General, S/2004/616 (23 August
2004).

Bibliography
Clark, Phil, Distant Justice: The Impact of the International Criminal Court on African
Politics (Cambridge University Press, 2018).
Comment, ‘Human Rights in Peace Negotiations’ (1996) 18(2) Human Rights Quar-
terly 249–258.
70 RACHEL KERR

Forsythe, David P, Human Rights in International Relations (Cambridge University

Press, 2000).
Futamura, Madoka, War Crimes Tribunals and Transitional Justice: The Tokyo Trial
and the Nuremberg Legacy (Routledge, 2008).
Gibson, James L., ‘The Contributions of Truth to Reconciliation: Lessons From
South Africa’ (2006) 50(3) Journal of Conflict Resolution 409–432 <https://doi.
org/10.1177/0022002706287115>.
Gordon, Gregory S, ‘The Trial of Peter von Hagenbach: Reconciling History, Histori-
ography and International Criminal Law’ in Kevin Jon Heller and Gerry Simp-
son (eds), The Hidden Histories of War Crimes Trials (Oxford University Press,
2013) 13–49.
Gow, James, Rachel Kerr, and Zoran Pajic (eds), Prosecuting War Crimes: Lessons
and Legacies of the International Criminal Tribunal for the Former Yugoslavia
(Routledge, 2013).
Heller, Kevin Jon and Gerry Simpson, The Hidden Histories of War Crimes Trials
(Oxford University Press, 2013).
Hoffman, Tamas, ‘Trying Communism through International Criminal Law? The
Experiences of the Hungarian Historical Justice Trials’ in Kevin Jon Heller and
Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford Univer-
sity Press, 2013) 247.
Kelsall, Tim, Culture under Cross-Examination: International Justice and the Special
Court for Sierra Leone (Cambridge University Press, 2013).
Kerr, Rachel, The International Criminal Tribunal for the Former Yugoslavia: Law,
Diplomacy and Politics (Oxford University Press, 2004).
Kerr, Rachel, ‘Lost in Translation: Perceptions of the ICTY in the Former Yugosla-
via’ in James Gow, Rachel Kerr, and Zoran Pajic (eds), Prosecuting War Crimes:
Lessons and Legacies of the International Criminal Tribunal for the Former Yugo-
slavia (Routledge, 2013).
Kerr, Rachel and Eirin Mobekk, Peace and Justice: Seeking Accountability After War
(Polity, 2007).
Kersten, Mark, ‘Yes, the ICC is in Crisis. It Always Has Been’ Justice in Crisis (online),
24 February 2015 <http://justiceinconflict.org/2015/02/24/yes-the-icc-is-in-
crisis-it-always-has-been/>.
Leebaw, Bronwyn, ‘The Irreconcilable Goals of Transitional Justice’ (2003) 30(1)
Human Rights Quarterly 95–118.
Lincoln, Jessica, Transitional Justice, Peace and Accountability: Outreach and the
Role of International Courts after Conflict (Routledge, 2011).
Makau, Mutua, ‘The International Criminal Court: Promise and Politics’ (2015)
109 Proceedings of the Annual Meeting (American Society of International Law)
269–272. <https://doi.org/10.5305/procannmeetasil.109.2015.0269>.
Mani, Rama, ‘Editorial: Dilemmas of Expanding Transitional Justice, or Forging the
Nexus between Transitional Justice and Development’ (2008) 2 International
Journal of Transitional Justice 253–265.
 INTERNATIONAL CRIMINAL JUSTICE 71

Milanović, Marko, ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipa-
tory Postmortem’ (2016) 110(2) American Journal of International Law 233–259
<https://doi.org/10.5305/amerjintelaw.110.2.0233>.
Nino, Carlos Santiago, Radical Evil on Trial (Yale University Press, 1998).
Olsen, Tricia, Leigh Payne, and Andrew Reiter, Transitional Justice in Balance: Com-
paring Processes, Weighing Efficacy (USIP, 2010).
Scheffer, David J, ‘International Judicial Intervention’ (1996) 102 Foreign Policy
32–51.
Shklar, Judith, Legalism: Law, Morals and Political Trials (Harvard University Press,
1964).
Sikkink, Kathryn, The Justice Cascade: How Human Rights Prosecutions Are Chang-
ing World Politics (Norton, 2011).
Snyder, Jack, and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in
Strategies of International Justice’ (2003–2004) 28(3) International Security 5–44.
Stover, Eric and Harvey Weinstein, My Neighbour, My Enemy: Justice and Community
in the Aftermath of Mass Atrocity (Cambridge University Press, 2008).
Thoms, Oskar NT, James Ron, and Roland Paris, ‘State-Level Effects of Transi-
tional Justice: What Do We Know?’ (2010) 4 International Journal of Transitional
Justice 329–354.
Vinjamuri, L, ‘Deterrence, Democracy, and the Pursuit of International Jus-
tice’ (2010) 24 Ethics & International Affairs 191–211 <https://doi.org/10.1111/j.
1747-7093.2010.00256.x>.
Wilson, Richard Ashby, Writing History in International Criminal Trials (Cambridge
University Press, 2011).
Chapter 4

Gender and transitional justice

Annika Björkdahl and

Johanna Mannergren Selimovic

4.1 Introduction
Today we know that men and women often experience violent conflicts differ-
ently and that they suffer human rights abuses, ethnic cleansing, imprisonment
and injustices in different ways. Consequently, their needs for redress and justice
often diverge and what constitutes appropriate practices may differ accordingly.
To accommodate this, one would expect transitional justice mechanisms to be
gender sensitive. Yet, evaluations of past and present transitional justice prac-
tices show that they tend to disadvantage women in transitions to peace, justice
and democracy. Transitional justice outcomes thus have serious implications for
gender relations in post-conflict societies. Given these conditions, it is important
to apply a gender analysis to transitional justice in order to address the disparities
and inequities between men and women when it comes to access to power, oppor-
tunities and rights in transitional societies.
J Ann Tickner notes that ‘too often women’s experiences have been deemed
trivial, or important only in so far as they relate to the experiences of men.’1 This
has long been true also for transitional justice. Against this background the chapter
provides a short overview and investigation of gender perspectives on transitional
justice. We examine some of the gender implications of the ‘transitional’ theory
of justice. As an analytical tool, gender holds the promise to ask new questions
that reveal transitional justice projects as a site of power production. Thus, the
project of gendering transitional justice is driven by questions such as: Who is

1 J Ann Tickner, ‘Feminism Meets International Relations: Some Methodological Issues’ in Brooke
A Ackerly, Maria Stern, and Jacqui True (eds), Feminist Methodologies in International Relations
(Oxford University Press, 2006) 19.
74 BJÖRKDAHL AND SELIMOVIC

marginalised in transitional justice? Where is gender in transitional justice? Whose

justice and justice for whom?
By employing such critical perspectives, we are able to identify gaps in
the transitional justice agenda – gendered justice gaps. In this chapter we
focus on three gendered justice gaps – the accountability, acknowledgement
and reparations gaps – and unmask transitional justice as a site for the long-
term construction of a gendered post-conflict order. Although not always
recognised, gender is salient in understandings of justice whether it is (re)dis-
tributive, retributive or restorative justice. Pertinent critique is raised against
dominant practices of transitional justice for perpetuating stereotypical gen-
der categories, for not realising its transformative potential and for failing to
address structural injustices, including the subordination of women and the
feminisation of poverty in the aftermath of conflict. Furthermore, many tran-
sitional justice processes are unable to respond to women’s calls for justice,
acknowledge women’s different experience of violent conflict, counter the
persistent culture of impunity for violence against women in times of war and
its continuity in times of peace, and recognise women doing justice in infor-
mal ways, in marginalised spaces and through unconventional methods. Given
these circumstances, our focus in this chapter is on women – as victims and as
agents in transitional justice processes.
The chapter begins by defining and conceptualising the role of gender
analysis in transitional justice, followed by a brief historical overview of the
policy and practice accomplishments and shortcomings so far. We raise key
points of contention, and in the case study of Bosnia-Herzegovina (BiH), zoom
in on gendered justice gaps connected to accountability, acknowledgement and
reparation.

4.2 A gender perspective on transitional

justice
In order to gender transitional justice we need to first grasp the concept of gender,
and second, we need to rethink the whole transitional justice project by reading
it through a gender lens. Such an undertaking no doubt goes beyond a focus on
women. Gender is a complex, multi-layered and contested concept and we want
to acknowledge that there is a difference between ‘women’ and ‘gender.’ Gender
does not solely mean women, although this is often how gender is understood.
Narrow understandings of gender thus risk conflating the notions of ‘gender’ and
‘sex’, making ‘gender’ mean the same as biological ‘sex.’ To understand gender in
this way limits our ability to capture the dynamic relations of power between the
identities of men and women that the concept of gender entails. Instead, our point
of departure is that ‘gender is a constructed and contingent set of assumptions
 Gender And trAnsItIonAl justICe 75

about female and male roles.’2 Such a definition of gender brings to the fore
the socially and culturally constructed identities of men and women, and wom-
en’s prevalent subordination to men as key to gender hierarchies.3 This chapter
employs gender as a relational concept that more broadly informs an understand-
ing of power, exclusion and marginalisation.
A gender perspective can inform transitional justice theory about structural
relations of power that go largely unrecognised. We call, not for a simple recipe
of ‘add women and stir’, but rather gender analysis as a way of exploring the
forms that dominance and subordination take. It is an analysis that investigates
how transitional justice practices tend to re-entrench gender hierarchies by ignor-
ing women or circumscribing their presence to passive victims in need of pro-
tection. Furthermore, a gender analysis demonstrates that doing justice is often
a conflictual process. Much is at stake as different claims about past injustices
stand against each other. By looking through a gender lens, transitional justice
is revealed as a site of power production where the judicial cannot be separated
from the political and where the justice of the victor is implemented. Hence we
can begin to investigate the gendered dynamics of transitional justice institutions,
processes and mechanisms.
Gender norms shape our ways of thinking about what constitutes appropri-
ate ways of doing justice.4 A gendered reading of legal accountability measures
discloses inherently subjective demarcations of what constitutes a crime and
who is regarded as a victim.5 Thus, gender cannot be accommodated within
transitional justice as a descriptive category for victims. Transitional justice
processes, tools and mechanisms must not perpetuate stereotypical gender cat-
egories, but should rather unmask and challenge them. By employing a gender
perspective, we are able to rethink what constitutes a crime and how that is
mediated by gendered norms.
Transitional justice practices aim to right wrongs in the past, institutionalise
the rule of law and new juridical and normative frameworks in the present, as
well as prevent the recurrence of violence and future harms. A gender perspective
assists us in identifying different and continuous dynamics in pre-conflict times,
in the midst of conflict and in post-conflict times. The continuities of violence

2 Hilary Charlesworth, ‘Feminist Methods in International Law’ (1999) 93 American Journal of

International Law 379.
3 Cf Marysia Zalewski, ‘Well, What Is the Feminist Perspective on Bosnia?’ (1995) 71(2) Interna-
tional Affairs 338.
4 Susanne Buckley-Zistel and Ruth Stanley, Gender in Transitional Justice (Palgrave, 2012).
5 Katherine M Franke, ‘Gendered Subjects of Transitional Justice’ (2006) 15(3) Columbia Journal
of Gender & Law 16.
76 BJÖRKDAHL AND SELIMOVIC

spill over from wartime to peacetime and demonstrate that in order for transi-
tional justice to address gender inequality, it must be both backward-looking and
forward-looking. It must be backward-looking in the sense that it seeks to identify
and address hitherto ignored abuses in the past, and forward-looking in the sense
that it can be a transformative vehicle for women’s participation and the building
of a gender-just peace. Furthermore, research demonstrates that ensuring greater
gender equity is significantly connected to preventing the outbreak and relapse
of violent conflict. To gender transitional justice processes thus helps to connect
peace and justice.

4.3 overview: accomplishments and

shortcomings
Over the past 25 years, activists, practitioners, and policymakers have worked
hard and consistently to address gender inequalities in the processes of retributive
justice such as prosecutions and trials. This work has developed in conjunction
with the efforts that brought UN resolution 1325 (UNSCR1325) into being in
2000.6 The resolution and concomitant resolutions are part of the UN Women,
Peace and Security agenda, and aim to ensure women’s involvement in all aspects
of post-conflict reconstruction and peacebuilding, as well as redress for the abuse
of women’s rights. These efforts have resulted in a new normative and judicial
framework. Equal rights and equality before the law are now among the basic
principles articulated in various international laws on human rights, including the
Covenant on Civil and Political Rights, the Covenant on Economic, Social, and
Cultural Rights, the Convention on the Elimination of All Forms of Discrimina-
tion against Women (CEDAW), the Convention on the Rights of the Child, the
Rome Statute of the International Criminal Court, the Basic Principles on the
Right to Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law,
the Beijing Declaration and Platform for Action and UNSCR 1325. These new
rights-based frameworks provide important impetus for gendering transitional
justice.
Nevertheless, the process of including gender equality measures in peace
processes is slow. An analysis of 1,520 peace agreements that were made in the
period 1990–2016 reveals that half of them address transitional justice matters
and, of these, only 3 per cent include any gender-specific provisions. Of those

6 United Nations Security Council Resolution, SC Res 1325, UN SCOR, 4213th mtg, UN Doc S/
RES/1325 (31 October 2000).
 Gender And trAnsItIonAl justICe 77

that do address gender, many do so only in relation to women as victims. To not

make the link between gender and transitional justice in the peace agreement is
a missed opportunity at a crucial moment in the transitional process.7 The recent
Colombian transition from war serves an example of how gender rights are nego-
tiated through the writing of the peace accord signed in 2016. It took place in a
time when women were no longer invisible and marginal in peacebuilding and
transitional justice processes. Colombian women’s rights activists and NGOs
demanded that gender-based violence was to be acknowledged and redressed in
the peace and justice process. The text of the Colombian peace accord is rare in
that it also mentions LGBT people among the vulnerable groups. The conserva-
tive opposition, however, used the inclusion of LGBT rights to claim that the
peace accord was used as an excuse to impose ‘a gender ideology’ in Colombia.8
The Colombian post-conflict society reveals how norm transformation is a con-
tested, frictional and cumbersome process ridden in power.
Thus, we can see that the normative process of gendering transitional justice
evolves in relation to ongoing peace processes. In what follows we give an over-
view of how this process has played out with regard to three central aspects of
transitional justice: accountability, reparation and acknowledgement.

Gendering accountability
The first, main focus of the Women, Peace and Security agenda was the spe-
cific issue of conflict-related sexual violence. Although historically such violence
against women has always been prevalent, it has been ignored, severely under-
reported and normatively understood as a side-effect of war. The issue was taken
seriously for the first time through the international legal instruments that devel-
oped in the beginning of the 1990s to fight a culture of impunity. Through the
consistent pressure and expertise of grassroots women activists and individuals in
elite organisations such as the UN and governments, international law and juris-
prudence have made significant advances over the past two decades. Important
breakthroughs were made by the two ad hoc tribunals set up to address war crimes
in the former Yugoslavia and in Rwanda. The International Criminal Tribunal
for the former Yugoslavia (ICTY), established in 1992, was the first tribunal to
specifically list war rape as a crime against humanity and there have been several

7 Jamar Astrid and Christine Bell, Transitional Justice and Peace Negotiations with a Gender Lens
(Gender Briefing Series) (UN Women, October 2018) <www.politicalsettlements.org/wp-content/
uploads/2018/12/Inclusive-peace-processes-Transitional-justice-en.pdf>.
8 Ari Shaw, ‘Why Colombia’s Peace Process Could Mean Trouble for LGTB Rights’ World
Politics Review (2017) <www.worldpoliticsreview.com/articles/22765/why-colombia-s-peace-
process-could-mean-trouble-for-lgbt-rights>.
78 BJÖRKDAHL AND SELIMOVIC

convictions for gender-based violence, such as, for example, the case against
Kunarac in which the accused was convicted for the crime of slavery.9
The International Criminal Tribunal for Rwanda (ICTR) established in
1994, followed suit with its 1998 judgement of Jean-Paul Akayesu, a mayor
in one of the provinces in Rwanda, who became the first person in an interna-
tional court to be convicted of rape. In the case it was further recognised that
rape formed a significant part of the Rwandan genocide, and also for the first
time, rape and other gender-based violence were identified as crimes against
humanity.10
The permanent International Criminal Court (ICC) with a seat in The Hague
has built upon the work of the two ad hoc tribunals. The treaty that established the
court and governs it, the Rome Statute, refers to gender-based violence as a pos-
sible war crime. This was the first time the term ‘gender’ was used and defined in
an international criminal law treaty. However, opinions vary widely about the def-
inition of ‘gender’ adopted in the Rome Statute, and include some sharp criticism.
Some critics describe it as ‘narrow’ and having ‘limited transformative edge’, thus
incapable of transforming gender inequality, challenging gender hierarchies and
establishing gender equality. Still, the court provides a more detailed definition
of gender-based violence, which includes not only rape but also sexual slavery,
enforced pregnancy, enforced sterilisation and enforced prostitution. Thus, article
7(3) of the Rome Statute has gender sensitivity built into its structural and discur-
sive logic.
The developments in international law have no doubt broken new ground
and laid a solid, legal base. Yet actual convictions are few and scattered, espe-
cially when read in conjunction with the continued prevalence of sexual violence
in conflict. The advances risk remaining isolated at the international level as it
has proved troublesome to make gender-sensitive legislation move into local and
national courts, which arguably more directly affect women’s lives than geo-
graphically distant international courts.
Furthermore, the majority of victims in post-conflict countries – women as
well as men – do not have access to formal institutions but instead must seek justice
in traditional or informal courts where patriarchal norms tend to be entrenched.
It is not uncommon that rape is treated not as a criminal act but as a problem that

9 Prosecutor v Kunarac, Kovac and Kukovic (International Criminal Tribunal for the Former Yugo-
slavia, Trial Chamber, Case No IT-96-23-T&IT-96-23/1-T, 22 February 2001) <www.icty.org/x/
cases/kunarac/tjug/en/kun-tj010222e.pdf>.
10 Prosecutor v Akayesu (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber
I, Case No ICTR-96-4-T, 2 September 1998) <http://unictr.unmict.org/sites/unictr.org/files/case-
documents/ictr-96-4/trial-judgements/en/980902.pdf>.
 Gender And trAnsItIonAl justICe 79

should be dealt with informally within the family. This might mean ‘solving’ the
issue by forcing the woman to marry the person who raped her.11
A case in point concerns the 2014 atrocities against Yezidis committed by
ISIS in northern Iraq, which involved extremely high levels of sexual violence
against women. It is estimated that ISIS kidnapped 5,000 to 7,000 women, many
of them under-age, and forced them into sexual slavery.12 At the time of writing,
no one has been convicted in national or international courts for those crimes. As
an added injury, upon return to their community many of the victims have been
stigmatised as they are blamed for destroying the ‘honour’ of their families.13
Hence widespread impunity for conflict-related sexual violence continues
and the gap between the number of convictions and estimations of violence is
staggering. Insights are growing that it is not just a matter of getting the right leg-
islation and jurisprudence in place. It is also important to consider what possibili-
ties women have to seek justice and to take active part in justice processes. This is
a central issue in the gender policy adopted by the ICC in 2014 under the auspices
of the prosecutor of the ICC, Fatou Bensouda, and developed in conjunction with
a network of civil society actors. The policy has a two-fold aim – to strengthen
the capacity of the prosecutor to investigate perpetrators and also, importantly, to
integrate a gender perspective in all the operations of the court.14 In the work of
the ICTR and the ICTY it has become increasingly clear that witness protection
schemes are inadequate for women who take considerable risks to testify and who
often stand alone without support from their own communities; also that there is
a lack of psychosocial support for dealing with the particular traumas associated
with sexual violence. An integrated gender perspective highlights such failings
and identifies impediments to women’s ability to take part in legal proceedings. It
helps to ask crucial and concrete questions, such as: do witnesses have to travel a
long way to reach courts to give testimony – journeys that may come with grave
security risks? Do women have to leave their children unattended, and does this
hinder them from witnessing? Do they have access to their own funds to pay for a

11 Nahla Valji, A Window of Opportunity: Making Transitional Justice Work for Women (October
2012) United Nations Entity for Gender Equality and the Empowerment of Women <www.
unwomen.org/~/media/Headquarters/Attachments/Sections/Library/Publications/2012/10/06B-
Making-Transitional-Justice-Work-for-Women.pdf>.
12 C Dickson, ‘Slipping through the Cracks: Expanding Re-identification Procedures to Help Yazidi
Sex Trafficking Survivors’ (2018) 16(3) Seattle Journal for Social Justice 995–1028.
13 Amnesty International, Iraq: Yezidi Women and Girls Face Harrowing Sexual Violence, 23
December 2014 <www.amnesty.org/en/latest/news/2014/12/iraq-yezidi-women-and-girls-face-
harrowing-sexual-violence/>.
14 Office of the Prosecutor, ‘Sexual and Gender-Based Crimes’ (Policy Paper, International Crimi-
nal Court, 5 June 2014) <www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-
Based-Crimes-June-2014. pdf>.
80 BJÖRKDAHL AND SELIMOVIC

bus ticket? In the end such practical concerns deeply affect possibilities for ending
impunity for gender-based violence.

Gendering reparations
In the 2011 United Nations Secretary-General’s Report on the Rule of Law and
Transitional Justice in Conflict and Post-Conflict Societies, reparation is singled
out as the ‘most victim-centred justice mechanism available.’15 The shift from
a focus on perpetrators to the needs of victims holds the potential to redress
the complex and diverse gendered experiences and violations of both men and
women. While there is growing knowledge of how women and men experience
conflicts in different ways and often have different needs for reparation, there is
a lot of work to be done when it comes to designing reparations programs so that
they redress women more fairly and efficiently. Recommendations and legislation
about measures for redress are often an outcome of truth commissions and other
public hearings. Gendered analyses and recognition of women’s needs for redress
have moved to the top of the agenda in these fora, yet we can see that the actual
implementation of recommendations remains scattered and inadequate. When it
comes to funding, compensation to women victims is not prioritised in the bleak
socio-economic situation in post-conflict societies.
Reparation holds the potential to address the full scope of violations of a
gendered nature and understand the issue of conflict-related sexual violence in
conjunction with other losses from which women disproportionally suffer. These
include gendered consequences of forced displacement, disease and poverty as a
consequence of the conflict. Reparations schemes can help them get justice and
improve their post-conflict situation. Yet without knowledge about gender dynam-
ics in the societies in question, reparations schemes may exacerbate injustices. For
example, in some settings, the paying of large one-time compensation to women
may be detrimental to them as they may not get to keep the money for themselves.
Here agencies have sometimes opted for pension schemes or support in setting
up income-generating projects as a means of compensation.16 Again, a gender
analysis may also reveal that practical obstacles can seriously hinder women’s
access to justice schemes, such as continued levels of insecurity. Concerning the
specific issue of conflict-related sexual violence, reparations programmes are an

15 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: United Nations
Secretary-General’s Report, UN Doc S/2011/364 (12 October 2011) 8 <www.un.org/en/ga/search/
view_doc.asp?symbol=S/2011/634>.
16 Ruth Rubio-Marín, ‘Reparations for Conflict-Related Sexual and Reproductive Violence: A Deca-
logue’ (2012) 19(1) William & Mary Journal of Women and the Law 72.
 Gender And trAnsItIonAl justICe 81

opportunity to couple the global fight to end impunity for perpetrators of sexual
violence to locally grounded, victim-centred attention to compensation. Medical
service providing, for example, fistula operations, psycho-social help and mon-
etary compensations are pointed out as essential parts of a comprehensive repara-
tions program.
In line with the UNSCR1325 focus on women’s participation, reparations
schemes are also opportunities for acknowledging and strengthening civil soci-
ety networks that engage with redress and compensation. In societies shattered
by conflict, such organisations have often taken on the burden of providing psy-
cho-social support, setting up microcredit schemes that can help women build
up economic independence and organising for just compensation. This is yet
another aspect of the transformative, forward-looking potential of reparation as
part of transitional justice. Channelling collective compensation through local
groups may strengthen involvement of civil society groups and strengthen voice
and women’s engagement in society. Such reparations would allow ‘survivors
to travel the road from victims to agents of change.’17 Strengthening women’s
agency in these matters is key to building a more gender-just peace from which
both men and women may benefit.18 The use of collective compensation is a way
of protecting women who may be harmed by exposure.

Gendering acknowledgement
For the above measures to be conducive to the long-term building of a gender-
just peace, a change of norms is needed. Providing only legislation or com-
pensation is not enough, as many victims of sexual violence continue to suffer
from ostracism, women’s and men’s experiences of war are not taken equally
into consideration and many women experience that their suffering is shrouded
in silence.19 Among the established transitional justice mechanisms, truth com-
missions are considered a potentially effective tool for breaking silences, pro-
viding acknowledgement and ultimately changing norms. In reality, women’s
experiences have often been sidestepped. The first truth commission to include
a gender perspective was South Africa’s Truth and Reconciliation Commission,
which actively encouraged women to come forward and testify. But the ques-
tions and expectations at the hearings tended to reduce women to their role as

17 Ibid 97.
18 Annika Björkdahl and Johanna Mannergren Selimovic, ‘Gendered Justice Gaps in Bosnia-Herce-
govina’ (2014) 15 Human Rights Review 201.
19 Jennie E Burnet, Genocide Lives in Us: Women, Memory, and Silence in Rwanda (University of
Wisconsin Press, 2012).
82 BJÖRKDAHL AND SELIMOVIC

wives or mothers, and their testimonies consequently centred on the suffering of

their husbands or sons, while their own experiences were ignored. Concomitant
truth commissions have taken stock of the South African experience and with
varying success tried to encompass women’s voices and concerns. But statistics
indicate that women seldom consider truth commissions to be safe places for
giving testimonies, especially on sexual violence. In the Liberian Truth Com-
mission only a handful of such statements were given – yet independent surveys
showed that about 80 percent of the women in the regions concerned had been
subjected to such violence.20 As discussed above in relation to criminal courts,
taking on the role of the witness is fraught with uncertainty and the risk of deep-
ening ostracism. The need to streamline gender awareness all through opera-
tions also applies to truth commissions.
Nonetheless, just like reparations schemes, the work of truth commissions
and public hearings holds the potential to open up a discussion of structural
change, and in some cases the truth commissions have taken this challenge on
board. In Sierra Leone, for example, the report of the Truth and Reconciliation
Commission provided a gender analysis, noted structural causes of the war and
in its recommendations pushed for radical reform in order to achieve a gender-
just peace.21
The Colombian Justice and Peace Law, adopted in 2005, has been at the heart
of Colombia’s efforts to dismantle paramilitary groups, facilitate the reintegration
of demobilized former combatants into civilian life and provide justice to thou-
sands of their victims. It offered former paramilitaries reduced prison sentences in
exchange for their full confession and contribution to reparations for victims and
national peace. While the process was seen to be insufficient in holding all per-
petrators accountable and establishing the complete truth about the paramilitary
crimes, it created an enabling environment for victim organizations’ advocacy
for truth, justice and reparations. In addition, Colombia has developed the Spe-
cial Jurisdiction for Peace (JEP), a judicial mechanism that is part of the Transi-
tional Justice System agreed to in the Colombian peace accord of 2016. JEP was
designed to address justice for the victims of violence, mass atrocity and human
rights abuses, and it has already started to accept reports and take testimonies
from the victims. However, the president of Colombia has yet to sign the law and
the government seeks to reform the legal framework of JEP. This has raised ques-
tions about impunity and it precipitates a sense of trauma, injustice and exclusion

20 Valji, n 11, 11–12.

21 Ibid 11.
 Gender And trAnsItIonAl justICe 83

in the victims. In addition, if the state does not honor the peace accord, it risks that
ex-FARC combatants abandon the peace process.22
Beyond truth commissions there are other means for state authorities to
engage in acknowledgement. One such mechanism is official apologies from
the state and/or its bodies such as the police or military, which could potentially
have a powerful impact, for both individual victims’ sense of acknowledgement
and broader change of societal norms. To get ‘just’ monetary compensation is
often considered insufficient by victims if not accompanied by formal and public
acknowledgement. Another mechanism concerns memorialisation practices and
sites for collective remembering, such as monuments, memorials and museums.
What is collectively remembered and forgotten after war is typically informed by
gender stereotypes. If women are commemorated at all, they are usually there as
objects to be ‘saved’ – a one-dimensional image of the female victim that does
not allow for any commemoration of women in any other roles, be it as agents of
peace, as soldiers or indeed as perpetrators.
Despite facing opposition or disinterest, many organisations have been vocal
in breaking taboos, engaging in advocacy and persistent lobbying in ways that
defy the stereotyping of women as passive victims. Victim and survivor organisa-
tions have engaged in debates over what transformative, gender-just peace may
entail for both men and women, and they have secured funds and support for
victims and survivors and provided reparations when the state has failed to do so.

4.4 Identifying gender-just gaps and points

of contention
On a theoretical level a great number of questions remain unresolved and it is per-
tinent to problematise some of the assumptions and outcomes of research so far.
One issue under theoretical debate concerns the intense focus on conflict-related
sexual violence. The efforts to break the impunity for these crimes and unveil the
extensive harm suffered by women paradoxically risks cementing conservative
gender roles of women as victims and men as perpetrators. This interest has been,
and is, necessary in order to counter the historical neglect of women’s war experi-
ences, yet arguably a ‘hyper-attention’ to rape may reduce women’s experiences

22 International Centre for Transitional Justice, Colombia’s Justice and Peace Process (2012)
<www.ictj.org/news/feature-series-colombia’s-justice-and-peace-process>; Isa Mendes, Maíra Siman,
and Marta Fernández, ‘The Colombian Peace Negotiations and the Invisibility of the “No” Vote
in the 2016 Referendum’ (2019) Peacebuilding <https://doi.org/10.1080/21647259.2019.1620908>;
Catalina Ruiz-Navarro, ‘A Feminist Peace in Colombia?’ (Heinrich Böll Foundation, 2019)
<https://reliefweb.int/report/colombia/feminist-peace-colombia>.
84 BJÖRKDAHL AND SELIMOVIC

to a sexual dimension.23 Other aspects of transitional justice, such as reparations

for social and economic harms, risk being side-lined if attention to sexual vio-
lence crimes is not part of a broader agenda of gender-sensitive reparations. Rep-
arations programs are usually not designed with an explicit gender dimension,
which would mean including compensation to women as well as an understanding
of the wider impact on gender roles that reparations programs may have. Feminist
activists and scholars continue to point out that post-conflict societies often fail to
do justice to the victims of conflict-related sexual violence and the need to redress
women more fairly and efficiently.
The intense focus on women victims goes hand in hand with one of the
unexplored caveats in transitional justice: male victims of rape and other types
of gender-based violence. In general we know very little about the scope of con-
flict-related sexual violence against men, and the subject seems highly taboo and
shrouded in shame.24 When testimonials in courts or truth commissions reveal
violence against men in the form of, for example, genital mutilation or enforced
intercourse, it is common that this violence is not labelled as ‘sexual.’ There are
many vocal women’s organisations working to help women victims, but hardly
any civil society actors focussing on male victims, thus deepening the sense of
shame and stigma.25
Importantly, sexual violence against both men and women reinforces patri-
archal patterns of male domination and female submission. Male victims have
most commonly been subject to male violence, and the sexual violence may be
performed in order to reduce them to feminised victims and strip them of mascu-
linity, according to the logic of detrimental and conservative gender stereotypes.
Recently, critical questions have been raised about the invisibility of women
as perpetrators of war crimes. The conceptual lens of gender-sensitive transitional
justice tends to zoom in on women’s harms and suffering of injustices during
conflict, and attempts to identify gendered tools and mechanisms in order to
respond to women’s calls for justice and to right past wrongs. This is clearly an
important leap forward for transitional justice, but it also perpetuates patriarchal

23 Alice M Miller, Sexuality, Violence Against Women, and Human Rights: Women Make
Demands and Ladies Get Protection (2004) 7 Health & Human Rights 17 cited in Rubio-
Marín, n 16, 73.
24 Dubravka Zarkov, The Body of War (Duke University Press, 2007).
25 Philip Shulz, ‘Examining Male Wartime Rape Survivors’ Perspectives on Justice in Northern
Uganda’ (2019) Social and Legal Studies <https://doi.org/10.1177/0964663918822158>; United
Nations High Commissioner for Refugees, Working with Men and Boy Survivors of Sexual and
Gender-Based Violence in Forced Displacement (United Nations, July 2012) <www.unhcr.org/
refworld/pdfid/5006aa262.pdf>.
 Gender And trAnsItIonAl justICe 85

understandings of gender roles where women are victims and men are perpetra-
tors.26 Female perpetrators are obscured and their crimes often remain unpunished.
Recent feminist research now unpacks these stereotypical gender categories, and
raises questions about when women become perpetrators, why and under what
conditions. This research seeks to make visible women who employ violence or
facilitate the conditions for the perpetration of violence, their crimes and their
reception by society. The ICTY verdict against Biljana Plavšić, former president
of the Bosnian entity Republika Srpska, for crimes against humanity, and the
ICTR verdict against Pauline Nyiramasuhuko, the former Rwandan Minister of
Family and Women Affairs, for genocide, are definitive examples of indirect vio-
lence on a genocidal scale.
Another set of questions concerns the tendency in transitional justice to com-
partmentalise the harms suffered during the conflict, thus ignoring the gendered
continuities of violence27 across conflict and post-conflict social and political
orders. In the above outline it was indicated that peace does not always bring
security to women. These dynamics need to be better understood in order to
deepen our understanding of the role transitional justice can play for post-conflict
transformations. Impunity norms continue even after transitional justice has been
implemented and, while violence in the public sphere is selected for account-
ability, violence committed in the private sphere is ignored. How, then, can tran-
sitional justice mechanisms be made relevant to women who continue to suffer
from violence and insecurity in the post-conflict period? Such critical thinking
opens up a critique of the dichotomy between ‘private’ and ‘public’ and ‘before’
and ‘after’ violence.
The search for more inclusive transitional processes has brought a growing
interest in community-based transitional justice processes. Many gains can be
made from more locally grounded approaches. The Gacaca Courts, a local judi-
cial body in Rwanda that tried more than 1 million suspected genocidaires, is one
well-known and increasingly discussed tool of transitional justice. A critical, gen-
der-informed approach reveals that bottom-up processes may at times privilege
exclusionary and conservative politics and values, as noted in the example above
concerning how rape has been dealt with in traditional courts. Support to such
informal institutions may thus bring gender implications that so far remain largely

26 Laura J Shepherd, ‘Introduction: Rethinking Gender, Agency and Political Violence’ in L Åhäll
and LJ Shepherd (eds), Gender, Agency and Political Violence (Palgrave, 2012); Laura Sjoberg
and Caron E Gentry, Mothers, Monsters, Whores: Women’s Violence in Global Politics (Zed
Books, 2007).
27 Cynthia Cockburn, The Line: Women, Partition and the Gender Order in Cyprus (Zed Books,
2004).
86 BJÖRKDAHL AND SELIMOVIC

unexplored.28 At the same time, external criticism is often rejected in order to

safeguard ‘traditional’ values. This argument is valid if one considers ‘traditional’
practices as static and incapable of change, but an alternative view on such prac-
tices as always evolving and non-static opens up a transformative dialogical path.
Further, external donors who accept gender inequality in the name of tradition
should seriously consider why ‘(w)omen’s rights continue to be yielding rights.’29
There is also a need to think critically about assumptions on the role played by
commemoration, truth commissions and other mechanisms to enforce norms, build
knowledge of the past and construct shared narratives of the past. Far from smooth
processes towards reconciliation, such struggles around what is to be remembered
and what is to be forgotten are highly gendered processes whereby power rela-
tions are produced and maintained. In many post-conflict societies, peace comes
with a conservative backlash for women, and we need to more deeply understand
the dynamics whereby gender identities are being reconstructed, reconfigured
and redefined through interactions between the transitional justice discourse and
nationalism, culture and religion. So far, transitional justice mechanisms have done
little to put forward alternative readings of women’s and men’s roles in society and
have had only limited impact on cultures of shame and gendered silences. Going
beyond established mechanisms for acknowledgement may be one path towards a
more multidimensional rendering of women’s and men’s roles and experiences of
war. A welcome task for transitional justice research would be to widen the scope
of investigations to include also the narratives constructed in the arts, in media and
in popular culture. These arenas may be far more important than truth commissions
for challenging misogynist norms and practices.30
Stories emerging from film makers or artists make space for a more multidi-
mensional understanding not only of harms suffered by women but also of women
as agents. One such film is Grbavica: Esma’s Secret, directed by Jasmila Žbanić,
about a resourceful woman in post-war BiH who navigates the silences around
war rape in post-war BiH and confronts her own secrets.31 To trace such agency

28 Catherine O’Rourke, ‘The Shifting Signifier of “Community” in Transitional Justice: A Feminist

Analysis’ (2008) 23(2) Wisconsin Women’s Law Journal 269.
29 Sirkku K Hellsten, ‘Transitional Justice and Aid’ (Working Paper No 2012/06, UNE-WIDER, Jan-
uary 2012) 19.
30 Laura McLeod, Jovana Dimitrijević, and Biliana Rakočević, ‘Artistic Activism, Public Debate
and Temporal Complexities: Fighting for Transitional Justice in Serbia’ in Peter D Rush and Oli-
vera Simić (eds), The Arts of Transitional Justice: Culture, Activism, and Memory after Atrocity
(Springer, 2014); Catherine Ramírez-Barat (ed), Transitional Justice, Culture and Society: Beyond
Outreach (International Center for Transitional Justice and Social Science Research Council,
2014); Vikki Bell, The Art of Post-Dictatorship: Ethics and Aesthetics in Transitional Argentina
(Routledge, 2014).
31 Grbavica: Esma’s Secret (Directed by Jasmila Žbanić, Produced by Tanja Aćimović, 2006).
 Gender And trAnsItIonAl justICe 87

and understand how women’s active participation in mechanisms for, as an exam-

ple, redress, offers women not only a reparative sense of recognition as victims
but also as valuable agents of political and social transformation. Such fictional
stories encourage further analysis of cultural engagements as a potentially fruitful
and little-explored aspect of transitional justice in a broad sense.
In sum, transitional justice should not only be understood as a backward-
looking tool for dealing with war crimes, but as a forward-looking opportunity
for larger societal transformation. Searching for gender in transitional justice pro-
cesses provokes new questions concerning its transformative power. Can it affect
social and economic inequality? Can it change hierarchies and norms? The fol-
lowing case study analyses the multi-dimensional transitional justice process in
BiH from such a perspective.

Case study: gendered justice gaps in Bosnia-Herzegovina

During the 1992–1995 war between Bosniaks, Croats and Serbs, Bosnia-
Herzegovina (‘BiH’) witnessed large-scale violence and war crimes, ethnic
cleansing and displacement, mass rapes and other forms of sexual violence
directed against women, men and children. The BiH transitional justice process
has been slow and arduous, and constantly hampered by the ethno-nationalist
centrifugal powers with little agreement on the past, present or future. The tran-
sitional justice has moved from mostly being an external affair with the ICTY as
its central mechanism to an internal domesticised process at the War Crimes
Chamber of Bosnia’s State Court. The new National Strategy for War Crimes Pro-
cessing aims to process all war crimes until 2023. The strategy is complemented
by the Transitional Justice Strategy, which is in its draft stage and focuses on
truth seeking, reparations and reform of institutions.32
Despite the fact that BiH has an institutional structure for gender main-
streaming, most of the transitional justice programs are not gender sensitive. It
is clear that the legal framework of BiH has not adequately addressed the issue of
the gendered gaps concerning accountability, acknowledgement and reparation.
Public awareness and interest, as well as overall social status of the survivors of
crimes related to sexual violence in conflict, is at a low level. The phenomenon of
conflict-related sexual violence is still perceived as a private matter, even though
it is formally recognised as a public problem and a human rights issue. The sur-
vivors of conflict-related sexual violence are still not sufficiently protected, and
their rights guaranteed by the Bosnian laws are not fully respected. The high
level of violence registered in present-day BiH, partly manifested in increased
and more severe cases of domestic violence, can to a certain extent be traced to
the experience of violence during the conflict.

(continued)

32 There is also a state-level law on missing persons, and in its draft stages is a programme of assis-
tance for women victims of war rape, sexual violence and torture during the period 2013–1016.
88 BJÖRKDAHL AND SELIMOVIC

(continued)

Gender and accountability

A core aspect of transitional justice in BiH, as in many post-conflict societies, is
the legal accountability mechanisms set up in order to end impunity, increase
security and change values through the prosecution of individual war criminals.
The accountability process in BiH has to a large degree been defined by the ICTY,
which began its proceedings in 1992 when war was still on-going. The convic-
tions for rape as a crime against humanity in the ICTY have been seminal for the
development of international law, and some key individuals have been convicted.
Nevertheless, the general recognition of these crimes in BiH has overall been
very low, partly because the ICTY’s verdicts have been used by ethnonationalist
entrepreneurs to entice divisionism and the tribunal’s work is therefore read as
inherently biased.33 As the ICTY now moves to a close, the domestic legal system
in BiH is taking over through the War Crimes Chamber of Bosnia’s State Court,
as well as courts at the subnational entity levels. A gender analysis of the court’s
work so far raises serious concerns. The domestic system has generated only a
couple of convictions and a handful of on-going trials, and the legal framework
is inconsistent with international standards and jurisprudence of international
courts. Prevailing insecurities, partly due to the impunity of war crimes, means
that women who do participate take certain risks. Several witnesses have been
threatened and programmes for witness protection are either non-existent or
very marginal. It is clear that criminal justice provides women with not just relief
but also pain, as they have to revisit past sufferings. By coming forward to testify,
Bosnian girls and women may bring social shame on themselves and their fam-
ily. Whatever good may come out of the ordeal is offset by the risks of being met
with incredulity, being blamed for the rape or having their experiences trivialised.
At the same time, it is noticeable that the women who, despite these obstacles,
decide to come forward and testify, do it out of strong sense of wanting to make a
difference and contribute as agents of change towards a peace that brings secu-
rity and acknowledgement for all. In a rare interview-based report on women
witnesses, it is noted that the strongest reasons among women and girls for
giving testimony were ‘to make the perpetrator accountable for what he did and
to see him punished, to prevent other women and girls from being raped, and to
tell what really happened.’34

Gender and acknowledgement

While the particular harms suffered by women in the Bosnian war – as rape
victims – have been turned into a global, emblematic image of that war, these
experiences have been silenced in the national and local context, only invoked

33 Johanna Mannergren Selimovic, ‘Challenges of Postconflict Coexistence: Narrating Truth and

Justice in a Bosnian Town’ (2015) 36 Political Psychology 231–242. Jelena Subotic, Hijacked
Justice: Dealing with the Past in the Balkans (Cornell University Press, 2009).
34 Medica Mondiale, ‘“[…] and that it does not happen to anyone anywhere in the world”: The
Trouble with Rape Trials – Views of Witnesses, Prosecutors and Judges on Prosecuting Sexualised
Violence during the War in the Former Yugoslavia’ (Medica Mondiale, December 2009) 52.
 Gender And trAnsItIonAl justICe 89

in the abstract as a symbol of the Bosniak nation’s collective hurt and suffer-
ing. Thus, we find that there is an important gendered acknowledgement gap.
This gap could be addressed if acknowledgement practices were to provide a
space for women victims and acknowledge harms suffered such as war rapes
in infamous rape camps, like the one at the Vilina Vlas Hotel in Višegrad.35 But
the ethnonationalist divisionism that continues to haunt BiH two decades after
the end of the war means that plural accounts of the past are not accepted and
that contentions over war crimes are constantly refuelled. Truth commissions
have been a popular tool in many transitional societies, but it has proved difficult
to establish such a commission in the deeply politically and socially fractured
society of BiH. Instead, commemoration practices and memory discourses have
become important as means of acknowledging the past. In these practices and
discourses, women’s experiences of injustices and harms but also their agency
are often excluded, marginalised or forgotten in the memory work and commem-
oration practices on all ‘sides.’ Military ‘war heroes’ are celebrated and women
are written out of the post-war narratives. This is reflected in the continued denial
of the rape camps and in the contestation concerning the verdicts of war rapes
delivered by the ICTY, despite the fact that the tribunal has been seminal in stat-
ing that conflict-related sexual violence may constitute a crime against human-
ity. Public silence therefore still engulfs the rape camps in BiH, and claims for
acknowledgement are interpreted as part of ethnonationalist reconfigurations of
the political. According to the same logic, the interethnic work that women have
performed as peacebuilders is met with suspicion and opposition. Such attempts
to ‘build bridges’ may paradoxically be perceived as a threat by those who con-
tinue to regard ‘the other side’ with suspicion and believe separation is necessary
in order to prevent war from breaking out again.
Nonetheless, critical voices that challenge the status quo have found other
arenas for critical debate. The arts and popular culture have developed into alter-
native realms for raising those concerns that formal institutions have failed to do.
Films such as Grbavica: Esma’s Secret, depicting a rape victim who deals with
post-war life in Sarajevo as a resourceful but struggling single mother, and the
short documentary film Red Rubber Boots,36 about a mother’s ceaseless mourn-
ing as she searches excavation sites for remains of her lost child, are interesting
examples. The international film In the Land of Blood and Honey,37 which frames
the topic of the rape camps with a love story across ethnic borders, sparked a lot
of controversy, which in itself opened up a debate on the voice of rape victims,
raising contentious questions around who could speak for them and who had
(continued)

35 Olivera Simić and Zala Volcic, ‘In the Land of Wartime Rape: Bosnia, Cinema and Reparations’
(2015) 2(2) Griffith Journal of Law and Human Dignity 378–396. Zala Volcic and Olivera Simić,
‘Geographies of Crime and Justice in Bosnia and Herzegovina’ in Annika Björkdahl and Susanne
Buckley-Zistel (eds), Spatializing Peace and Conflict: Mapping the Production of Places, Sites
and Scales of Violence (Palgrave, 2016); Annika Björkdahl and Johanna Mannergren Selimovic,
‘Feeling Silences in a Place of Pain’ (2017) 19(3) International Feminist Journal of Politics 383–385.
36 Crvene Gumene Čizme (Directed by Jasmila Žbanić, Deblokada, 2000).
37 Directed by Angelina Jolie, GK Films, 2011.
90 BJÖRKDAHL AND SELIMOVIC

(continued)
the right to control their story.38 These fictional stories have complicated and
challenged the narrow role for women in the post-conflict context. Clearly, we
need to look beyond acceptable or ‘appropriate’ victimhood for women and these
unconventional ways of acknowledging harms can contribute to expanding the
transitional justice agenda.

Gender and reparations

The gendered reparation gap that we notice in BiH is caused by a gender bias
inherent in many rights systems and magnified by the absence of women in the
design and implementation of reparations program. Reparation is recognised
as the transitional mechanism that can make the most concrete difference for
victims. It includes a diversity of measures with far-reaching effects on societ-
ies and individual lives, including individual economic compensation, collective
projects of reconstruction and provisions for victims’ access to education, health
services and pensions. Reparations can address social and economic dimensions
of violence, such as the feminisation of poverty that war often brings. Contrary to
expectation, reparations have played a negative role in reconciliation processes
in BiH. First, determining who is a victim and who is a perpetrator is a deeply
contested process. Recognition of victimhood is highly political as it is viewed as
a micro-negotiation of the nature of the war, and it has socio-economic conse-
quences, as identified victims are eligible claimants for reparations. In BiH, first,
different victim groups, such as associations for camp inmates, relatives of miss-
ing persons, and women subjected to sexual violence, are divided along ethnic
lines, making it difficult to join forces and advocate for state-level reparations pro-
grammes. Second, reparations have also divided victims and survivors within the
ethnic communities. As a consequence, victims of conflict-related sexual violence
have unintentionally been pitched against camp survivors. Thus, that victims/
survivors of conflict-related sexual violence should deserve reparations is not
all that is at stake in reparations for harms suffered. Further, state-reparations
programmes are insufficient and women’s organisations must step in to deliver
reparations such as medical care, psychotherapy, trauma treatment and various
other approaches to healing while promoting gender awareness and address-
ing domestic violence – so-called everyday rape. These efforts demonstrate that
women in BiH engage with transitional justice both as subjects and objects.

lessons learned from BiH

The three gendered justice gaps have unmasked transitional justice as a site for
the long-term construction of the gendered post-conflict order. The gendered
justice gaps in BiH point to women’s presence, participation and agency in ‘doing
justice’, and illustrate that women engage with the transitional justice project

38 Valerie Hopkins, ‘“Angelina Jolie Touched Our Souls”: Bosnian Rape Victims Have Their Say’,
The Guardian (online), 15 December 2011 <www.guardian.co.uk/film/filmblog/2011/dec/15/
angelina-jolie-bosnia-rape-victims>.
 Gender And trAnsItIonAl justICe 91

both as objects and subjects. The analysis has brought to the fore a number of
paradoxes illustrating women’s sense of injustice and the failure to meet their
calls for justice. First, the number of war crime cases that involve sexual vio-
lence are extremely low; all the while the fight against impunity remains a top
priority. Security issues remain a problem for witnesses in the domestic court
system and it is clear that the international gains concerning the criminalisation
of conflict-related sexual violence are not made permanently, but under con-
stant negotiation. Second, the post-war narratives marginalise women’s experi-
ences, as victims but also as combatants, perpetrators and peacemakers. Third,
the victims of conflict-related sexual violence remain socially and economically
marginalised, and there have been no comprehensive reparations programmes
to redress the human rights violations. Fourth, complicated legal framework,
institutional complexity and the absence of rights for victims of wartime rape
have impeded access to care, despite awareness that unhealed war traumas lead
to deterioration of survivors’ wellbeing and health. Fifth, state service for victims
of conflict-related sexual violence has largely been absent and in the meantime
women’s organisations have stepped in to assist the victims. In BiH, as in many
other places, a gender-just peace thus remains a distant goal. The gendered
accountability gap, acknowledgement gap and reparations gap remain, and they
seem to reinforce each other, as do the patriarchal, religious and nationalist dis-
courses that impede efforts to address these gaps.

4.5 Conclusion
Research has only begun to investigate how and why the multi-faceted transi-
tional processes develop along exclusionary trajectories that do not overcome
gender inequality but may even exacerbate it. Many caveats remain – for exam-
ple, we know little of the impact of such mechanisms as vetting, official policies
of apology and the societal remembering and forgetting through remembrance
practices. Reparation as a tool for transitional justice needs to be closely anal-
ysed to understand how it affects women’s socioeconomic position. Also there
is a need to trace how the intense focus on sexual crimes might have counter-
productive effects on wider questions of gender justice. Interactions and friction
between different transitional justice mechanisms as well as actors and stake-
holders – international, national and local – within the same post-conflict context
have hardly been studied; a lacuna of the transitional justice literature at large.
Most importantly, a gendering of transitional justice offers the possibility
to rethink basic ideas of transitional justice. It generates some crucial questions
to ask of the transitional justice project in its backward- and forward-looking
dimensions: what were the gender relations that existed before the conflict? What
were the specific experiences of violence for men and women? How can they be
addressed and what consequences do these measures have on men’s and women’s
lives? How does the conflict affect present-day gender relations?
92 BJÖRKDAHL AND SELIMOVIC

Through such explorative work, transitional justice processes can help

improve gender relations and work towards an emancipatory, gender-just peace
where the peace dividend is realised in the everyday. Clearly, such peace is not
simply the reconstruction of the pre-war situation. Rather, it is transformative and
provides for social justice and equity. It is a peace that contributes to a fundamen-
tal shift in the provision of specific rights related to women’s gender roles, to a
transformation of gender relations in society and to a redefinition of hierarchies.
Such peace is the outcome of a transformative process including both gendered
peacebuilding and transitional justice processes.

4.6 summary
This overview of gender and transitional justice started with the observation that
men and women experience different harms and injustices. Thus, transitional jus-
tice tools and mechanisms need to be gender sensitive. By employing a gender
perspective we think differently about what constitutes a crime, what constitutes
appropriate ways of doing justice and what constitutes a victim. Evaluations of
past and present transitional justice practices show that they are highly political,
gendered and tend to reinforce the disadvantages that women face in transitions
to peace, justice and democracy. Over the last two decades, consistent efforts to
address impunity for conflict-related sexual violence have resulted in an inter-
national legal framework for dealing with these crimes. However, convictions
remain few and scattered, and the track record of domestic courts is discourag-
ing. In acknowledgement processes, women are often regarded only as victims of
conflict-related sexual violence, or as witnesses of human rights abuses of male
family members. Little attention is paid to their agency as, for example, peace-
makers or perpetrators. Yet women engage with transitional justice processes both
as objects and subjects. This is particularly clear in efforts of reparative justice.
Reparation holds the potential to address the full scope of violations of a gendered
nature and understand the issue of conflict-related sexual violence in conjunction
with other losses from which women disproportionally suffer. At the same time,
sexual violence directed against men needs to be investigated further. In sum, by
gendering transitional justice processes, they can work towards an emancipatory,
gender-just peace where the peace dividend is realised by both men and women.

4.7 discussion and tutorial questions

1) Which transitional justice mechanism do you think holds most promise to
contribute to a gender-just peace? Why?
2) How can transitional justice address stigma around sexual violence?
 Gender And trAnsItIonAl justICe 93

3) Do you think the criticism against many locally based informal mechanisms
is valid?
4) What does a gender-just peace entail, in your opinion?

suggested reading
Buckley-Zistel, Susanne and Ruth Stanley (eds), Gender in Transitional Justice (Pal-
grave, 2011).
Mibenge, Chiseche Salome, Sex and International Tribunals: The Erasure of Gender
from the War Narrative (University of Philadelphia Press, 2013).
Rubio-Marín, Ruth (ed), The Gender of Reparations: Unsettling Sexual Hierarchies
While Redressing Human Rights Violations (Cambridge University Press,
2009).

suggested films
Crvene Gumene Cizme (Red Rubber Boots) (Directed by Jasmila Žbanić, Deblokada,
2000).
Grbavica: Esma’s Secret (Directed by Jasmila Žbanić, Produced by Tanja Aćimović, 2006).
In the Land of Blood and Honey (Directed by Angelina Jolie, GK Films, 2011).
We Women Warriors (Tejiendo Sabiduría) (Directed by Nicole Karsin, Todos Los
Pueblos Productions, 2012).

Bibliography
Bell, Vikki, The Art of Post-Dictatorship: Ethics and Aesthetics in Transitional Argen-
tina (Routledge, 2014).
Björkdahl, Annika and Johanna Mannergren Selimovic, ‘Gendered Justice Gaps in
Bosnia-Hercegovina’ (2014) 15 Human Rights Review 201.
Björkdahl, Annika and Johanna Mannergren Selimovic, ‘The Gendered Logic of
Forgotten Places’ (2016) Ethnography, forthcoming.
Buckley-Zistel, Susanne and Ruth Stanley (eds), Gender in Transitional Justice (Pal-
grave, 2011).
Burnet, Jennie E, Genocide Lives in Us: Women, Memory, and Silence in Rwanda (Uni-
versity of Wisconsin Press, 2012).
Charlesworth, Hilary, ‘Feminist Methods in International Law’ (1999) 93 American
Journal of International Law 379.
Cockburn, Cynthia, The Line: Women, Partition and the Gender Order in Cyprus (Zed
Books, 2004).
Crvene Gumene Cizme (Red Rubber Boots) (Directed by Jasmila Žbanić, Deblokada,
2000).
Franke, Katherine M, ‘Gendered Subjects of Transitional Justice’ (2006) 15(3)
Columbia Journal of Gender & Law 16.
94 BJÖRKDAHL AND SELIMOVIC

Grbavica: Esma’s Secret (Directed by Jasmila Žbanić, Produced by Tanja Aćimović, 2006).
Hellsten, Sirkku K, ‘Transitional Justice and Aid’ (Working Paper No 2012/06, UNE-
WIDER, January 2012).
Hopkins, Valerie, ‘“Angelina Jolie Touched Our Souls”: Bosnian Rape Victims Have
Their Say’ The Guardian (online), 15 December 2011 <www.guardian.co.uk/
film/filmblog/2011/dec/15/angelina-jolie-bosnia-rape-victims>.
In the Land of Blood and Honey (Directed by Angelina Jolie, GK Films, 2011).
International Centre for Transitional Justice, Colombia’s Justice and Peace Process
(2012) <www.ictj.org/news/feature-series-colombia’s-justice-and-peace-
process>.
Mannergren Selimovic, Johanna, ‘Challenges of Postconflict Coexistence: Narrat-
ing Truth and Justice in a Bosnian Town’ (2015) 36 Political Psychology 231.
McLeod, Laura, Jovana Dimitrijević, and Biliana Rakočević, ‘Artistic Activism, Pub-
lic Debate and Temporal Complexities: Fighting for Transitional Justice in
Serbia’ in Peter D Rush and Olivera Simić (eds), The Arts of Transitional Justice:
Culture, Activism, and Memory after Atrocity (Springer, 2014).
Medica Mondiale, ‘“[…] and that It Does Not Happen to Anyone Anywhere in the
World”: The Trouble with Rape Trials – Views of Witnesses, Prosecutors and
Judges on Prosecuting Sexualised Violence During the War in the former
Yugoslavia’ (Medica Mondiale, December 2009).
Mendes, Isa, Maíra Siman, and Marta Fernandez, ‘The Colombian Peace Nego-
tiations and the Invisibility of the “No” Vote in the 2016 Referendum’ (2019)
Peacebuilding <https://doi.org/10.1080/21647259.2019.1620908>.
Office of the Prosecutor, ‘Sexual and Gender-Based Crimes’ (Policy Paper, Interna-
tional Criminal Court, 5 June 2014) <www.icc-cpi.int/iccdocs/otp/OTP-Policy-
Paper-on-Sexual-and-Gender-Based-Crimes-June-2014.pdf>.
O’Rourke, Catherine, ‘The Shifting Signifier of “Community” in Transitional Jus-
tice: A Feminist Analysis’ (2008) 23(2) Wisconsin Women’s Law Journal 269.
Ramírez-Barat, Catherine (ed), Transitional Justice, Culture and Society: Beyond
Outreach (International Center for Transitional Justice and Social Science
Research Council, 2014).
Rubio-Marín, Ruth, ‘Reparations for Conflict-Related Sexual and Reproductive
Violence: A Decalogue’ (2012) 19(1) William & Mary Journal of Women and the
Law 72.
Ruiz-Navarro, Catalina, ‘A Feminist Peace in Colombia?’ (Heinrich Böll Foundation,
2019) <https://reliefweb.int/report/colombia/feminist-peace-colombia>.
The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: United
Nations Secretary-General’s Report, UN Doc S/2011/634 (12 October 2011)
<www.un.org/en/ga/search/view_doc.asp?symbol=S/2011/634>.
Rush, Peter D and Olivera Simić (eds), The Arts of Transitional Justice: Culture, Activ-
ism, and Memory after Atrocity (Springer, 2014).
Shaw, Ari, ‘Why Colombia’s Peace Process Could Mean Trouble for LGTB Rights’
World Politics Review (2017). <www.worldpoliticsreview.com/articles/22765/
why-colombia-s-peace-process-could-mean-trouble-for-lgbt-rights>.
 Gender And trAnsItIonAl justICe 95

Shepherd, Laura J, ‘Introduction: Rethinking Gender, Agency and Political Vio-

lence’ in L Åhäll and LJ Shepherd (eds), Gender, Agency and Political Violence
(Palgrave, 2012).
Simić, Olivera and Zala Volcic, ‘In the Land of Wartime Rape: Bosnia, Cinema and
Reparations’ (2015) 2(2) Griffith Journal of Law and Human Dignity 378–396.
Sjoberg, Laura and Caron E Gentry, Mothers, Monsters, Whores: Women’s Violence in
Global Politics (Zed Books, 2007).
Subotic, Jelena, Hijacked Justice: Dealing with the Past in the Balkans (Cornell Uni-
versity Press, 2009).
Tickner, J Ann, ‘Feminism Meets International Relations: Some Methodological
Issues’ in Brooke A Ackerly, Maria Stern, and Jacqui True (eds), Feminist Meth-
odologies in International Relations (Oxford University Press, 2006) 19.
United Nations High Commissioner for Refugees, Working with Men and Boy Sur-
vivors of Sexual and Gender-Based Violence in Forced Displacement (July 2012)
United Nations <www.unhcr.org/refworld/pdfid/5006aa262.pdf>.
United Nations Security Council Resolution, SC Res 1325, UN SCOR, 4213th mtg,
UN Doc S/RES/1325 (31 October 2000).
Valji, Nahla, A Window of Opportunity: Making Transitional Justice Work for Women
(October 2012) United Nations Entity for Gender Equality and the Empower-
ment of Women <www.unwomen.org/~/media/Headquarters/Attachments/
Sections/Library/Publications/2012/10/06B-Making-Transitional-Justice-
Work-for-Women.pdf>.
Volcic, Zala and Olivera Simić, ‘Geographies of Crime and Justice in Bosnia and
Herzegovina’ in Annika Björkdahl and Susanne Buckley-Zistel (eds) Spatial-
izing Peace and Conflict: Mapping the Production of Places, Sites and Scales of
Violence (Palgrave, 2016).
Zalewski, Marysia, ‘Well, What Is the Feminist Perspective on Bosnia?’ (1995) 71(2)
International Affairs 338.
Zarkov, Dubravka, The Body of War (Duke University Press, 2007).

Cases
Prosecutor v Akayesu (International Criminal Tribunal for the Former Yugoslavia,
Trial Chamber I, Case No ICTR-96-4-T, 2 September 1998) <http://unictr.unmict.
org/sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/
en/980902.pdf>.
Prosecutor v Kunarac, Kovac and Kukovic (International Criminal Tribunal for the
Former Yugoslavia, Trial Chamber, Case No IT-96-23-T&IT-96-23/1-T, 22 Feb-
ruary 2001) <www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf>.
Chapter 5

Truth and reconciliation

commissions

Agata Fijalkowski

‘Do you want to remember, or to forget?’1

5.1 Definition and key components

(truth/reconciliation/commission)
How can we define a truth and reconciliation commission? The three main ele-
ments of truth, reconciliation, and commission carry broad responsibilities and
expectations. In her study on truth commissions, Hayner notes:

A truth commission (1) is focused on the past, rather than ongoing events;
(2) investigates a pattern of events that took place over a period of time; (3) engages
directly and broadly with the affected population, gathering information on their
experiences; (4) is a temporary body, with the aim of concluding a final report; and
(5) is officially authorised or empowered by the state under review.2

As we shall see, as Hayner rightly suggests, it is vital not to define truth and
reconciliations commissions too narrowly. It is also immediately apparent that a
commission is distinct from a governmental human rights body or from a judicial
commission of inquiry. In fact, truth commissions have been created under many
names. A brief historical overview is needed before going on to the purpose of
these bodies. A better understanding of the key components will arise when a
closer look is taken at the criteria needed for a commission’s actual operation. This

1 Priscilla B Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commis-
sions (Routledge, 2nd edn, 2011) 1.
2 Ibid 11–12.
98 AGATA FIJALKOWSKI

chapter will focus on key questions concerning their work and refer to important
examples throughout the discussion.

5.2 Brief historical overview

The first truth commission was established in Argentina in 1981. It was known
as the National Commission on the Disappeared (CONADEP). The term ‘truth
commission’ would emerge later. CONADEP was created in response to the indi-
viduals who disappeared following an intense and brutal government campaign
perceived subversives. When the military forces seized power in 1976, the com-
munists became the main targets for elimination, resulting in some 10,000 to
30,000 people arrested, tortured, and killed. The bodies were disposed of with the
purpose of never being found. As a result, families were in anguish at not knowing
the fate of the victims. Before acquiescing to popular elections (as discussed in
Chapter 6 in this volume, Agata Fijalkowski, ‘Amnesty’) and a return to civil-
ian rule, the military granted themselves immunity from prosecution and also
promulgated a decree ordering the destruction of all documents concerning this
violent government campaign of disappearance.
CONADEP was created under Raúl Alfonsín’s presidency (1983–1989). Pres-
ident Alfonsín carefully selected the ten members of the commission, which was,
after an initial resistance, assisted by non-governmental organisations (NGOs).
CONADEP would receive no cooperation from the Argentine armed forces. In
terms of its operation, the commission held no public hearings. The commission’s
profile, however, was very public, in the sense that the commission’s existence
and function were known to most people and were widely discussed in the regu-
lar media. CONADEP collected 7,000 statements over a nine-month period, and
documented 8,960 individuals who had disappeared. Importantly, among those
interviewed were 1,500 persons who could provide details about the conditions of
detention and methods of torture, which aided the commission in identifying the
detention centres. Some 365 torture centres were uncovered.3
When the commission released a full report, Nunca Más (Never Again), to
the president, it was a top seller and a publication that was in demand.4 Parts of
the report contained critical information that was presented to the prosecution,
which was key to the trial of several of the military juntas – indeed, five were

3 Ibid 46.
4 Nunca Más, Report of the Argentine Commission on the Disappeared (Farrar, Straus & Giroux,
1986) and Emilio Crenzel, ‘Argentina’s National Commission on the Disappearance of Persons:
Contributions to Transitional Justice’ (2008) 2 International Journal of Transitional Justice
173–191.
 TRUTH AND RECONCILIATION COMMISSIONS 99

successfully charged and imprisoned. However, the prosecution’s momentum

was short-lived; even those convicted were pardoned by incoming president Car-
los Menem.5 In 1995, information was provided by one of the key perpetrators
involved in death flights, in which detainees were drugged and dropped from
airplanes into the sea. Also that year, the commander-in-chief of the army pub-
licly acknowledged the crimes of the Dirty War. In 1998, criminal trials began for
cases of kidnapping (these were excluded from amnesty).6 In 1999, full investi-
gations were carried out to identify – publicly – individuals responsible, before
they could apply for amnesty. In 2001, the highest court held the amnesty provi-
sions unconstitutional. In 2003, the Argentine parliament, supported by political
will, overturned the amnesties with retroactive effect. By 2009, 1,400 individu-
als were charged for crimes of the Dirty War,7 and 68 per cent were convicted
by 2011.8 Thus, it can be said that Argentina arguably paved the way for such
commissions.
The next important example is Chile. Here we see ‘truth commission’ appear
as part of the name of the body itself: National Commission on Truth and Recon-
ciliation. The military coup in Chile in September 1973 characterised 17 years of
dictatorial rule under General Augusto Pinochet. During this time, independent
organisations challenged almost every case of illegal detention or disappearance in
court. The national courts rarely supported claims against the regime’s actions. Yet
the work of the independent organisations was invaluable, as they kept clear records
of the individuals detained or disappeared. Despite the repressive rule, it is impor-
tant to note that Pinochet was a popular figure in a conservative, right-wing Chilean
society. The changes Pinochet made before civilian rule took over are discussed in
Chapter 6 in this volume, Agata Fijalkowski, ‘Amnesty’. These changes constrained
the leadership of civilian rule. Yet President Patricio Aylwin (1990–1994) set up a
National Commission on Truth and Reconciliation that comprised eight members,
four of whom were supporters of Pinochet. The commission’s mandate was to inves-
tigate ‘disappearances after arrest, executions, torture leading to death committed
by government or people in their service, as well as kidnappings and attempts on the
life of persons carried out by private citizens for political reasons’.9 The mandate,
however, did not include cases of torture that did not result in death. The practices

5 Hayner, n 1, 46.
6 Ibid 47.
7 ‘Dirty War’ refers to the campaign by the Argentine government against suspected dissidents and
subversives.
8 Hayner, n 1, 47.
9 Decree Establishing the National Commission on Truth and Reconciliation, Supreme Decree No
355, Chile (25 April 1990) reprinted in Neil J Kritz (ed), Transitional Justice: How Emerging
Democracies Reckon with Former Regimes (US Institute of Peace, vol 3, 1995) 102.
100 AGATA FIJALKOWSKI

of torture were described in some detail in the commission’s report but only after
the setup of a second commission in 2003 (under President Ricardo Lagos) was
there a specific focus on torture survivors.
The 1990 commission had only nine months to conclude its findings. During
that time the commission was able to conduct more thorough investigations of its
small number of cases, using the invaluable work of independent organisations.
It was focused on developing as complete a picture as possible as to the viola-
tions of human rights that occurred. It had no power to subpoena and it received
little cooperation from the armed forces. When the report was released, in 1991,
its 1,800 pages provided a powerful indictment against the Pinochet regime. The
report confirmed that 95 per cent of the violations were ascribed to state agents
and 4 per cent to leftist groups. In the aftermath of its release, President Aylwin
asked for forgiveness from the victims and emphasised the need for forgiveness
and reconciliation, asking the armed forces to recognise the victims’ plight. In
response, Pinochet responded with a detailed expression of disagreement with the
commission’s report. The report was not as widely publicised as the Argentine
one. Any discussions about reconciliation petered out. It was not until Pinochet’s
arrest in London in 1998 that the issue of past human rights violations could be
discussed openly and widely.10 The Spanish judge requesting Pinochet’s extradi-
tion used the commission’s report, while the national prosecuting authorities used
the report in building their cases.11
Uruguay offers a different trajectory to Argentina and Chile in its confronta-
tion with the past. In April 1985, after 11 years of military rule, Uruguay estab-
lished the Investigative Commission on the Situation of the ‘Disappeared’ People
and Its Causes. The commission faced resistance on the part of the state authori-
ties, namely the president, Julio María Sanguinetti, who ruled Uruguay from
1985 to 1990 and again from 1995 to 2000, and who refused to cooperate with
the investigations, or to disseminate or publish the commission’s findings, or to
launch any official investigations further to the commission’s work.12 Two sets of
amnesty laws were passed at the time the commission was set up. The first was the
March 1985 Law of Amnesty for most political prisoners and the second was the
December 1986 Law of Expiry that granted immunity to members of the security

10 See, e.g., David Sugarman, ‘The Pinochet Case: International Criminal Justice in Gothic Style’
(2001) 2 Modern Law Review 933.
11 By the end of 2009, 779 former officials were charged with human rights crimes. Over 200 were
convicted. Ibid.
12 Priscilla B Hayner, ‘Fifteen Truth Commissions – 1974 to 1994: A Comparative Study’ (1994) 16
Human Rights Quarterly 597 at 616–617.
 TRUTH AND RECONCILIATION COMMISSIONS 101

forces involved in acts in violation of human rights prior to 1 March 1985.13 The
events in Argentina and Chile did not go unnoticed by Uruguayan society and
state authorities. The Law of Expiry was challenged unsuccessfully by supporters
of civil society and human rights,14 despite slow progress being made in reveal-
ing the scale of human rights violations and creating meaningful dialogues across
various sectors of society, including state actors who admitted their involvement
in these abuses.15 The lack of progress in holding perpetrators of human rights
violations accountable for their actions, as well as the absence of details about
the victims and the fate of the disappeared, meant that the question of dissent and
discussions about the future shifted into the ‘realm of public debate and culture’.16
A 1992 report written by the Inter-American Commission on Human Rights found
that the Law of Expiry violated key provisions of the American Convention on
Human Rights. The law was eventually repealed, in 2011, under then president
José Mujica, creating the possibility of criminal prosecutions. In May 2019, the
state prosecutor brought charges of torture against seven members of the national
air force.17 However, a 2019 report issued by Amnesty International shows that
impunity for crimes against humanity and for human rights violations committed
between 1975 and 1985 continues to be largely ignored by the state authorities.18
At the time of writing, the country’s president was Tábare Vázquez (2015–2020).
The current president is Luis Alberto Pou.

5.3 Purpose
A truth commission is a specific category for dealing with the past. Although
meant to be independent, truth commissions can have an uneasy relationship with
the law, in particular with criminal justice. There are several important questions

13 A National Repatriation Commission was also created to help exiles who wished to return home.
See Luis Roniger, ‘Transitional Justice and Protracted Accountability in Re-democratised Uru-
guay’ (2011) 43 Journal of Latin American Studies 693.
14 Elin Skaar, ‘Uruguay: Reconstructing Peace and Democracy through Transitional Justice’ in Elin
Skaar, Camila Gianella Marca, and Trine Eide (eds), After Violence: Transitional Justice, Peace
and Democracy (Routledge, 2015) 67–93.
15 Roniger, n 13, 698.
16 Roniger, n 13, 699. Alexandra Barahona de Brito, Human Rights and Democratisation in Latin
America: Uruguay and Chile (Oxford University Press, 1997).
17 ‘Uruguay: 7 Military Prosecuted for Torture during Dictatorship’, Telesur, 11 May 2019
<www.telesurenglish.net/news/Uruguay-7-Military-Prosecuted-for-Torture-During-Dictator-
ship-20190511-0014.html>.
18 Amnesty International, ‘Uruguay: Time to Address Impunity for Crimes against Humanity’, 4 July
2019 <www.amnesty.org/download/Documents/AMR5207702019ENGLISH.PDF>.
102 AGATA FIJALKOWSKI

about operations and management that determine a commission’s competence

and ultimately its effectiveness.
Many commissions have been created by presidential decree. The executive
selects its members and sets the commission’s mandate. The classic examples are
that of Argentina and Chile. One argument for this way of establishing a commis-
sion is that it is less time consuming than relying on a parliament to pass the rel-
evant legislation. Ideally, a commission should see public engagement and debate
as part of the transitioning process and ownership. This latter element refers to
individual or collective ownership over the process of revisiting the past; it is also
about being involved in how this past (or predecessor state’s history) should form
part of the transitioning state’s future. Examples of commissions set up through
presidential actions are Argentina, Chad, Chile, Haiti, Sri Lanka, and Uganda.
With the exception of Argentina and Chile, where the civilian presidents took
advantage of public support, the remainder of examples had little public debate
on the commission’s terms.
Other truth commissions are created through peace accord. One important
example is Sierra Leone, discussed later in this chapter. Other examples include
El Salvador, Guatemala, Liberia, the Democratic Republic of Congo, and Kenya.
The El Salvadoran and Guatemalan commissions were administered by a UN
office and had members appointed by the UN, but did not operate as UN bod-
ies per se. For example, in terms of identity, the Guatemalan Commission was
‘located in a no man’s land between domestic and international law’.19 In most
cases the terms of agreement were outlined in the national legislation.
Many commissions suffer from weak management. The head of the com-
mission is an important post and one that should be headed by a respected and
impartial individual. The selection of the members of the commission is an under-
appreciated process. In many cases the selection of members has been done too
hastily, and with little consultation. One of the best examples of a strong commis-
sion, based on the independence and knowledge of its members, is in Ecuador,
where a number of commissioners came from non-governmental organisations,
in order to ensure that human rights activists worked with military representatives
on the commissions.20 In Guatemala, members were selected from a list proposed
by presidents of national universities.21

19 See Hayner, n 1, 211. See Agreement on the Establishment of the Commission to Clarify Past
Human Rights Violations and Acts of Violence that Have Caused the Guatemalan Population to
Suffer, UN Doc A/48/954/S/1994/751, Annex II (23 June 1994).
20 Hayner, n 1, 68–69.
21 Ibid 32–35.
 TRUTH AND RECONCILIATION COMMISSIONS 103

Commissions can be international, in both commission members and staff. In

El Salvador, for example, the three commissioners and 25 staff members were all
foreign.22 As noted above, the commission was set up under UN administration.
The commission tried to avoid hiring anyone with previous experience of working
on El Salvadoran human rights issues, as such familiarity might have suggested a
bias that could have affected the neutrality of the commission. Importantly, most
El Salvadorans agreed that an El Salvadoran–staffed truth commission was not
possible. They insisted that there were no El Salvadorans with the authority and
political neutrality needed for the job. It was unlikely that a national commis-
sion would have been able to function otherwise. Witnesses would have perhaps
been intimidated into giving testimony to fellow El Salvadorans because of their
inability to trust the confidentiality of the process. This was evidenced in events
that transpired after the creation of the follow-up commission looking into death
squads.23 The commission recommended the removal of members of the armed
forces from their positions as a result of human rights abuses. In addition, the
confidential report recommended that more than 100 persons should be removed
from the service. The members of the commission received death threats, and two
of the three left the country.
Other truth commissions have created a mixed model of national and interna-
tional staff, while some countries exclude foreigners because the situation under
investigation is too complex for outsiders, or also because the national pool from
which to select staff is sufficient. Funds are relevant to the kind of commission
that is set up. As we shall see below, where resources, in the form of individu-
als with the requisite knowledge as well as the physical space, are not available
nationally, financial support from an international organisation is critical. It does
not, however, produce effective results.
One of the most important questions about commission work is when should
it start. A quick start has its advantages. The political momentum and popular sup-
port for such an initiative are highest at the point of transition or initially, when a
new government takes power or an armed conflict has ended. An early start can also
hold off on immediate reforms and other measures of accountability, providing the
government with time to reflect, plan, and strengthen institutions integral to the tran-
sitional justice initiative. For example, one of the main contributions of the Chilean
commission was giving President Aylwin a year of grace. In certain contexts, this
time is needed in order to ensure measures are in place for the transitional justice

22 Ibid.
23 For background on the conflict see Martha Doggett, Death Foretold: The Jesuit Murders in El
Salvador (Georgetown University Press, 1993) and Teresa Whitfield, Paying the Price: Ignacio
Ellacuría and the Murdered Jesuits of El Salvador (Temple University Press, 1995).
104 AGATA FIJALKOWSKI

mechanism to work. This allowed democratic institutions adequate space to work

for one year before having to deal with past crimes and human rights violations. As
noted by some scholars, a quickly created commission can be the ‘centerpiece of a
newfound peace’ and one that ‘often tests the boundaries of the new regime’ and the
willingness of authorities to cooperate with an independent investigation.24
It is vital to keep the tenure of the truth commission short. Very few are
longer than two years. Extending the tenure runs the risk of losing momentum,
focus, and both political and public attention. Outlining a work plan, collecting
and organising the documents, receiving and processing testimony from thou-
sands of victims, selecting representative cases, completing investigations, and
finalising a report in a two-year period is undoubtedly a challenge. However, it is
useful if the report comes out when there is still the momentum of transition, and
reconciliation is a real prospect. This can occur when there are public calls for
change and a public trust in this transitional justice measure. This way, the recom-
mendations made by the commission have a better chance of being implemented.
For example, the Commission of Inquiry for Uganda was created in 1986. But this
commission was given no time limit and, as a result, it concluded its work nine
years later.25 By then the public had lost interest in the commission’s work.
Most truth commissions base their work on testimonies gathered from thou-
sands of victims, witnesses, and perpetrators. The findings can be standardised
to reveal trends and patterns that would otherwise be unknown. If resulting in no
fine, imprisonment, or other judicially imposed punishment, a truth commission’s
findings may negatively affect the persons and institutions named as responsible
for abuses. To assign responsibility for killings or torture to one sector of the mili-
tary or police might or should have implications for the future of the force and
the culpability of the commanding officer. Reparations or other initiatives will be
affected by the commission’s conclusions about who the victims were, whether
they were apolitical citizens caught up in the repression, or politicised supporters
of armed rebels, or members of certain ethnic, regional, or political groups. The
standard of proof of past commissions has varied considerably. For example, the
El Salvadoran Commission created a table setting out standards of proof for its
individual findings. They identified levels of overwhelming evidence, or conclu-
sive evidence to support its findings; substantial evidence, or very solid evidence
to support the commission’s findings; and sufficient evidence, or more evidence
to support the commission’s findings.26

24 Hayner, n 1, 215.
25 Ibid 97–99.
26 Ibid 222.
 TRUTH AND RECONCILIATION COMMISSIONS 105

Many truth commissions are established with or after a reparations pro-

gramme. Even when quite substantial, many reparations programmes alone do
not generally satisfy the victims’ needs for a wider understanding of the events
in question. Some individuals understandably might feel a lack of respect in the
presumption that a cash payment might be sufficient in compensating for their
pain. The manner in which the programme is carried out will help determine how
it is received.
In Brazil, the government set up a reparations programme in 1995, a decade
after the end of military rule. The commission was to provide approximately
US$100,000 to each family in some 135 cases of disappearances (in the case
of Velásquez Rodríguez,27 the Inter-American Court of Human Rights awarded a
lump sum to the next of kin of the victim or to the family). The commission also
had powers to conduct investigations into these cases, and this included exhuma-
tions. The result was an acknowledgement of the facts, and ‘rescuing historical
truths and collective memory was deemed by many as the most relevant contribu-
tions of the process[es]’.28 However, with full disclosure of the truth not forth-
coming, owing to the lack of political will, there has been continued pressure to
establish a follow-up commission to fulfil the task that many families are still
yearning for – to establish where the remains of the disappeared can be found.
These two examples point to the complexities underpinning the design of a
reparations commission – and, again, a universal design is simply not feasible for
the same reasons as discussed in relation to truth commissions.

5.4 Points of contention and controversy

The founding terms of reference of the commission’s mandate can range from a
detailed exposition of competence to a short decree issued by the president. What
is most important is that this is done in consultation with society, in particular with
the victims and victims’ families, and human rights organisations. However, as
seen below, studies carried out on commissions have revealed that there is a lack
of engagement with local practices, which might explain the later lack of com-
mitment to the implementation and the recommendations made by the commis-
sion. This has also resulted in calls for a template that could be adopted by states
that lack the necessary support structures in terms of personnel and resources.
The point of contention centres on ownership: commissions should be nation-
ally established, unique to that place, and reflect a process and involvement of

27 Velásquez Rodríguez, decision from 29 July 1988, Inter-Am Ct HR (ser C) No 4 (1988).

28 Hayner, n 1, 178.
106 AGATA FIJALKOWSKI

the community. This is further supported by the fact that commissions, for many
places, represent the first inclusive process of policymaking in the transitioning
phase towards democracy between various segments of society.29
One of the contentious questions concerns reconciliation itself and what it
should look like. In her examination of whether reconciliation is beginning to be
accepted, Hayner suggests three questions. The first question relates to the way
that the past is dealt with in the public sphere. The key point is whether the people
can talk about past conflicts and abuses with not only each other but with their
former opponents. The second question concerns the basis of the relationships
between former opponents – if they are based on the past or the present. The third
question addresses the past or, rather, which version of the past is being discussed
and scrutinised. This is a paramount issue in this field of transitional justice. In
the context of reconciliation, it means re-establishing relations and reconciling
contradictory facts and stories. It is this third question that begs further research
in this area. Is it possible to establish a ‘single universe of comprehensibility’?30
Where conflict and violence have returned in cycles over generations, perceptions
of the past can vary. This can make reconciliation difficult. Yet there is never
just one truth. Each of us carries our own version of events and our own distinct
memories. These may contradict each other. The process of disproving certain
accounts might lead to an agreed, settled account of history. There will be some
facts that concern the specific crime frame that are basic enough that wide accep-
tance of their truth is necessary before real reconciliation can take place.31
From the perspective of victims, there are a few conditions that are favour-
able and others that are necessary before reconciliation can start to become
accepted. Firstly, there must be an end to the violence or the threat of violence.
Secondly, there should be an officially acknowledged recognition of the violent
past. This should come from the perpetrators or be made by the political leaders.
Thirdly, there must be projects that bring the community together, which enable
relationships to be rebuilt. Fourthly, reconciliation should go beyond psychologi-
cal and emotional processes. It also must address structural inequalities and mate-
rial needs which, for example, the South Africa Truth Commission Report noted
as necessary for success and hope for national unity. These needs have not been

29 Ibid 178.
30 Ibid 189. See Brasil: Nunca Maís (Editora Vozes, 1985) and Torture in Brazil: A Shocking Report
on the Pervasive Use of Torture by Brazilian Military Governments, 1964–1979, trans Jaime
Wright (University of Texas Press, 1998). Also Lawrence Weschler, A Miracle, A Universe: Set-
tling Accounts with Torturers (Penguin, 1990).
31 Richard J Goldstone, ‘Justice as a Tool for Peace-Making: Truth Commissions and International
Criminal Tribunals’ (1996) International Law and Politics 485.
 TRUTH AND RECONCILIATION COMMISSIONS 107

adequately addressed in the period following the report.32 Finally, coming to terms
with the past requires time, and expectations should be adjusted accordingly.
What about when a state decides to leave the past alone? Cambodia is known
for its killing fields of the late 1970s, and Spain is known for its mass graves. The
Khmer Rouge government killed 1–2 million people, comprising up to one-fifth
of the population.33 The manner in which Cambodians have chosen to remember
has been less clear.
When the Khmer Rouge government collapsed in the 1980s, there was an
initial interest in letting the world know about what happened. But the interest
waned, and it was reported that Cambodians preferred to forget the past and many
did not want to discuss it in public. Outside observers stated that among the com-
munity there was still some fear of talking about the past. Also, the Cambodian
and Buddhist faith tradition tended not to confront conflict. However, the UN
mission to Cambodia listed several reasons for this development, the most com-
pelling being that many political, military, and financial elites could be implicated
and, since many in the current government had at one time been affiliated with
the Khmer Rouge, it was felt that accommodation was the preferred choice. As a
result of this ‘hushed’ treatment of the past, the younger generation did not know
the history and in fact doubted their elders’ accounts of atrocities. Instead there
was more focus on the crimes at an international level. In 1994, the US passed
the Cambodian Genocide Act, which provided financial support for the Office of
Cambodian Genocide Investigations at the US Department of State.34 This initia-
tive led to the preservation of documentation that detailed the surveillance prac-
tices of the Khmer Rouge secret police and the structure of the regime.
Some of the Khmer Rouge surrendered in the late 1990s, and suddenly there
was a desire to prosecute, but at the same time there was fear. People wanted to
get on with their lives. A UN group of experts recommended a truth commis-
sion, but several doubted its potential for success as many former Khmer Rouge
members re-entered Cambodian society. In 2003, the government and the UN
signed an agreement to create a special tribunal, the Extraordinary Chambers in
the Courts of Cambodia. By 2006 it was in operation, with five suspects in cus-
tody with trials ready to go. While the need to know what happened seemed to
be strong among Cambodian society, it was felt that the mixed tribunal would not
provide the truth. In this case the international community has an important role

32 Romi Sigsworth and Nahla Valji, ‘Continuities of Violence against Woman in South Africa: The
Limitations of Transitional Justice’ in Susanne Buckley-Zistel and Ruth Stanley (eds), Gender in
Transitional Justice (Palgrave, 2011) 115–135.
33 Hayner, n 1, 204.
34 Ibid 205.
108 AGATA FIJALKOWSKI

to play, by providing the funding and staff to ensure key mechanisms are created
and can operate. However, it cannot fulfil the needs of a society that is divided,
i.e., when there is a fearful silence resulting from suppression or where interests
are better served by silence or by portions of the truth coming out.35
To meet the challenges of transitional justice, a society should investigate,
establish, and publicly disseminate the truth about past atrocities. The hard truth
or forensic truth concerns information about the crime and what human rights
were violated. There is also the emotional truth that refers to knowledge about the
psychological and physical impact on the victims.36 The rhetoric of political truth
makes truth suspect and exploited. Concrete political action to determine what
happened is rare. So the way the past is used has a significant moral dimension. In
other words, the political instrumentalisation of the past needs to be overcome.37
It is this politicisation that results in public dissatisfaction and scepticism about
justice. The frustration is compounded when the report’s findings do not result in
any meaningful outcome.

5.5 Key examples from Europe and Africa

One of the most interesting examples of a commission is the Commission of
Inquiry for the Assessment and Consequences of the Socialist Unity Party (SED)
Dictatorship in Germany, 1992–1994, and the Commission of Inquiry on Over-
coming the Consequences of the SED Dictatorship in the Process of German
Unity, 1995–1998. These German examples show a commission that is involved
in more of a symbolic mission than a fact-finding one. Although the two are sepa-
rate, one led to the creation of the other. In 1992, the German parliament created a
commission to investigate and document the practices of the German Democratic
Republic (GDR, or East Germany) government from 1949 to 1989. The SED was
the ruling party in the GDR. The structure of the commission and its operation
followed the country’s guidelines for parliamentary commissions of inquiry. This
meant that representation of political parties was equivalent to their representa-
tion in parliament as a whole. The SED successor, the Democratic Socialist Party,

35 Hayner notes a similar experience in Mozambique: n 1, 297–204.

36 David A Crocker, ‘Truth Commissions, Transitional Justice, and Civil Society’ in Robert I Roth-
berg and Dennis Thompson (eds), Truth v Justice: the Morality of Truth Commissions (University
of Princeton Press, 2000) 99.
37 For example, this objective motivates the Regional Committee for Establishing the Facts about
War Crimes and Other Gross Violations of Human Rights on the Territory of the Former Yugosla-
via <www.recom.link>.
 TRUTH AND RECONCILIATION COMMISSIONS 109

was represented on the commission with one member. Experts comprised 11 of

the 27 members.
The East German regime is discussed differently in the literature, compared
to its counterparts that were also the subject of commission inquiries. East Ger-
man dictatorial rule physically repressed political opponents and dissidents, con-
trolled freedom of movement, and imposed organised surveillance on some of its
political dissidents. The commission’s mandate went beyond the scope of human
rights violations to a wider inquiry into state policy and practice, which included
an investigation into the structure and practice of the SED regime, environmental
degradation; political, mental, and psychosocial repression; the role of ideology in
education, literature, and daily life; church-state relations, judicial independence,
and relations between West and East Germany.38
Public hearings accompanied the work of the commission. It should be noted
that the commission had no subpoena power; many former government officials
who were invited to give testimony declined for fear that their testimony would
be used against them in court. Importantly, the files from the East German secret
police, the Staatssicherheit, or Stasi, were made available for individual review.
The files permitted those who had been victims of Stasi informers to confront
them directly. This occurred in private or before television cameras. The work of
the commission was shaped by this mandate and thus differed from a commis-
sion such as South Africa’s. Plus the German commission preceded the South
African one. ‘The Commission demonstrates that a victim-centred examination
and discussion of the past and its legacy is possible without a large-scale testi-
mony collection’.39 The first inquiry’s report was released in 1995 and was more
than 15,000 pages. The second commission released its report in 1998. Both
arguably helped to frame the highly controversial question of how to memori-
alise this period.
The South African Truth and Reconciliation Commission is viewed as being
the strongest truth commission. Its creation, in 1995, was a response to the apart-
heid regime, which had lasted 45 years. During this time the African National
Congress (ANC) and other groups carried out armed resistance against the apart-
heid state. South Africa had endured massacres, killings, torture, lengthy impris-
onment of activists, and severe economic and social discrimination against its
majority non-white population.

38 Hayner, n 1, 52–53.
39 Andrew H Beattie, ‘An Evolutionary Process: Contributions of the Bundestag Inquiries into East
Germany to an Understanding of the Role of Truth Commissions’ (2009) 3 International Journal
of Transitional Justice 229.
110 AGATA FIJALKOWSKI

After Nelson Mandela was elected president in 1994, serious discussions

took place regarding the creation of a commission. At the heart of the debate
was whether to grant amnesty to perpetrators of crimes, as insisted upon by the
government and military. This amnesty would then be linked to the truth commis-
sion. Civil society had an important input into the creation of the commission. In
mid-1995 the parliament passed the Promotion of National Unity and Reconcili-
ation Act. Following a public nomination and selection process, 17 commission-
ers were appointed with Archbishop Desmond Tutu as chair. The work officially
began in 1995, but started in 1996 after some delay in investigations.
The commission was given the power to grant individualised amnesty, search
premises and seize evidence, subpoena witnesses, and run a witness protection
programme. It had a staff of 300 and a budget of US$18 million for the first two
and a half years.
The commission took testimony from 21,000 victims and witnesses, 2,000 of
whom also appeared in public hearings.40 Media coverage was widespread, with a
special television programme devoted to its work.
The commission did not always make use of its strong powers. The powers of
subpoena and search and seizure were applied only a few times. It was criticised
by human rights organisations for not issuing a subpoena against the Minister of
Human Affairs. The commission possibly was afraid of a violent reaction.
The greatest innovation of the commission was its ability to grant individual-
ised amnesty.41 The period covered by the amnesty was 1960 to April 1994, dur-
ing which 7,115 applications for amnesty were received. If the crimes concerned
gross violations of human rights, the applicant was required to appear at a public
hearing to answer questions from the commission, from legal counsel represent-
ing the victims or victims’ families, and from the victims themselves. Amnesty
was granted to those who fully confessed to their involvement in past crimes and
showed them to be politically motivated. The Amnesty Committee considered a
number of factors in determining whether the applications satisfied requirements.
A significant factor was whether the crime was politically motivated. In fact,
4,500 applications were denied; most of them lacked a political objective. Neither
an apology nor any sign of remorse was necessary to be granted amnesty, so as
to avoid inducing fake apologies. Of course, some perpetrators showed remorse
and apologised.
There were several high-profile trials that resulted in convictions. But when
the trial of the former Minister of Defence, Magnua Malan, ended in acquittal, it

40 Hayner, n 1, 28.
41 Ibid 29.
 TRUTH AND RECONCILIATION COMMISSIONS 111

was felt that the threat of prosecution was not strong enough to persuade senior-
level perpetrators to take advantage of the amnesty process. Several key amnesty
decisions should be noted, such as the Stephen Biko case, where the admitted
killers of the anti-apartheid activist were denied amnesty on the grounds that the
perpetrators claimed that the death was accidental. Another controversial ruling
was granting amnesty to 37 ANC leaders who applied jointly. Few details were
provided. The commission granted the group collective amnesty, a decision that
was later overturned by the Cape Town High Court on the grounds that they did
not make the full disclosures as required by the amnesty provisions. The crimes
were gross human rights violations, but no further action has been taken, owing
to lack of evidence, despite calls for prosecution by former South African police
and generals.42
The Truth Commission did have its powers and decisions challenged in court.
The decisions showed the dissatisfaction felt by some as regards the amnesty
laws. Cassese recognised the difficult and sensitive nature of the project during
the country’s transitioning.43 In his analysis of the goals of international criminal
justice, he draws our attention to the dilemma that amnesty laws present and refers
us to the South African Constitutional Court case of Azanian Peoples Organiza-
tion v President of the Republic of South Africa.44 In this ruling from 25 July
1995, the act was upheld and, within that, its amnesty laws. The Court saw the
commission as a suitable solution for a country that was transitioning from one of
terror towards democracy. Cassese makes an important point here regarding the
choice to establish a commission, which might not be suitable for all transition-
ing states. He uses the example of former Yugoslavia to indicate that perhaps a
commission might not be best suited to a transition in which, broadly speaking,
a socialist democracy is transitioning to several ethnically based mini-states that
remain antagonistic towards one another. In this vein, however, it is worth noting
that a civic initiative in 2005, namely the Regional Committee for Establishing
the Facts about War Crimes and Other Gross Violations of Human Rights on the
Territory of the Former Yugoslavia, was established. Known as RECOM, it con-
tinues to be an unfinished political project. RECOM does not include ‘truth’ in
its name, but rather ‘facts’, in an effort to overcome political instrumentalisation

42 Lovell Fernandez, ‘Post-TRC Prosecutions in South Africa’ in Gerhard Werle (ed), Justice in
Transition: Prosecution and Amnesty in Germany and South Africa (BWV Berliner Wissenschafts
Verlag, 2006) 65. See also Hayner, n 1, 29–30.
43 Antonio Cassese, ‘Reflections on International Criminal Justice’ (1998) 61 Modern Law Review 1.
44 Azanian Peoples Organization v President of the Republic of South Africa [1996] 4 SA 671.
112 AGATA FIJALKOWSKI

and to counter the political memory of the past.45 RECOM endeavours to create
a space for victims by frequently referring to victims in its fact-finding. Facts can
provide that necessary shift whereby victims become subjects with a name and
story. Facts become meaningful when the victim’s story is heard.46
Another factor that is discussed in Azanian Peoples concerns the difficulty
of carrying out prosecutions – due to secrecy and the inability to collect the
required proof to secure a prosecution. Moreover, in that case the court asserted
that amnesty, under the terms of the act, was not awarded automatically and had
to meet strict criteria. Sometimes amnesty and truth commissions are preferable to
prosecutions, when the domestic system is too fragile to pursue the trials against
the threat of political instability.47
It should be noted that charges were brought against former president of
South Africa PW Botha after he refused to appear before the commission fol-
lowing a subpoena. The trial then became a forum for the commission to present
its evidence against him, which included his knowledge or approval of a long
pattern of state crimes. Botha was convicted and fined and given a one-year sus-
pended sentence. He successfully appealed to have his conviction overturned on
a technicality.48
In another case, involving former South African president FW de Klerk, the
work of the commission was temporarily blocked after de Klerk tried to stop the
commission from naming him in the report. For its part, the ANC also attempted
to block the publication of the commission’s report. The ANC was not satisfied
with the conclusions drawn about its past actions. When the report was formally
considered by the parliament, deputy president Thabo Mbeki, speaking in his
capacity as president of the ANC, announced that the ANC had serious reserva-
tions about the commission’s report – noting that its findings seemed to delegiti-
mise the ANC’s struggle for liberation. In the end the government did not make
any commitment to implement the commission’s recommendations because of
these reservations.
The impact of the South African Truth and Reconciliation Commission on
reconciliation has been the subject of ongoing debate. ‘What remained clear to

45 Regional Committee for Establishing the Facts about War Crimes, n 30. Jacqueline Nießer, ‘A
Truth and Reconciliation Commission That Dispenses with Truth? The Regional Committee for
Establishing the Facts about War Crimes in the Yugoslav Wars’ (Paper presented at the Association
for Slavic, East European and Eurasian Studies Conference, Philadelphia, PA, USA, November
2015).
46 Ibid.
47 Cassese, n 43, 4.
48 Hayner, n 1, 30–31.
 TRUTH AND RECONCILIATION COMMISSIONS 113

all, however, was that coming to terms with decades of abuses would take longer
than a few years, and much more than speaking the truth’.49
The Sierra Leone Truth and Reconciliation Commission and its work give
rise to similar concerns, as well as other factors that identify other features of
the work of a truth commission. An agreement for the Sierra Leone Truth and
Reconciliation Commission was found in the Lomé peace accord that ended the
country’s civil war in July 1999. The agreement was signed into law through the
Truth and Reconciliation Act in February 2000. After some delay owing to fight-
ing between the government and rebel fighters, a public process was initiated to
secure nominations for commissioners. According to the act, the commission was
to undertake research, receive statements, and hold sessions with the aim of estab-
lishing ‘an impartial historical record of violations and abuses of human rights
and international humanitarian law related to the armed conflict in Sierra Leone’,
from the beginning of the conflict in 1991 to January 2002. The act places special
emphasis on victims of sexual abuse and on children who were either victims
or perpetrators (child soldiers). While the commission was meant to be a fully
independent body, it was later decided that it would be administratively managed
by the UN Office of the High Commissioner for Human Rights (OHCHR). While
the OHCHR assisted with fundraising and administrative support, some questions
were raised concerning the commission’s independence in making operational
decisions. The operating budget was less than US$5 million; limited finds and
a strict timeline reduced its scope, the taking of statements, and public hearings.
It should be noted that there was strong support for the commission’s work
from former combatants. More than 10 per cent of the statements came from per-
petrators. The more the commission’s work became publicised, the more support
it garnered. In fact, public hearings were held across the country, accompanied by
‘reconciliation ceremonies’, where victims and perpetrators got together and went
through a ritual ceremony to return and be reaccepted to the community. Eventu-
ally the work of the commission overlapped with that of the Special Court for
Sierra Leone, created in 2002 after an agreement between the government and the
UN. The court’s mandate was to prosecute those ‘bearing the greatest responsibil-
ity’ for crimes after November 1996.
The commission published a four-volume report that was concluded in 2004.
It included a video summary and a child-friendly version. In this way the country
hoped to escape the dilemma that was common to other commissions – that of the
government failing to act on the recommendations presented in the final report.
The country set out to implement the recommendations. A follow-up committee

49 Ibid 31–32.
114 AGATA FIJALKOWSKI

was created, with national and international members, which would submit quar-
terly reports and supervise the plan. But these mechanisms were never made
operational.
There was little commitment shown by the government. Despite slow prog-
ress and marginal success in the initiatives eventually put in place for women and
children, there is hope in that the experience has led to important studies about
the shortcomings of commissions. One of the most valuable is that commissions
run counter to local understandings about healing and reconciliation, suggesting
that such operations might pay attention to local practices to overcome obstacles
to healing.50 The experience of Sierra Leone demonstrates the way that aesthetic
encounters, in the form of storytelling, have the potential to overcome the limits
of the law and the politics of reconciliation.51
Studies have shown that truth telling may affect views on group security over
a long-term period in post-conflict societies.52 This is especially so in societies
divided along cultural lines, where truth telling might exert some peace-promoting
influence. Of the documented truth commissions, most are in Africa, followed
by Asia, the Americas, and Europe.53 These recent studies show that there is so
much interest in creating new truth commissions because of their impact on trans-
forming public discourses on memory, truth, justice, and reconciliation. These
new avenues are created even when the commissions seemingly produce modest
changes owing to political constraints.54 It is true that the academic scholarship is
largely based on the better-known commissions. Greater attention from the inter-
national human rights advocacy community tends to focus on criminal justice.
The dominance of this legal perspective may be missing the complexities and
importance of parallel, non-judicial initiatives. Truth commissions directly affect
thousands of victims, and affect the possibility of criminal justice, reforms, repa-
rations, reconciliation, and community relations. The interdisciplinary asset of
the field of transitional justice should be used to carry out deeper legal analysis of

50 Agata Fijalkowski and Sigrun Valderhaug, ‘Legal Decisions, Affective Justice, and “Moving On”?’
(2017) 7(2) Oñati Socio-Legal Series 337. Rosalind Shaw, Rethinking Truth and Reconciliation Com-
missions: Lessons from Sierra Leone – Special Report 130 (United States Institute for Peace: 2005).
51 Fijalkowski and Valderhaug, ibid. For the relationship between law and aesthetics see Agata
Fijalkowski, ‘Musine Kokalari and the Power of Images: Law, Aesthetics and Memory Regimes’
(2015) 28(3) International Journal for the Semiotics of Law 577. See Chapter 11 in this volume,
Olivera Simić, ‘Arts and transitional justice’.
52 David Mendeloff, ‘Truth-Seeking, Truth-Telling, and Post-Conflict Building: Curb the Enthusi-
asm?’ (2004) 6 International Studies Review 355.
53 Tricia D Olsen, Leigh A Payne and Andrew G Reiter, Transitional Justice in Balance: Comparing
Processes (United States Institute of Peace: 2010).
54 Onur Bakiner, Truth Commissions, Memory, Power, and Legitimacy (University of Pennsylvania
Press, 2016).
 TRUTH AND RECONCILIATION COMMISSIONS 115

truth commissions. For example, what is the link between TRCs and courts? Or,
what is the impact on trauma and healing across time and regions? A recent study
on the Liberian Truth and Reconciliation Commission reveals some important
factors that might help explain what underpins the success of a truth commission.
The Liberian Commission was created in 2005 further to the 2003 Accra
Comprehensive Peace Agreement that was concluded to address the country’s
legacy of human rights violations in the context of its civil wars in the period 1979
to 2003. According to Ezekiel Pajibo, ‘Warring parties [in Liberia] agreed to the
TRC concept because they wanted to prevent the establishment of a war crimes
tribunal’.55 One factor that might have influenced this position was the arrest in
2003 of Charles Taylor on charges of war crimes and crimes against humanity in
Sierra Leone by the Special Court for Sierra Leone.
The Liberian Commission investigated violations that occurred between Jan-
uary 1979 and October 2003, marking the period of the final year of the Americo-
Liberian rule and the inauguration of the National Transitional Government
for Liberia.56 The commission included nine commissioners: out of nine, four
women were in the commission for gender balance. Gender is often neglected in
the transitional justice process, and scholars have argued that transitional justice
mechanisms require a change in procedures (such as memberships on truth com-
missions) to address this inequality.57 Due to the absence of adequate funding
and resources the commission, did not have the expertise to make a solid legal
evaluation of the cases. The final report of the commission was made in 2008,
when it was presented to the Liberian legislature. It contains four volumes. One
of the most unique contributions is the commission’s inclusion of the diaspora
community throughout the report. This is the first of its kind. The involvement
of the community was paramount, as thousands fled the conflict, creating large
communities in West Africa, Europe, and the United States. Their contribution
included outreach, statement taking, report writing, and being present at the pub-
lic hearings.
Another unique contribution of the commission was the Palava Hut Forum as
a complementary tool for justice and national reconciliation. This process recom-
mended that the process be based on traditional dispute resolution mechanisms.
The Palava Hut process was used in pre-settler Liberia. It was convened by elders

55 Ezekiel Pajibo, ‘Civil Society and Transitional Justice in Liberia: A Practitioner’s Reflection from
the Field’ (2007) 1 International Journal of Transitional Justice 287.
56 Carla de Ycaza, ‘A Search for Truth: A Critical Analysis of the Liberian Truth and Reconciliation
Commission’ (2013) 14 Human Rights Review 189.
57 Vasuki Nesiah et al, Truth Commissions and Gender: Principles, Policies and Procedures: Report
(International Center for Transitional Justice: 2006).
116 AGATA FIJALKOWSKI

to resolve community matters. Traditionally a confession was sought for the

wrongful deed, followed by an apology for the wrong committed, forgiveness
from the victim, and cleansing rituals and restitution. This sanction was limited
to lesser crimes only and not available for international crimes. Significantly, the
informal justice system had more support and trust than the formal court system.
The Liberian Commission Report also included an investigation of economic
crimes, as the exploitation of resources was one of the primary causes underpin-
ning the conflict. The report sets out an extensive definition of the crimes, as well
as a list of individuals and corporations that the commission holds responsible for
economic crimes.
The Liberian Commission’s work has made an invaluable contribution to the
mapping of human rights abuses. As part of its mandate, it conducted the National
Conflict Mapping Survey that identified emerging conflict issues with the poten-
tial to undermine the peace process and which would influence the ‘conflict sensi-
tive’ policy recommendations it would make. Despite the difficulties, the Liberian
Commission succeeded in making an original and important contribution to our
understanding of transitional justice and its many mechanisms. It succeeds in
advancing our critique about the role of the law in the area, and acknowledging
the vital role that non-legal actors and other forms of knowledge have to play in
the area of reconciliation.58

5.6 Summary
This chapter has considered the definition of a truth and reconciliation commis-
sion and that its key components – truth, reconciliation, and commission – that
carry a plethora of responsibilities and expectations.
The founding terms of reference of the commission’s mandate can range
from a detailed exposition of competence to a short decree issued by the presi-
dent. What is most important is that this is done in consultation with society, in
particular the victims and victims’ families, human rights organisations, and key
independent actors. However, as seen above, studies carried out on commissions
have revealed that there is a lack of engagement with local practices, which might
explain the later lack of commitment to the implementation of the recommenda-
tions made by the commission. Also, this has resulted in calls for a template that
could be adopted by states that lack the support structures. Another controversial
and highly significant point arises in relation to ownership: commissions should

58 Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’

(2007) 34 Journal of Law and Society 411.
 TRUTH AND RECONCILIATION COMMISSIONS 117

be nationally established, unique to that place, and reflect a process that involves
the community. Commissions, for many places, are the first inclusive process
of policymaking in the transitioning phase towards democracy, between various
segments of society. This begs the question of whether a general standard model
is even possible.
Certainly more studies need to be carried out with respect to the commissions
that have been created, with a view to answering the question of why there is so
much interest in creating new truth commissions. Academic scholarship is largely
based on the better-known commissions. On the part of the international human
rights advocacy community, criminal justice predominates. The dominance of
this legal perspective lacks an appreciation of the complexities and importance
of parallel, non-judicial initiatives. Truth commissions directly affect thousands
of victims, and affect the possibility of criminal justice, reforms, reparations,
reconciliation, and community relations. The interdisciplinary asset of the field
of transitional justice should be used to carry out deeper legal analysis of truth
commissions. For example, what is the link to courts? Or, what is the impact on
trauma and healing across time and regions? The contemporary examples of com-
missions such as Sierra Leone and Liberia bring us close to such an understanding.

5.7 Discussion and tutorial questions

1) Should a truth commission be national, international, or a mix? What consid-
erations are important to bear in mind?
2) When should the work of the commission begin?
3) How long should it carry on?
4) Should there be a general, universal template to assist in the setting up of a
commission?
5) What should be done with the commission’s findings (e.g., prosecution)?
6) Consider whether it should be the role of a commission to decide on the issue
of reparations. Support your answer.
7) What is the role of the international community in the establishment of the
TRCs?

Suggested reading
Blair, James T, ‘From the Numbers Who Died to Those Who Survived: Victim Par-
ticipation in the Extraordinary Chambers in the Courts of Cambodia’ (2009) 31
University of Hawaii Law Review 507.
118 AGATA FIJALKOWSKI

Braithwaite, John, Valerie Braithwaite, Michael Cookson, and Leah Dunn, Anomie
and Violence: Non-truth and Reconciliation in Indonesian Peacebuilding (Austra-
lian National University Press, 2010).
Collins, Cath, ‘Chile 2014 ¿Una Nueva Medida de lo Posible? Verdad, Justicia,
Memoria y Reparaciones Pos Dictadura’ (Research Paper No 15–07, Transi-
tional Justice Research Institute, 25 September 2015) [trans Chile 2014 – New
Possibilities for Post-Dictatorship Truth, Justice, Memory and Reparations].
De Brito, Alexandra, Human Rights and Democratisation in Latin America: Uruguay
and Chile (Oxford University Press, 1997).
Owen, Ursula (ed), Wounded Nations, Broken Lives: Truth Commissions and War
Crimes Tribunals (Index on Censorship, 1996)
Simić, Olivera and Peter D Rush (eds), The Arts of Transitional Justice (Springer,
2012).
Soares, Patrícia Pinto, ‘Positive Complementarity: Fine-Tuning the Transitional
Justice Discourse? The Cases of the Democratic Republic of Congo, Uganda
and Kenya’ in A Fijalkowski and R Grosescu (eds), Post-Dictatorial and Post-
Conflict Transitional Criminal Justice (Intersentia, 2015) 187.
Stovel, Laura, Long Road Home: Building Reconciliation in Sierra Leone (Intersentia,
2010).
Sullo, Pietro, ‘Punishing Mass Atrocities: Penological Developments in the After-
math of the Rwandan Genocide’ in A Fijalkowski and R Grosescu (eds), Post-
Dictatorial and Post-Conflict Transitional Criminal Justice (Intersentia, 2015)
209.

References
Articles/books/reports
Amnesty International, ‘Uruguay: Time to Address Impunity for Crimes
against Humanity’ 4 July 2019 <www.amnesty.org/download/Documents/
AMR5207702019ENGLISH.PDF>.
Bakiner, Onur, ‘Truth Commission Impact: An Assessment of How Commissions Influ-
ence Politics and Society’ (2014) 8 International Journal of Transitional Justice 6.
Bakiner, Onur, Truth Commissions, Memory, Power, and Legitimacy (University of
Pennsylvania Press, 2016).
Beattie, Andrew H, ‘An Evolutionary Process: Contributions of the Bundestag
Inquiries into East Germany to an Understanding of the Role of Truth Com-
missions’ (2009) 3 International Journal of Transitional Justice 229.
Brasil: Nunca Maís (Editora Vozes, 1985).
Brazil Archdiocese of São Paulo, Torture in Brazil: A Shocking Report on the Perva-
sive Use of Torture by Brazilian Military Governments, 1964–1979, trans Jamie
Wright (University of Texas Press, 1998).
Cassese, Antonio, ‘Reflections on International Criminal Justice’ (1998) 61 Modern
Law Review 1.
 TRUTH AND RECONCILIATION COMMISSIONS 119

Crenzel, Emilio, ‘Argentina’s National Commission on the Disappearance of Per-

sons: Contributions to Transitional Justice’ (2008) 2 International Journal of
Transitional Justice 173.
Crocker, David A, ‘Truth Commissions, Transitional Justice, and Civil Society’ in
Robert I Rothberg and Dennis Thompson (eds), Truth v Justice: The Morality of
Truth Commissions (University of Princeton Press, 2000) 99.
De Brito, Alexandra, Human Rights and Democratisation in Latin America: Uruguay
and Chile (Oxford University Press, 1997).
Doggett, Martha, Death Foretold: The Jesuit Murders in El Salvador (Georgetown
University Press, 1993).
Fernandez, Lovell, ‘Post-TRC Prosecutions in South Africa’ in Gerhard Werle (ed),
Justice in Transition: Prosecution and Amnesty in Germany and South Africa
(BWV Berliner Wissenschafts Verlag, 2006) 65.
Ferrara, Anita, Assessing the Long Term Impact of Truth Commissions: The Chil-
ean Truth and Reconciliation Commission in Historical Perspective (Routledge,
2014).
Fijalkowski, Agata, ‘Musine Kokalari and the Power of Images: Law, Aesthetics
and Memory Regimes’ (2015) 28(3) International Journal for the Semiotics of
Law 577.
Fijalkowski, Agata and Sigrun Valderhaug, ‘Legal Decisions, Affective Justice, and
“Moving On”?’ (2017) 7(2) Oñati Socio-Legal Series 337.
Goldstone, Richard J, ‘Justice as a Tool for Peace-Making: Truth Commissions and
International Criminal Tribunals’ (1996) International Law and Politics 485.
Hayner, Priscilla B, ‘Fifteen Truth Commissions’-1974 to 1994: A Comparative
Study’ (1994) 16 Human Rights Quarterly 597.
Hayner, Priscilla B, Unspeakable Truths: Transitional Justice and the Challenge of
Truth Commissions (Routledge, 2nd edn, 2011).
McEvoy, Kieran, ‘Beyond Legalism: Towards a Thicker Understanding of Transi-
tional Justice’ (2007) 34 Journal of Law and Society 411.
Mendeloff, David, ‘Truth-Seeking, Truth-Telling, and Post-Conflict Building: Curb
the Enthusiasm?’ (2004) 6 International Studies Review 355.
Nesiah, Vasuki et al, ‘Truth Commissions and Gender: Principles, Policies and Pro-
cedures’ International Center for Transitional Justice (July 2006).
Nießer, Jacqueline, ‘A Truth and Reconciliation Commission that Dispenses with
Truth? The Regional Committee for Establishing the Facts about War Crimes
in the Yugoslav Wars’ (Paper presented at the Association for Slavic, East
European and Eurasian Studies Conference, Philadelphia, PA, USA, November
2015).
Nunca, Más, Report of the Argentine Commission on the Disappeared (Farrar, Straus &
Giroux, 1986).
Olsen, Tricia D, Leigh A Payne, and Andrew G Reiter, ‘United States Institute of
Peace’ Transitional Justice in Balance: Comparing Processes (2010).
Orentlicher, Diane, ‘Settling Accounts: The Duty to Prosecute Human Rights Viola-
tions of a Prior Regime’ (1991) 100 Yale Law Review 2537.
120 AGATA FIJALKOWSKI

Pajibo, Ezekiel, ‘Civil Society and Transitional Justice in Liberia: A Practitio-

ner’s Reflection from the Field’ (2007) 1 International Journal of Transitional
Justice 287.
Roniger, Luis, ‘Transitional Justice and Protracted Accountability in Re-democra-
tised Uruguay’ (2011) 43 Journal of Latin American Studies 693.
Shaw, Rosalind, United States Institute for Peace, Rethinking Truth and Reconcili-
ation Commissions: Lessons from Sierra Leone – Special Report 130 (February
2005).
Sigsworth, Romi and Nahla Valji, ‘Continuities of Violence against Woman in South
Africa: The Limitations of Transitional Justice’ in Susanne Buckley-Zistel and
Ruth Stanley (eds), Gender in Transitional Justice (Palgrave, 2011) 115.
Skaar, Elin, ‘Uruguay: Reconstructing Peace and Democracy through Transitional
Justice’ in Elin Skaar, Camila Gianella Marca, and Trine Eide (eds), After Vio-
lence: Transitional Justice, Peace and Democracy (Routledge, 2015) 67–93.
Sugarman, David, ‘The Pinochet Case: International Criminal Justice in Gothic
Style’ (2001) 64 Modern Law Review 933.
‘Uruguay: 7 Military Prosecuted for Torture during Dictatorship’, Telesur, 11 May
2019 <www.telesurenglish.net/news/Uruguay-7-Military-Prosecuted-for-Torture-
During-Dictatorship-20190511-0014.html>.
Weschler, Lawrence, A Miracle, A Universe: Settling Accounts with Torturers (Pen-
guin, 1990).
Whitfield, Teresa, Paying the Price: Ignacio Ellacuría and the Murdered Jesuits of El
Salvador (Temple University Press, 1995).
Ycaza, Carla de, ‘A Search for Truth: A Critical Analysis of the Liberian Truth and
Reconciliation Commission’ (2013) 14 Human Rights Review 189.

Cases
Azanian Peoples Organization v President of the Republic of South Africa [1996] 4
SA 671.
Velásquez Rodríguez, decision from 29 July 1988, Inter-Am Ct HR (ser C) No 4 (1988).

Legislation
Decree Establishing the National Commission on Truth and Reconciliation,
Supreme Decree No 355, Chile (25 April 1990) reprinted in Neil J Kritz (ed),
Transitional Justice: How Emerging Democracies Reckon with Former Regimes
(US Institute of Peace, vol 3, 1995) 102.

Other
Agreement on the Establishment of the Commission to Clarify Past Human Rights Vio-
lations and Acts of Violence That Have Caused the Guatemalan Population to Suf-
fer, UN Doc A/48/954/S/1994/751, Annex II (23 June 1994).
 TRUTH AND RECONCILIATION COMMISSIONS 121

Regional Committee for Establishing the Facts about War Crimes and Other Gross
Violations of Human Rights on the Territory of the Former Yugoslavia <www.
recom.link>.

Suggested documentaries and films

A Long Night’s Journey into Day (Directed by Deborah Hoffman and Francis Reid,
Francis Reid Productions, 2000). Plays
Beasts of No Nation (Directed by Cary Fukunaga, Princess Grace Foundation, 2015).
Cry Freetown (Directed by Sorious Samura, CNN Productions, 2000).
Life Does Not Lose Its Value: Father Berton and the Former Soldiers of Sierra Leone
(Directed by Wilma Massucco, Bluindaco Productions, 2012).

Plays
Eclipsed (Written by Danai Gurira, opened 2015).
Chapter 6

Amnesty

Agata Fijalkowski

6.1 Introduction
The topic of amnesty is a vital one in transitional justice scholarship. As a politi-
cal tool it has historically provided the state the means to suppress dissent, com-
promise with its enemies, as well as to protect its own state agents implicated in
crimes. In terms of transitional justice, which concerns the ways in which the state
addresses a predecessor state’s crimes, it has a more poignant meaning that can
seemingly go against calls for justice.
Amnesty might not be all that it seems. A closer study of amnesty offers
an important means to explore more critically the legal measures concerning
extradition, or those resulting in impunity – both of which come to the fore as
victims and states try and reconcile the demands of justice and the demands of
peace. This particular debate concerning its goals – peace or justice – has gone
on for some time.
In recent years, however, a change can be noted. For example, there has been
another prominent shift protecting state agents from criminal prosecution. What is
more surprising is the location of the change – namely the United States (US). The
US has traditionally maintained a position which holds that the non-extradition of
its citizens – and those of its allies – is strictly adhered to in the name of peace.1
The US is not alone in its approach, a position that is the subject of ongoing
consideration.2

1 Helen Duffy, The ‘War on Terror’ and the Framework of International Law (University Press, 2nd
edn, 2015) 456–664.
2 Neil Boister, ‘International Tribunals for Transnational Crimes: Towards a Transnational Criminal
Court?’ (2012) 23 Criminal Law Forum 295.
124 AgAtA FIjAlkowskI

Nonetheless, in November 2017, following a US federal court ruling, Inno-

cente Orlando Montano Morales was extradited to Spain to stand trial for murder.3
Morales is a former Vice Minister of Defence for El Salvador who allegedly gave
the order to execute several Jesuits, including an important intellectual figure,
Rev. Ignacio Ellacuría – an important intellectual and leftist representative in the
country, who brokered the peace process between the government and the Frente
Farabundo Martí para la Liberación Nacional (FMNLF).4 The executions took
place in November 1989. Morales and 19 others have been charged with the mur-
der of six priests, their housekeeper, and her daughter. Five of the six priests were
Spanish citizens, thus leading to the Spanish request. Many of the perpetrators
of human rights atrocities committed during the 12-year civil war that ceased in
1992 remain free in El Salvador, because national amnesty laws protect them. But
even this is changing. In 2016 it was reported that the exhumations taking place at
El Mozote have resulted in reassessment of the current amnesty laws. The impor-
tance of El Mozote is what occurred there, over a three-day period in December
1981. Soldiers from the Salvadoran army shot hundreds of unarmed men, women
and children in the village of El Mozote and surrounding areas. This is the worst
atrocity committed during the 12-year-long conflict between leftist guerrillas and
El Salvador’s right-wing government, in which circa 75,000 Salvadorans died.
No one has been held accountable for the massacre or any crimes committed
during the war. The amnesty law, passed in 1993, protected perpetrators on both
sides of the conflict from prosecution. Significantly, the country’s reconciliation
process has been viewed as archetypal. Both sides disarmed, the army dimin-
ished in size and the security forces became the civilian police. After the civil
war ended in 1992, over a six-month period a UN Truth Commission investigated
‘serious acts of violence’; 85 per cent were made against the army, paramilitary
groups and right-wing death squads5 (truth commissions are discussed in the
chapter ‘Truth and Reconciliation Commissions’). In this Commission’s report
the FMNLF, noted above, was blamed for the 1989 events discussed at the start of
this chapter. Importantly, demands for justice were made in 1990 when relatives
of the El Mozote massacre filed a suit with the Inter-American Court of Human

3 <www.justice.gov/opa/pr/us-extradites-former-salvadoran-military-officer-spain-face-charges-
participation-1989-jesuit>.
4 Jonathan Katz, ‘US Wants Former Salvadoran Ally to Face Justice in 1989 Massacre’, The New
York Times (New York), 13 September 2015 <www.nytimes.com/2015/09/14/world/americas/
us-wants-former-salvadoran-ally-to-face-justice-in-1989-massacre.html>. For background on the
conflict see Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador (Georgetown
University Press, 1993) and Teresa Whitfield, Paying the Price: Ignacio Ellacuría and the Mur-
dered Jesuits of El Salvador (Temple University Press, 1995).
5 ‘Digging for Justice’, The Economist (London), 2 January 2016, 25–26.
 Amnesty 125

Rights. The Inter-American Court of Human Rights ruled that El Salvador’s gov-
ernment investigate the massacre, punish the perpetrators, and compensate the
victims.6 Efforts to challenge the 1993 amnesty law proved successful. The El
Salvadoran Supreme Court declared the law unconstitutional.7 In January 2020, a
retired Salvadoran general acknowledged for the first time that the armed forces
were responsible for the massacre of more than 1,000 people during the country’s
civil war.8
In neighbouring Guatemala, a UN-backed commission to investigate corrup-
tion has resulted in prosecutions for human rights atrocities to be brought against
officials from the former dictatorship, including the former dictator Efraín Ríos
Montt.9 The trial started in January 2016 only to be suspended.10 In March 2017
the Guatemalan Constitutional court ordered a new trial against Ríos Montt.11
Proceedings were piecemeal, and Ríos Montt died on 1 April 2018. His legacy
will be that of a ruthless dictator, whose conviction of genocide in 2013, although
invalidated, stands as a record of his crimes.12
It should be noted that Spain has arguably led the way in seeking justice (by
way of criminal prosecution) in cases where its citizens have been victims of
human rights atrocities. This in itself is ironic, as Spain adopted a policy of for-
getfulness (Pacto de Olvido) concerning Spanish rule under the dictator General

6 El Mozote Massacre v El Salvador, decision from 2 March 2006, Case 10.720, Report No 24/06,
Inter-Am Ct HR, OEA/Ser.L/V/II.124 Doc 5 (2006).
7 ‘Digging for Justice’, n 5, 25–26. ‘El Salvador Rejects Amnesty Law in Historic Ruling’,
Amnesty International, 14 August 2016 <www.amnesty.org/en/latest/news/2016/07/el-salvador-
rejects-amnesty-law-in-historic-ruling/>.
8 Nelson Renteria, ‘Salvadoran General Admits Army Carried Out Infamous 1981 Massacre’,
Reuters, 24 January 2020 <www.reuters.com/article/us-elsalvador-massacre-idUSKBN1ZN
2MJ?taid=5e2b99ceebed6f0001a552e3&utm_campaign=trueAnthem:+Trending+Content&
utm_medium=trueAnthem&utm_source=twitter>.
9 Montt was president of Guatemala from 1982 to 1983. The charges against Montt are genocide
and crimes against humanity. These proceedings are a retrial, after the Guatemalan Constitutional
Court overturned his conviction in 2013. ‘Guatemala Court: Former Dictator Can be Tried but
Not Sentenced’, The Guardian (London), 25 August 2015 <www.theguardian.com/world/2015/
aug/25/guatemala-rios-montt-genocide-trial-not-sentenced>.
10 Ríos Montt’s Trial: The Ultimate Test for Guatemala’s Justice System (8 January 2016) Amnesty
International <www.amnesty.org/en/latest/news/2016/01/rios-montt-s-trial-the-ultimate-test-for-
guatemala-s-justice-system/>.
11 Jo-Marie Burt and Paulo Estrada, ‘The Legacy of Ríos Montt, Guatemala’s Most Notori-
ous War Criminal’, International Justice Monitor, 3 April 2018 <www.ijmonitor.org/2018/04/
the-legacy-of-rios-montt-guatemalas-most-notorious-war-criminal/>.
12 Ibid.
126 AgAtA FIjAlkowskI

Franco (1939–1975).13 Both the Latin American experiences, and the contempo-
rary Spanish response to those military dictatorships’ human rights abuses, form
an important part of the discussion about amnesty.14
This brief introduction draws our attention to several critical factors and con-
cepts, which give rise to questions concerning which types of crimes were the
human rights atrocities; the time period during which they were committed and
whether statutes of limitation apply; who the perpetrators are and who were the
victims; and, finally whether the expectations of victims and democracy, in rela-
tion to achieving peace and meeting the demands of justice have been satisfied. To
begin this exploration, let us start with the definition. It is not possible to provide
a comprehensive overview of amnesty and amnesty laws. Instead, this chapter
will focus on key questions concerning this mechanism and refer to important
examples throughout the discussion.

6.2 Definition
Amnesty originates from the Greek word amnestia, which means ‘forgetfulness’
or ‘oblivion’.15 The use of amnesty throughout history was part of an approach
that could now be described as a utilitarian position vis-à-vis the past.16 A utilitar-
ian position subscribes to the view that decisions are made with the common good
in mind. In this vein, amnesty is a promise to desist from committing crimes from
murder to other unspeakable atrocities, and whereby the victims and wider society
are asked to forget the past actions of such individuals or organisations and move
on for the common good. The trade is made in the name of achieving stability.
However, for critics, it comes at the cost of losing truth and justice.17 Indeed, for
these commentators amnesty is politicised, because amnesty is used to silence
the crimes and protect the perpetrators under the guise of policies that claim to
address the past injustices of the predecessor regime.18 The measure has come
to epitomise an obstacle to justice. In fact, amnesties that recommend blanket,

13 Paloma Aguilar, ‘Justice, Politics and Memory in the Spanish Transition’ in Alexandra Barahona
de Brito, Carmen González Enríquez, and Paloma Aguilar (eds), The Politics of Memory and
Democratization (Oxford University Press, 2001) 92–118.
14 Facing Franco’s Crimes: The Silence of Others (BBC4 Storyville, 2019).
15 Norman Weisman, ‘A History and Discussion of Amnesty’ (1972) 4 Columbia Human Rights Law
Review 520. See also Louise Mallinder, Amnesty, Human Rights and Political Transitions (Hart
Publishing, 2008) 3–7.
16 See Jeremy Bentham, An Introduction to the Principles of Morals and Education (Clarendon
Press, 1996 [1789]).
17 Michael Scharf, ‘The Letter of the Law: The Scope of International Legal Obligation to Prosecute
Human Rights Crimes’ (1996) 59 Law and Contemporary Problems 41.
18 Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 319–353.
 Amnesty 127

unconditional immunity no longer seem to be the favoured approach in a time

where a new norm of accountability for human rights violations is replacing the
traditional practice of amnesty. Significantly, the growth in transitional justice
scholarship coincides with the calls for accountability and proposals, in some
contexts, for limited, conditional amnesties as a means towards peace and recon-
ciliation. To gain a further, critical understanding of this controversial measure, it
is helpful to consider selected cases of amnesty along its respective timeline and
to map its key points in order to reveal more about local and universal approaches
and contexts regarding justice and peace.

6.3 Brief historical overview

Early forms of amnesty date back to ancient Greece. Amnesty was, and continues
to be, a practice that has been introduced and supported by the executive, and it
constituted a variety of measures, such as pardons, restoring voting rights, sup-
pressing dissent or exacting revenge for past actions of disloyalty. These measures
have been noted in state practice of the United Kingdom (for political prisoners),
France (exemptions as a way of punishing disloyalty) and the US (restoring vot-
ing rights). These historical examples are referred to as pure amnesties, where
there is a true pardon and no change to the relevant law. As will be discussed
below, the control over forgetting and forgiveness is an important component of
sovereignty.19 Several scholars note that ‘[t]he historical granting of amnesties as
a means to secure post-conflict peace and stability and its relationship to “state-
ness” is relevant’.20 In fact, the issue of sovereignty is one that stands in the way
of reconciling the goals of justice and peace. This occurs in cases where the state
fails to bring the matter of amnesty to the wider public discourse and ignores the
needs and wishes of the victims.
Developments in Latin America are unavoidable when studying or examin-
ing amnesty. This relates to the human rights atrocities that occurred in the region.
In the 1970s, amnesties, as a sort of makeshift practice, were granted to those
involved in the planning, murder and/or torture that characterised the region’s mil-
itary dictatorships.21 Argentina, Chile, El Salvador, Guatemala and Uruguay were

19 Paul Ricouer, Memory, History, Forgetting (The University of Chicago Press, 2003).
20 Kieran McEvoy and Louise Mallinder, ‘Amnesties, Punishment and the Calibration of Mercy in
Transition’ (2012) 39 Journal of Law and Society 410, published as Research Paper No 12–07
(Transitional Justice Institute, 8 September 2012) 4.
21 Naomi Roht-Arriaza (ed), Impunity and Human Rights in International Law and Practice (Oxford
University Press, 1995). See also Jorge Correa Sutil, ‘Dealing with Past Human Rights Violations:
The Chilean Case after Dictatorship’ (1992) 67 Notre Dame Law Review 1455.
128 AgAtA FIjAlkowskI

joined by other states in the 1990s, namely Cambodia, Haiti and South Africa, in
that each had ‘granted amnesty to members of the former regime that commanded
death squads that tortured and killed thousands of civilians within their respective
countries’.22 The United Nations supported the negotiations for granting amnesty
as a means of restoring peace and a democratic government in four cases: Cam-
bodia, El Salvador, Haiti and South Africa. Thus we have national, regional and
universal approaches and involvement in transitional governments. Their involve-
ment might explain the location of amnesty in national policies.

6.4 Purpose
The end of World War II and the Nuremberg and Tokyo trials mark the alteration
in state practice as concerns holding individuals accountable for war crimes and
crimes against humanity. Suddenly a category of crimes was created that was
no longer protected by a statute of limitations (or a law that prohibits criminal
prosecution for crimes that were committed a specified number of years ago).
Since World War II a range of treaties have been ratified that have had a notable
impact on the development of the current approach towards amnesty; specific
treaties will be discussed shortly. It is worth mentioning that at this point an inter-
national duty to hold perpetrators accountable is identified. Later, with the arrest
of the Chilean dictator Augusto Pinochet in the late 1990s, the notion of universal
jurisdiction is on the table; this notion claims that states or international organisa-
tions, such as international courts, can claim criminal jurisdiction over an accused
person regardless of where the alleged crime was committed, or regardless of the
accused’s nationality, country of residence, or any other relation with the pros-
ecuting body. Spain, and later Belgium, came to the fore with the application of
universal jurisdiction. It is the actions of the Spanish judge Baltazar Garzón that
give rise to pertinent questions about judicial culture and what underpins moves
to challenge sovereign positions on the issue of amnesty.23 Equally noteworthy
are courts and their interpretation of relevant statutes that provides for successful
requests for extradition – such as the US development noted at the start of the
chapter. Pinochet certainly marked a watershed moment. The case gave rise to
discussions about the aims of international criminal justice, and heated debates

22 Scharf, n 17, 1.
23 David Sugarman, ‘Courts, Human Rights and Transitional Justice’ (2009) 36 Journal of Law and
Society 272 and by the same author, ‘The Pinochet Case: International Criminal Justice in the
Gothic Style?’ (2001) 64 Modern Law Review 933. See also Lisa Hilibink, Judges Beyond Politics
in Democracy and Dictatorship: Lessons from Chile (Cambridge University Press, 2007).
 Amnesty 129

about what ‘seeking justice’ entails. Ironically, the location of victims in this con-
stellation was, and continues to be, opaque.

6.5 Points of contention and controversy

For many, amnesty laws are equivalent to impunity (exemption from punishment).24
This view asserts that such laws present an obstacle to the right of redress, the rule
of law and the deterrence of human rights violations.25 Since the late 1990s, the
UN has taken the position that amnesties preventing the prosecution of persons
charged with war crimes, genocide, crimes against humanity and other gross vio-
lations of human rights are inconsistent with state obligations under numerous
ratified treaties and UN policy. It is a position that might also be incompatible
with emerging principles of customary international law. Amnesty would come to
haunt, as a legitimate feature of transnational polices, the UN and its international
positions noted above after the establishment of the International Criminal Tribu-
nal for former Yugoslavia and the International Criminal Tribunal for Rwanda, as
well as the International Criminal Court (ICC).
On that note, both France and the US introduced provisions that enable
the state to recuse the ICC’s jurisdiction over war crimes concerning their own
nationals.26 Colombia attempted to use similar means when it sought to protect
its paramilitary squads from future prosecution.27 Under Article 124 of the Rome
Statute, it was possible to suspend the jurisdiction of the ICC for a period of seven
years. Such approaches thus created a separate legal regime for war crimes by
locating them, for example, under a separate title in the criminal code (such as
the case of France). The result was that they are covered by the statute of limita-
tions. For example, the French definition of war crimes also left open lacunae; it
rejected inserting Article 8 of the Rome Statute,28 which concerns war crimes, and
also rejected the definitions of grave breaches of the Geneva Conventions of 1949
and rejected the First Protocol, by which the state is bound. France withdrew its
declaration in 2008 and Colombia in 2009. In 2015 the Assembly of States Parties

24 Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 319–353.

25 William Bourdon, ‘Prosecuting the Perpetrators of International Crimes’ (2005) 3 Journal of Inter-
national Criminal Justice 434.
26 Ibid. See also Duffy, n 1, 456–664.
27 Renata Segura and Sabrina Stein, The Colombian Peace Process with the FARC: A Mapping of
Vulnerabilities (Social Science Research Council, 2018).
28 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS
90 (entered into force 1 July 2002) <http://legal.un.org/icc/statute/romefra.htm>.
130 AgAtA FIjAlkowskI

or (ASP, comprising representatives of states that have ratified and acceded to the
Rome Statute) moved to delete Article 124.29
Granting amnesty to those suspected of war crimes does not answer calls for
justice that is achieved through holding the perpetrators of these crimes account-
able. Proponents of amnesties will argue that is based on achieving peace, espe-
cially in post-conflict reconstruction. However, any sort of progress requires
addressing and resolving the past. Amnesties seem to merely postpone the mani-
festation of discontent. They should have only limited application and meet strin-
gent conditions before being used.

6.6 Amnesty laws

Many countries have passed amnesty laws, referring to specific events in the
country’s history, for war crimes or crimes against humanity, or for wider
categories of crimes that include these two crimes.30 The arguments for and
against a decision to grant amnesty cannot avoid a consideration of whether
there is a duty to prosecute. In other words, there is a difference between a
policy decision (which many assert is a poor one) and a decision that violates
international law.31 Recent studies have considered whether the decision to
prosecute a significant number of perpetrators has afforded victims some kind
of justice.32
There are several international legal instruments to note when considering
the assertion that there is a duty to prosecute. Because we are dealing with treaties,
Article 27 of the Vienna Convention on the Law of Treaties needs to be noted,
whereby ‘[a] party may not invoke the provisions of its internal law as justifica-
tion for failure to perform a treaty’.
The 1949 Geneva Conventions comprise four instruments that were negoti-
ated in 1949 to codify the international rules concerning the treatment of prisoners

29 Assembly of States Parties to the Rome Statute of the International Criminal Court, Res ICC-
ASP/14/Res.2, 14th sess, 11th plen mtg (adopted 26 November 2015).
30 Antonio Cassese et al, Cassese’s International Criminal Law (Oxford University Press, 3rd edn,
2013) 309. The most comprehensive study to date notes that between 1979 and 2010 an average
of 12.25 amnesty laws were enacted each year around the world. See McEvoy and Mallinder,
n 20, 4.
31 Scharf, n 17, 41. Diane Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights
Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537.
32 Valuable research has been undertaken that includes empirical work and participation of local
audiences, such as Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and
Serbia (Oxford University Press, 2018).
 Amnesty 131

of war and civilians in occupied territory.33 The Geneva Conventions enjoy being
one of the most ratified in the world. Each of the conventions includes a specific
list of grave breaches for which there is an individual criminal liability and for
which states have a resultant duty to prosecute. These grave breaches are war
crimes and include wilful killing, torture or inhuman treatment, including bio-
logical experiments; wilfully causing great suffering or serious injury to body
or health; extensive destruction of property not justified by military necessity;
wilfully depriving a civilian of the rights of a fair and regular trial; and unlawful
confinement of a civilian. State parties to the Geneva Conventions have an obliga-
tion to search for, prosecute, and punish perpetrators of grave breaches – unless
they decide to hand over the individuals for trial by another state party. It should
be noted that the duty is limited to the context of international armed conflict. In
the commentary on the conventions the obligation to prosecute is discussed as
absolute.34
The Convention on the Prevention and Punishment of the Crime of Geno-
cide, which entered into force on 12 January 1952, has also been widely ratified.
The convention provides an absolute obligation to prosecute individuals respon-
sible for genocide (as defined in the convention).35 The convention applies only to
those who have the specific intent to destroy a substantial portion of the popula-
tion of a target group. Also, the victims must constitute one of the groups included

33 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (First Geneva Convention), adopted 12 August 1949, 75 UNTS 31 (entered
into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of the
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention),
adopted 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention
Relative to the Treatment of Prisoners of War (Third Geneva Convention), adopted 12 August
1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention Relative to the
Protection of Civilian Persons in Time of War (Fourth Geneva Convention), adopted 12 August
1949, 75 UNTS 287 (entered into force 21 October 1950); Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol I), adopted 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978);
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Victims of Non-International Armed Conflicts (Protocol II), adopted 8 June 1977, 1125 UNTS
609 (entered into force 7 December 1978); Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III),
adopted 8 December 2005 (entered into force 14 January 2007). For full text and commentaries
see the Treaties and Customary Law, International Committee of the Red Cross <www.icrc.org/
en/war-and-law/treaties-customary-law>.
34 Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press,
1989) 215.
35 For the full text see the United Nations Human Rights Office of the High Commissioner at <www.
ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx>.
132 AgAtA FIjAlkowskI

in the document, namely national, ethnic, racial or religious. Political groups were
intentionally excluded from the convention’s definition.36
The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment entered into force on 26 June 1987.37 Many of the
examples cited in this chapter would be captured by this definition. The conven-
tion requires that each state party criminalise all acts of torture in its domestic
law, established competence over offences in such cases where the perpetrator
is a national of the state, and, if such a state does not extradite the perpetrator,
the convention requires it to submit the case to its competent authorities for the
purpose of prosecution.
The Committee against Torture, in a case concerning Argentinian amnesty
laws, decided in 1990 that communications submitted by Argentinian citizens on
behalf of their relatives who had been tortured by the state’s military authorities
were inadmissible as Argentina had ratified the convention after the amnesty laws
had been enacted.38 The Committee, in its dictum, stated that ‘[e]ven before the
entry into force of the Convention against Torture, there existed a general rule
of international law which should oblige all states to take effective measures to
prevent torture and to punish acts of torture’.39 The committee intentionally used
‘should’ in an effort to show that its claim was aspirational and not a statement of
binding law.40
Although human rights conventions do not specifically mention the duty
to prosecute, the position taken by some commentators41 is that to ensure rights
implies a duty to prosecute the perpetrators. For example, to ensure the right to
life obliges the state to conduct an effective investigation into a killing to deter-
mine if it was lawful or unlawful.
The Human Rights Committee’s pronouncements on the issue have not been
conclusive. The committee monitors the implementation of the 1966 Interna-
tional Covenant on Civil and Political Rights (ICCPR), in force since 1976. The
committee has urged states to prosecute (Surinam), told states to bring violators

36 Further discussion of this point is outside the scope of this chapter.

37 For the full text see the United Nations Human Rights Office of the High Commissioner at <www.
ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx>.
38 Scharf, n 17, 47.
39 Decision on Admissibility from 23 November 1989, Regarding Communications Nos 1/1988,
2/1988 and 3/1988 (OR, MM and MS v Argentina), Report of the Committee Against Torture, UN
GAOR, 45th sess, Supp No 44, Annex VI, UN Doc A/45/44 (1990) 111. Emphasis added.
40 Scharf, n 17, 48.
41 Orentlicher, n 32. See also M Cherif Bassiouni, ‘Searching for Peace and Achieving Justice: The
Need for Accountability’ (1996) 59 Law and Contemporary Problems 9.
 Amnesty 133

to justice (Uruguay) and stated that amnesties are generally incompatible with
ensuring that the rights set in the ICCPR are meaningful.
Even the case of Velásquez Rodríguez42 cannot be read as ensuring a duty
to prosecute. This case concerned the unresolved disappearance of Manfredo
Velásquez in September 1981. The Inter-American Court of Human Rights was
presented with testimonies indicating that he had been tortured and killed by the
Honduran security services. The court relied on Article 1(1) of the 1969 American
Convention on Human Rights to ensure the rights enumerated in it.43 It then went
on to find the Honduran government to be in breach of its duties under the conven-
tion. In its aftermath of Velásquez, the Inter-American Commission took another
look at amnesty laws in the case of El Salvador, Uruguay and Argentina. In all
three instances, the commission held that the amnesty laws were not compatible
with the American Convention’s right to a remedy (Article 25) and right to judicial
process (Article 8) read in conjunction with Article 1’s obligation to ensure rights.
The Inter-American Commission went further in 1996 by holding that Chile’s
approach to self-amnesty failed on two grounds: (1) Chile did not succeed in con-
ducting an investigation that specifically identified all individual perpetrators and,
as a result, made it almost impossible to establish any such responsibility before
the civil courts; (2) Chile failed to take punitive action against the perpetrators.44
Several commentators have noted that there is a customary international law
duty to prosecute perpetrators of crimes against humanity and that granting amnesty
to such individuals violates international law.45 As noted above, the Nuremberg
proceedings marked an important moment for international crimes. The Charter of
the Nuremberg War Crimes Tribunal was the first international instrument in which
crimes against humanity were codified. The linkage to war and whether it would be
required by international law or merely by its charter has been a subject of dispute,
although the jurisprudence of the International Criminal Tribunal for the former
Yugoslavia indicated that the nexus requirement need not be with armed conflict.46

42 Decision from 29 July 1988, Inter-Am Ct HR (ser C) No 4 (1988).

43 The American Convention has been in force since 1978. The jurisprudence of the Inter-
American Court has influenced the case law of the European Court of Human Rights in its
interpretation of the 1950 European Convention on Human Rights in similar areas, such as
disappearances. Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 164–165,
272–273, 424–428.
44 Garay Hermosilla et al v Chile, decision from 15 October 1996, Case 10.843, Report No 36/96,
Inter-Am Ct HR OEA/SerI/V/II.95 Doc 7, Rev, 156 (1997).
45 Scharf, n 17, 41–61.
46 Ibid 53. See Prosecutor v Dusko Tadic /a/k/a ‘Dule’, decision from 2 October 1995, Decision on
the Defence Motion for Interlocutory Appeal on Jurisdiction, UN Tribunal for the Protection of
Persons Responsible for Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991, Case No IT-94-1, 72.
134 AgAtA FIjAlkowskI

Despite the promulgation of the Declaration on Territorial Asylum there is

no state practice that is propounded; rather, there is an advisory role on the part
of the General Assembly.47 The declaration is often cited by some commentators
as being the earliest international recognition of a legal obligation to prosecute
perpetrators of crimes against humanity.48 Equally, no sooner had the term ‘crimes
against humanity’ been coined with respect to the massacres of Armenians during
World War I than the international community agreed to amnesty for the Turk-
ish perpetrators.49 Likewise, in 1962, France and Algeria decided against trying
persons who committed atrocities during the Algerian war.50 In 1971, following
the Bangladeshi war, India and Bangladesh agreed not to prosecute Pakistanis
charged with genocide and crimes against humanity in exchange for political rec-
ognition of Bangladesh by Pakistan.51 Finally, the Security Council can, through a
Chapter VII resolution, create binding obligations on states to bring those respon-
sible for international crimes to justice.52

6.7 examples of amnesty laws across

the world
In order to understand amnesty laws, we may look at the Chilean experience and
the Miguel Ángel Sandoval Rodríguez case.53 The case highlights three factors
that are key to the controversy of amnesty laws: statute of limitation, murder and
impunity. This case, which is critiqued more for what it did not say than for what
it did, is an excellent starting point to a discussion that brings us to present-day
developments. The Sandoval case concerned a forced disappearance. Sandoval
was a member of the Leftist Revolutionary Movement (Movimiento de Izqui-
erda Revolucionaria). In 1975, the Chilean Directorate of National Intelligence
abducted Sandoval and detained him at a secret detention camp (Villa Grimaldi).
There he was tortured and later disappeared.
The decision of the Chilean Supreme Court in 2005 came after a series of
forced-disappearance cases that the court reopened after dismissal by the military

47 Scharf, n 17, 57.

48 UN General Assembly, Declaration on Territorial Asylum, GA Res 2312 (XXII), 22 UN GAOR
Supp (No 16) 81, UN Doc A/6716 (1967).
49 Scharf, n 17, 52. Also M Cherif Bassiouni, Crimes Against Humanity in International Criminal
Law (Cambridge University Press, 2014).
50 Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 50–53.
51 Ibid 130.
52 Scharf, n 17, 59.
53 Juan Contreras Sepulvada y Otros (Crimen) Casación Fondo y Forma, Corte Suprema, 517/2004,
Resolución 22267, decision 17 November 2004 (so-called Sandoval case).
 Amnesty 135

courts.54 In this unanimous decision the court held that the crime of aggravated
abduction equates to a crime of forced disappearance as set out in international
human rights law and international criminal law. The court reaffirmed the
supremacy of international law in the domestic legal order. What is noteworthy
about this case is that the court maintained that amnesty is no bar to investiga-
tion, nor is it a bar to the application of criminal sanctions. The 1978 Chilean
amnesty law is referred to as a self-imposed or self-proclaimed amnesty law or
blanket amnesty law that is wide in scope and incorporated into the constitution.55
In addition to granting amnesty to ‘all persons who committed, as perpetrators,
accomplices or conspirators, criminal offences […] between 11 September 1973
to 10 March 1978’ defendants in the cases claimed protection under the stat-
ute of limitations as sufficient time had passed to bar any proceedings against
them. The Court rejected both positions on the grounds that the crime of aggra-
vated abduction was continuous in nature and therefore not completed within the
period set out in the amnesty law. The supremacy of international law overrode
any incompatible domestic law.
The following is an overview of developments in selected states that shape
the position with respect to amnesty and amnesty laws.

Afghanistan
Afghanistan has a history of amnesties beginning in 1979 with the amnesty issued
by the Soviet-backed revolutionary forces, which asserted that the amnesty was a
‘humanitarian act’. The move, like the assertion, was propaganda. In more recent
years, the plan adopted by the Afghan government for peace – the 2005 Action
Plan for Peace, Justice, and Reconciliation – led to the drafting of a bill provid-
ing for blanket amnesty for human rights violations and war crimes in Afghani-
stan for the period 1978 to 2001. The idea underpinning the move was to offer
immunity to members of the Taliban (save for crimes against humanity) and to
weaken the organisation. The attempt was not successful. Although the bill was
not formally enacted as law, it continues to be a contentious issue, and for many
it is highly politicised and an abuse of power. The 2007 National Reconciliation
Charter granted amnesty to warlords, many of whom entered politics and were in
the government.56 Human Rights Watch has stated that the 2007 law that provides

54 Fannie Lafontaine, ‘No Amnesty or Statute of Limitation for Enforced Disappearances: The San-
doval Case before the Supreme Court of Chile’ (2005) 3 Journal of International Criminal Justice
469.
55 Ibid. See also Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 230.
56 Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 133.
136 AgAtA FIjAlkowskI

amnesty to perpetrators of war crimes and crimes against humanity should be

repealed.57 In May 2017, the Convention against Torture Committee issued a
report that was highly critical of the country’s record on preventing torture, and
called for the amnesty law to be repealed.58

Algeria
Algeria is an important case study. After achieving independence in 1962, the
country’s post-colonial experience is one that cannot ignore the effect and leg-
acies of French rule and France’s approaches to its own past in relation to its
actions against those fighting for independence. In 1989 Algeria adopted a new
constitution that set up a collision between Islamic-backed parties and military
forces when the government stepped in, under military pressure, to cancel a sec-
ond round of elections that would have resulted in the Islamic Salvation Front
(FIS) gaining absolute majority. The conflict that resulted in the 1990s is referred
to as the ‘Dirty War’ (la sale guerre), during which time an estimated 100,000–
150,000 people were killed.59 It was not until the 1999 Civil Harmony Law that
the security situation stabilised. The 2005 Charter for Peace and Reconciliation
aimed towards negotiations between the disparate groups. The charter also pro-
vided for amnesty. The key provision, Ordinance No 06–61, was enacted into
law in 2006. It amnestied the Islamic fighters who were engaged in the fighting,
but excluded those involved in massacres, rapes and using explosives in public
areas. The applicants are required to make individual applications and surrender
arms.60 It is worth noting that an ad hoc committee on disappearances was created
in 2003, but the 2005 mandate did not provide for compensation to the victims.

Argentina
In 1995 the chief of the Argentine army apologised to the nation for the military’s
crimes during the dirty war and in 2004 the then president also asked for forgive-
ness ‘for the shame of a democracy which stayed silent on those atrocities during
the past twenty years’.61 These measures of atonement have been accompanied

57 Afghanistan: Repeal Amnesty Law (10 March 2010) Human Rights Watch <www.hrw.org/
news/2010/03/10/afghanistan-repeal-amnesty-law>.
58 ‘Thematic Dossier XVI: Afghanistan’s War Crimes Amnesty and the International Criminal
Court’, Afghanistan Analyst Network, 7 October 2017 <www.afghanistan-analysts.org/publication/
aan-thematic-dossier/thematic-dossier-xvi-afghanistans-war-crimes-amnesty-and-the-inter
national-criminal-court/>.
59 Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 69–71.
60 Ibid 181.
61 Scharf, n 17, 47–48.
 Amnesty 137

by amnesties. For example, following the report by the National Commission

for Forced Disappearances (CONADEP) the country saw a series of trials of the
high-ranking military leaders in the mid-1980s. In 1986, however, under the Raúl
Alfonsín regime (1983–1989), the government passed two amnesty laws in order
to prevent further trials. Law No 23, 492, or the ‘full stop’ law, set a 60-day
deadline for the initiation of new prosecution. When that law did not prevent the
prosecution of large numbers of defendants, Law No 23, 521, or the ‘due obedi-
ence’ law, was passed, which granted automatic immunity from prosecution to
all members of the military, save for the high commanders. The due obedience
law was deemed constitutional by the Argentine Supreme Court in 1987. In 2001,
however, a disappearance case was reopened against two police agents who were
accused of the torture and disappearance of a Chilean-Argentine couple. This rul-
ing resulted in more prosecutions.62 Under Carlos Menem (1989–1999), the lead-
ers of the military dictatorship were pardoned. Despite the calls for justice led by
the Mothers of the Plaza del Mayo, the leaders remain free. The 2005 Argentine
Supreme Court ruling overturning the amnesty laws did not extend to this group.63
However, in 2007, after a series of challenges, the Supreme Court, in a vote of 4
to 2, found that the pardons granted by President Menem were unconstitutional.64
Under Néstor Kirchner and Cristina Fernández, a presidential decree from 2007
authorised former military officials and those serving in the post-government
military, police and government officials to reveal state secrets if called to testify
at human rights trials. Presidential Decree No 606 created a Truth and Justice
programme responsible to the Chief Cabinet of Ministers.65 But the slow rate of
progress of prosecutions resulted in criticisms of the judiciary on the part of the
human rights community.

sierra leone
Sierra Leonean history and culture is key to understanding the Civil War (1991–
2002) and subsequent efforts to achieve peace, justice and reconciliation. Achiev-
ing a sense of justice following a conflict characterised by extreme brutality and

62 The Barrios Altos case is important. In 2001 the Inter-American Court of Human Rights declared
two Peruvian amnesty laws to be incompatible with the American Convention on Human Rights.
Barrios Alto v Peru, decision from 30 November 2001, Inter-Am Ct HR (ser C) No 87 (2001).
63 Kathryn Sikkink, Justice Cascade: How Human Rights Prosecutions are Changing World Politics
(Norton, 2011) 79.
64 This meant that the accused in this case, General Santiago Omar Riveros, could be tried for kid-
nappings, torture and disappearances.
65 Louise Mallinder, ‘The Ongoing Quest for Truth and Justice: Enacting and Annulling Argentina’s
Amnesty Laws’ (Working Paper No 5, Beyond Legalism: Amnesties, Transition and Conflict
Transformation, May 2009).
138 AgAtA FIjAlkowskI

the widespread use of child soldiers needs to be considered in this context.66

Until independence, the country’s diverse population largely coexisted peacefully
across ethnic, cultural and religious differences.67 All this changed after 1961,
when intergroup relationships came to be influenced by different actors fighting
for political power.68 The Peace Accord came to an end with the 1997 military
coup. Negotiation efforts resulted in the conclusion of the 1999 Lomé Peace
Agreement. However, this was supplanted by more fighting before hostilities
finally ceased in 2002. The presence of a criminal tribunal and a Truth and Rec-
onciliation Commission (TRC; discussed in Chapter 5 in this volume, Agata
Fijalkowski, ‘Truth and reconciliation commissions’) is important. In addition
to various restorative and reintegrative measures, the Lomé Peace Agreement
included a highly controversial blanket amnesty that nevertheless failed to stop
the Revolutionary United Front’s continued military activity, including egregious
human rights atrocities against civilians. Laura Stovel observes that the incorpo-
ration of the Sierra Leone TRC in the Lomé Peace Agreement, more than being an
expression of strong political endorsement of this option, was a way of ‘making
the amnesty and power sharing deal palatable to the people of Sierra Leone’.69
The amnesty was not accepted by the UN to include crimes against humanity or
acts of genocide for the purposes of the organisation.70 Whereas the Truth and
Reconciliation Commission was included in the Lomé agreement, the Special
Court for Sierra Leone was first established in 2002 by agreement between the
Sierra Leone government and the UN. Unlike the international criminal tribunals
of Rwanda and the former Yugoslavia, the Special Court for Sierra Leone was
a hybrid tribunal acting to connect a national and international court. Instead of
being imposed by the UN, the Special Court for Sierra Leone was established on
the initiative of, and in cooperation with, the Sierra Leonean government.71

66 Laura Stovel, Long Road Home: Building Reconciliation in Sierra Leone (Intersentia, 2010) and
Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 336–337.
67 Stovel, n 66.
68 Ibid.
69 Ibid.
70 Ibid. The Democratic Republic of Congo has also been identified as a vital case study in transi-
tional criminal justice. In 2005 the country adopted an amnesty law that extends to combatants
engaged in the conflict in the eastern provinces of the North and South Kivu. The law, however,
excludes war crimes, crimes against humanity and genocide. See Patrícia Pinto Soares, ‘Positive
Complementarity: Fine-Tuning the Transitional Justice Discourse? The Cases of the Democratic
Republic of Congo, Uganda and Kenya’ in Agata Fijalkowski and Raluca Grosescu (eds), Tran-
sitional Criminal Justice in Post-Dictatorial and Post-Conflict Societies (Intersentia, 2015) 187
and Agata Fijalkowski and Valderhaug, Sigrun, ‘Legal Decisions, Affective Justice, and “Moving
On”?’ (2017) 7 (2) Oñati Socio-Legal Series 337.
71 Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 336–337.
 Amnesty 139

south Africa
In 1990 negotiations began between the outgoing white minority government
and the incoming opposition government led by the African National Congress
(ANC). The period was characterised by efforts to ensure a peaceful transition,
which included the release of ANC political prisoners and provisions for amnesty.
The Promotion of National Unity and Reconciliation Act came into effect in 1995.
Amnesty would become a vital part of the process in exchange for truth. None
of the parties had monopoly over power and the compromise was seen as neces-
sary. The exchange was viewed as a more positive step than prosecutions. The
emphasis was on a more inclusive and restorative approach to reconciliation72
(the Truth and Reconciliation Commission is discussed in a separate chapter). The
process was one in which the state took great strides in engaging wider society.
Importantly, granting amnesty was seen as being more reflective of indigenous
cultural traditions. For example, ubuntu calls for more tolerance rather than retri-
bution. One of the leading figures in the process and an advocate of its philosophy
was Archbishop Desmond Tutu.73 The bargain of amnesty for truth requires that
eligible offenders who do not apply for amnesty or who fail to comply with its
conditions will face prosecution. In reality, since the TRC’s closure, few prosecu-
tions have been pursued.

spain
Another relevant case study, Spain, was in a civil war between the Nationalists
and the Republicans from 1936 to 1939. The Nationalists won, and under General
Francisco Franco, they established a right-wing dictatorship that lasted until 1975.
The regime was characterised by the repression, disappearances and executions of
a large number of political prisoners. Already in the early 1970s, in anticipation
of Franco’s death, there were calls for absolute amnesty. In 1975 the first amnesty
was introduced to mark King Juan Carlos’s accession to the throne. The limita-
tions of the amnesty resulted in instability and the amnesty law was revisited and
extended in 1977 to all crimes committed by both government supporters and

72 John Dugard, ‘Retrospective Justice: International Law and the South African Model’ in A James
Adams (ed), Transitional Justice and the Rule of Law in New Democracies (University of Notre
Dame Press, 1997) 269–290; John Dugard, ‘Is the Truth and Reconciliation Process Compatible
with International Law? An Unanswered Question’ (1997) 13 South African Journal of Human
Rights 258; John Dugard, ‘Reconciliation and Justice: The South African Experience’ (1998) 8
Transnational Law and Contemporary Problems 277. Mallinder, Amnesty, Human Rights and
Political Transitions, n 15, 167–170.
73 Ubuntu is about what binds human beings. It is a belief in a shared, universal connection between
people. Desmond Tutu, No Future without Forgiveness (Rider, 1999).
140 AgAtA FIjAlkowskI

opposition. The legacy remained largely intact until mid-2000, when mass graves
of Republican supporters were excavated, which has led to the promulgation of
laws prohibiting the display of symbols and signs of the dictatorship.74 In 2013, the
UN High Commissioner for Human Rights has indicated that the 1977 Amnesty
Law be appealed on the grounds that it violates international human rights law.75
In 2017 the Amnesty Law turned 40. The UN Special Rapporteur contends that
the law is in violation of international treaties signed by the country – one of the
effects being the difficulty in investigating crimes.76

6.8 Current positions

Socio-legal scholars have carried out important critical work on amnesties. The
prominent position taken by these commentators is that there is no universal duty
to prosecute under international law. Scholars also argue that the deterrent effect
of prosecution is ‘oversold’ and that the rationale for punishment in international
justice is ‘poorly theorised’.77 The assertions in this area frame amnesty in mercy.
By doing so, amnesties can become an important tool in peace-making. As seen
above, the Latin American experiences were characterised by tensions between
principle and pragmatism, or between the demands of justice and the demands
of a peaceful transition. Studies that have compared the Argentine, Chilean and
Spanish experiences point to the role of the judiciary in overcoming amnesty laws
and paving the way towards accountability through prosecutions; of these three,
Argentina is the most progressive.78 One could argue that the emphasis was placed
on conducting retributive trials (and also a range of non-punitive measures). The
key element of these discussions is sovereignty – which refers to Paul Ricouer and
his notion of commanding forgetting and forgiveness.79
The philosophy underpinning international criminal processes ranges from
retribution to deterrence.80 The failure to punish and absence of deterrence to
future generations has led scholars like Antonio Cassese to argue that impunity

74 Mallinder, Amnesty, Human Rights and Political Transitions, n 15, 51–53.

75 James Badcock, ‘UN Tells Spanish Government It Must Atone for Franco’s Crimes’ Newsweek
(New York), 21 August 2014.
76 ‘Spain: Controversial Franco Era Amnesty Law Turns 40’, Telesur, 18 October 2017 <www.
telesurenglish.net/news/Spain-Controversial-Franco-Era-Amnesty-Law-Turns-40-20171018-
0010.html>.
77 McEvoy and Mallinder, n 20, 1.
78 Paloma Aguilar Fernández, ‘Jueces, Represión, y Justicia Transicional en España, Chile y Argen-
tina’ (2013) 71 Revista Internacional de Sociologia 281.
79 Ricouer, n 19.
80 Daryl Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the Interna-
tional Criminal Court’ (2003) 14 European Journal of International Law 481.
 Amnesty 141

for architects of, for example, the Armenian genocide gave a ‘nod and a wink’ to
Nazi leaders.81 These debates draw on Immanuel Kant’s theories.82 Kant asserted
that retribution dictates that criminals should be punished because they deserve
what they have done. But international law has not closed the door on amnes-
ties, despite the shift in the discourse. Instead both international and domestic
law accept a role for prosecution and amnesties in transitional justice settings.
Expressive functions of punishment might involve societal disapproval of crim-
inal behaviour.83 Punishment carries a message of public disapproval. But any
message that is expressed is likely to be a message of many voices and potentially
carry multiple and conflicting meanings. The risk is that the offender will not
receive the intended message of disapproval.
Transitional justice scholars argue that truth recovery is important for pre-
venting a repetition of crimes and contributing to healing of victims and society.
In this way, the importance of truth is a corrective to the amnesia effect con-
nected to amnesties. For these scholars, amnesties have an integral role to play in
transitional contexts, as they embrace a restorative role in the transition. Braith-
waite famously discusses ‘reintegrative shaming’ as a way of finding mechanisms
where offenders are subject to expressions of community disapproval, which are
then followed by gestures of reintegration into the community of law-abiding
citizens.84 The alternative is ‘disintegrative shaming’, which creates a class of
outcasts. For commentators like Kieran McEvoy, a

criminologically informed view of transitional justice is alive to seeing challenges

and to trying (at least) to meet them rather than simply defaulting to top-down
formalism which would simply pass an amnesty act and make no effort to engage
with either victims or communities.85

81 Antonio Cassese, ‘Reflections on International Criminal Justice’ (1998) 61 Modern Law Review 1
and Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atroc-
ities?’ (2001) 95 American Journal of International Law 7.
82 Immanuel Kant, The Cambridge Edition of the Works of Immanuel Kant (Cambridge University
Press, 1996) 472.
83 McEvoy and Mallinder, n 20, 5–9.
84 John Braithwaite, Crime, Shame and Reintegration (Cambridge University Press, 1989) 67:
‘When individuals are shamed so remorselessly and unforgivingly that they become outcasts […]
it becomes more rewarding to associate with others who are perceived in some limited or total was
as also at odds with mainstream standards’. For Braithwaite, reintegrative shaming concerns the
application of clear standards of conduct and punishment, with the focus on punishing the criminal
act rather than the individual.
85 McEvoy and Mallinder, n 20, 17.
142 AgAtA FIjAlkowskI

In this sense, amnesties are about managing transitions, appealing to notions of

justice, accountability and peace.86
Louise Mallinder aptly notes that when approaching these questions, it is
important to privilege pragmatism over an attempt to try and apply ill-suited uni-
versal models that do not speak to the complexities of the individual transitional
state. Countries need to pursue their own approaches to the past and to find their
own means of connecting justice and peace.87 Progress requires a careful con-
sideration of the past. Amnesties should have only limited application and meet
stringent conditions before being used.

6.9 summary
This chapter has critically considered amnesty, its definition, amnesty laws, points
of controversy and the current position. We note that amnesty confronts justice and
peace, but it continues to be haunted by the victim’s place in any policy measure.
There is no treaty prohibiting amnesties, but states have been unwilling
to agree to even the mildest discouragement when presented with an explicit
prohibition in treaty law. As noted, in international humanitarian law, the duty
to prosecute is absolute and mandatory but the scope is limited, therefore many
atrocities cannot be included. With respect to customary law, there is no evi-
dence of state practice or opinio juris to suggest there is a duty of prosecu-
tion that can only be considered permissive. This allows states discretion with
alternative approaches to truth and accountability. In international human rights
law, no treaties state an explicit duty, but there is a duty to investigate. Con-
cerning philosophy of punishment, in the context of transitional justice the
retributive potential of punishing human rights violations is limited. Prosecu-
tion is typically selective and punishments are rarely proportionate; it might be
argued that amnesty that occurs within a properly constituted setting, such as a
truth commission, may be a preferred option. And the effects of deterrence are
highly uncertain. In conclusion, the present perspective dictates that amnes-
ties be viewed from a restorative perspective. Restorative amnesties can play
an important role in transitioning states, facilitating an inclusive dialogue that
rebuilds relationships.

86 For example, the Belfast Guidelines on Amnesty and Accountability, Transitional Justice Insti-
tute <www.ulster.ac.uk/research-and-innovation/research-institutes/transitional-justice-institute>
define a framework to evaluate the legality and legitimacy in accordance with the state’s legal
obligations.
87 McEvoy and Mallinder, n 20, 22–23.
 Amnesty 143

6.10 Discussion and tutorial questions

The brief introduction drew our attention to several critical factors and concepts,
which give rise to the following questions.

1) Why are there no treaties prohibiting amnesties?

2) Does the involvement of international actors in the transitional process affect
the decision to include amnesty as part of the post-reconstruction process?
3) What do the experiences of Latin America indicate with respect to the legiti-
macy of amnesty laws? Consider the key rulings of the Inter-American Court
of Human Rights and the Chilean Supreme Court.
4) Consider the current position of legal scholars who criticise the rationale for
punishment in international criminal justice as being ‘poorly theorised’. How
does this position challenge classical approaches to punishment? How does
this position view amnesties?

suggested reading
Akhavan, Payam, ‘The Rise, and Fall, and Rise of International Criminal Justice’
(2013) 11 Journal of International Criminal Justice 527.
Ambos, Kai, Judith Lange and Marieke Werde (eds), Building a Future on Peace and
Justice: Studies on Transitional Justice (Springer, 2009).
Blair, James T, ‘From the Numbers Who Died to Those Who Survived: Victim Par-
ticipation in the Extraordinary Chambers in the Courts of Cambodia’ (2009) 31
University of Hawaii Law Review 507.
Henham, Ralph, ‘The Philosophical Foundations of International Sentencing’
(2003) 1 Journal of International Criminal Justice 1.
Igreja, Victor, ‘Amnesty Law, Political Struggles for Legitimacy and Violence in
Mozambique’ (2015) 9 International Journal of Transitional Justice 239–258.
Koskenniemi, Martti, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Year-
book of United Nations Law 1.
Lessa, Francesca, Tricia D Olsen, Leigh A Payne, Gabriel Pereira, and Andrew G
Reiter (eds), ‘Overcoming Impunity: Pathways to Accountability in Latin Amer-
ica’ (2014) 8 International Journal of Transitional Justice 75.
Méndez, Juan E, ‘Accountability for Past Abuses’ (1997) 19 Human Rights Quarterly
255.
Orentlicher, Diane, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia
(Oxford University Press, 2018).
Robertson, Geoffrey, Crimes Against Humanity: The Struggle for Global Justice (Pen-
guin, 2012).
Teitel, Ruti, Transitional Justice (Oxford University Press, 2000).
144 AgAtA FIjAlkowskI

Bibliography
Articles/books/reports
Afghanistan: Repeal Amnesty Law (10 March 2010) Human Rights Watch <www.hrw.
org/news/2010/03/10/afghanistan-repeal-amnesty-law>.
Aguilar Fernández, Paloma, ‘Jueces, Represión, y Justicia Transicional en España,
Chile y Argentina’ (2013) 71 Revista Internacional de Sociologia 281.
Aguilar Fernández, Paloma, ‘Justice, Politics and Memory in the Spanish Transi-
tion’ in Alexandra Barahona de Brito, Carmen González Enríquez, and Paloma
Aguilar (eds), The Politics of Memory and Democratization (Oxford University
Press, 2001) 92.
Akhavan, Payam, ‘Beyond Impunity: Can International Criminal Justice Prevent
Future Atrocities?’ (2001) 95 American Journal of International Law 7.
Badcock, James, ‘UN Tells Spanish Government It Must Atone for Franco’s Crimes’,
Newsweek (New York), 21 August 2014.
Bassiouni, M Cherif, Crimes Against Humanity in International Criminal Law (Cam-
bridge University Press, 2014).
Bassiouni, M Cherif, ‘Searching for Peace and Achieving Justice: The Need for
Accountability’ (1996) 59 Law and Contemporary Problems 9.
Bentham, Jeremy, An Introduction to the Principles of Morals and Education (Claren-
don Press, 1996).
Boister, Neil, ‘International Tribunals for Transnational Crimes: Towards a Trans-
national Criminal Court?’ (2012) 23 Criminal Law Forum 295.
Bourdon, William, ‘Prosecuting the Perpetrators of International Crimes’ (2005) 3
Journal of International Criminal Justice 434.
Braithwaite, John, Crime, Shame and Reintegration (Cambridge University Press,
1989).
Brito, Alexandra Barahona de, Carmen González Enríquez, and Paloma Aguilar
Fernández (eds), The Politics of Memory: Transitional Justice in Democratizing
Societies (Oxford University Press, 2001) 92.
Burt, Jo-Marie and Paulo Estrada, ‘The Legacy of Ríos Montt, Guatemala’s
Most Notorious War Criminal’ International Justice Monitor, 3 April 2018
<www.ijmonitor.org/2018/04/the-legacy-of-rios-montt-guatemalas-most-
notorious-war-criminal/>.
Cassese, Antonio, ‘Reflections on International Criminal Justice’ (1998) 61 Modern
Law Review 1.
Cassese, Antonio, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and
Alex Whiting, Cassese’s International Criminal Law (Oxford University Press,
3rd edn, 2013).
‘Digging for Justice’, The Economist (London), 2 January 2016.
Doggett, Martha, Death Foretold: The Jesuit Murders in El Salvador (Georgetown
University Press, 1993).
Duffy, Helen, The ‘War on Terror’ and the Framework of International Law (University
Press, 2nd edn, 2015).
 Amnesty 145

Dugard, John, ‘Is the Truth and Reconciliation Process Compatible with Inter-
national Law? An Unanswered Question’ (1997) 13 South African Journal of
Human Rights 258.
Dugard, John, ‘Reconciliation and Justice: The South African Experience’ (1998) 8
Transnational Law and Contemporary Problems 277.
Dugard, John, ‘Retrospective Justice: International Law and the South African
Model’ in A James Adams (ed), Transitional Justice and the Rule of Law in New
Democracies (University of Notre Dame Press, 1997) 269.
‘El Salvador Rejects Amnesty Law in Historic Ruling’, Amnesty International, 14
August 2016 <www.amnesty.org/en/latest/news/2016/07/el-salvador-rejects-
amnesty-law-in-historic-ruling/>.
Fijalkowski, Agata and Sigrun Valderhaug, ‘Legal Decisions, Affective Justice, and
“Moving On”?’ (2017) 7(2) Oñati Socio-Legal Series 337.
‘Guatemala Court: Former Dictator Can Be Tried but Not Sentenced’ The Guardian
(London), 25 August 2015.
Hilibink, Lisa, Judges Beyond Politics in Democracy and Dictatorship: Lessons from
Chile (Cambridge University Press, 2007).
Kant, Immanuel, The Cambridge Edition of the Works of Immanuel Kant (Cambridge
University Press, 1996).
Katz, Jonathan, ‘US Wants Former Salvadoran Ally to Face Justice in 1989 Mas-
sacre’, The New York Times (New York), 13 September 2015 <www.nytimes.
com/2015/09/14/world/americas/us-wants-former-salvadoran-ally-to-face-
justice-in-1989-massacre.html>.
Lafontaine, Fannie, ‘No Amnesty or Statute of Limitation for Enforced Disappear-
ances: The Sandoval Case before the Supreme Court of Chile’ (2005) 3 Journal
of International Criminal Justice 469.
Mallinder, Louise, Amnesty, Human Rights and Political Transitions (Hart Publishing,
2008).
Mallinder, Louise, ‘The Ongoing Quest for Truth and Justice: Enacting and Annul-
ling Argentina’s Amnesty Laws’ (Working Paper No 5, Beyond Legalism:
Amnesties, Transition and Conflict Transformation, May 2009).
McEvoy, Kieran and Louise Mallinder, ‘Amnesties, Punishment and the Calibration
of Mercy in Transition’ (2012) 39 Journal of Law and Society 410, published as
(Research Paper No 12–07, Transitional Justice Institute, 8 September 2012).
Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law (Clar-
endon Press, 1989).
Orentlicher, Diane, ‘Settling Accounts: The Duty to Prosecute Human Rights Viola-
tions of a Prior Regime’ (1991) 100 Yale Law Journal 2537.
Orentlicher, Diane, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia
(Oxford University Press, 2018).
Renteria, Nelson, ‘Salvadoran General Admits Army Carried Out Infamous 1981
Massacre’, Reuters, 24 January 2020 <www.reuters.com/article/us-elsalvador-
massacre-idUSKBN1ZN2MJ?taid=5e2b99ceebed6f0001a552e3&utm_
campaign=trueAnthem:+Trending+Content&utm_medium=trueAnthem&utm_
source=twitter>.
146 AgAtA FIjAlkowskI

Ricouer, Paul, Memory, History, Forgetting (The University of Chicago Press, 2003).
Ríos Montt’s Trial: The Ultimate Test for Guatemala’s Justice System (8 January
2016), Amnesty International <www.amnesty.org/en/latest/news/2016/01/
rios-montt-s-trial-the-ultimate-test-for-guatemala-s-justice-system/>.
Robinson, Daryl, ‘Serving the Interests of Justice: Amnesties, Truth Commissions
and the International Criminal Court’ (2003) 14 European Journal of Interna-
tional Law 481.
Roht-Arriaza, Naomi (ed), Impunity and Human Rights in International Law and Prac-
tice (Oxford University Press, 1995).
Scharf, Michael, ‘The Letter of the Law: The Scope of International Legal Obli-
gation to Prosecute Human Rights Crimes’ (1996) 59 Law and Contemporary
Problems 41.
Segura, Renata and Sabrina Stein, The Colombian Peace Process with the FARC: A
Mapping of Vulnerabilities (Social Science Research Council, 2018).
Sikkink, Kathryn, Justice Cascade: How Human Rights Prosecutions Are Changing
World Politics (Norton, 2011).
Soares, Patrícia Pinto, ‘Positive Complementarity: Fine-Tuning the Transitional
Justice Discourse? The Cases of the Democratic Republic of Congo, Uganda
and Kenya’ in Agata Fijalkowski and Raluca Grosescu (eds), Transitional Crimi-
nal Justice in Post-Dictatorial and Post-Conflict Societies (Intersentia, 2015) 187.
‘Spain: Controversial Franco Era Amnesty Law Turns 40’, Telesur, 18 October 2017
<www.telesurenglish.net/news/Spain-Controversial-Franco-Era-Amnesty-
Law-Turns-40-20171018-0010.html>.
Stovel, Laura, Long Road Home: Building Reconciliation in Sierra Leone (Intersentia,
2010).
Sugarman, David, ‘Courts, Human Rights and Transitional Justice’ (2009) 36 Jour-
nal of Law and Society 272.
Sugarman, David, ‘The Pinochet Case: International Criminal Justice in the Gothic
Style?’ (2001) 64 Modern Law Review 933.
Sutil, Jorge Correa, ‘Dealing with Past Human Rights Violations: The Chilean Case
after Dictatorship’ (1992) 67 Notre Dame Law Review 1455.
‘Thematic Dossier XVI: Afghanistan’s War Crimes Amnesty and the International
Criminal Court’ Afghanistan Analyst Network, 7 October 2017 <www.afghan-
istan-analysts.org/publication/aan-thematic-dossier/thematic-dossier-xvi-
afghanistans-war-crimes-amnesty-and-the-international-criminal-court/>.
Tutu, Desmond, No Future Without Forgiveness (Rider, 1999).
Weisman, Norman, ‘A History and Discussion of Amnesty’ (1972) 4 Columbia Human
Rights Law Review 520.
Whitfield, Teresa, Paying the Price: Ignacio Ellacuría and the Murdered Jesuits of El
Salvador (Temple University Press, 1995).

Cases
Barrios Alto v Peru, decision from 30 November 2001, Inter-Am Ct HR (ser C) No
87 (2001).
 Amnesty 147

Decision on Admissibility from 23 November 1989, Regarding Communications

Nos 1/1988, 2/1988 and 3/1988 (OR, MM and MS v Argentina), Report of the Com-
mittee Against Torture, UN GAOR, 45th sess, Supp No 44, Annex VI, UN Doc
A/45/44 (1990) 111.
El Mozote Massacre v El Salvador, decision from 2 March 2006, Case 10.720, Report
No 24/06, Inter-Am Ct HR, OEA/SerL/V/II.124 Doc 5 (2006).
Garay Hermosilla et al v Chile, decision from 15 October 1996, Case 10.843, Report
No 36/96, Inter-Am Ct HR, OEA/SerI/V/II.95 Doc 7, Rev, 156 (1997).
Juan Contreras Sepulvada y Otros (Crimen) Casación Fondo y Forma, Corte Suprema,
517/2004, Resolución 22267, decision 17 November 2004.
Prosecutor v Dusko Tadic a/k/a ‘Dule’, decision from 2 October 1995, Decision on
the Defence Motion for Interlocutory Appeal on Jurisdiction, UN Tribunal for
the Protection of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991, Case No IT-94-1.
Velásquez Rodríguez, decision from 29 July 1988, Inter-Am Ct HR (ser C) No 4 (1988).

legislation
UN General Assembly, Declaration on Territorial Asylum, GA Res 2312 (XXII), 22 UN
GAOR Supp (No 16) 81, UN Doc A/6716 (1967).
Rome Statute of the International Criminal Court, Opened for Signature 17 July
1998, 2187 UNTS 90 (entered into force 1 July 2002) <http://legal.un.org/icc/
statute/romefra.htm>.

treaties
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into
force 26 June 1987).
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (First Geneva Convention), adopted 12 August 1949, 75
UNTS 31 (entered into force 21 October 1950).
Geneva Convention for the Amelioration of the Condition of the Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea (Second Geneva Conven-
tion), adopted 12 August 1949, 75 UNTS 85 (entered into force 21 October
1950).
Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9
December 1948, 78 UNTS 277 (entered into force 12 January 1951).
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth
Geneva Convention), adopted 12 August 1949, 75 UNTS 287 (entered into force
21 October 1950).
Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Con-
vention), adopted 12 August 1949, 75 UNTS 135 (entered into force 21 October
1950).
148 AgAtA FIjAlkowskI

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Adoption of an Additional Distinctive Emblem (Protocol III), adopted 8 December
2005 (entered into force 14 January 2007).
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), adopted 8 June
1977, 1125 UNTS 3 (entered into force 7 December 1978).
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted 8
June 1977, 1125 UNTS 609 (entered into force 7 December 1978).

other
Assembly of States Parties to the Rome Statute of the International Criminal Court,
Res ICC-ASP/14/Res.2, 14th sess, 11th plen mtg (adopted 26 November 2015).
Belfast Guidelines on Amnesty and Accountability, Transitional Justice Institute
<www.ulster.ac.uk/research-and-innovation/research-institutes/transitional-
justice-institute>.
Treaties and Customary Law, International Committee of the Red Cross <www.icrc.
org/en/war-and-law/treaties-customary-law>.

Films and documentaries

Buenos Aires Vice Versa (Directed by Alejandro Agresti, Staccato Films, Agresti
Films, 1991).
Facing Franco’s Crimes: The Silence of Others (BBC4 Storyville, 2019)
The Girlfriend (Directed by Jeanine Meerapfel, Alma Film, Jorge Estrada Mora Pro-
ducciones, 1988).
Memories They Told Me (Directed by Lúcia Murat, Elixir Entretenimento, Taiga
Filmes, 2013).
The Mothers of Plaza de Mayo (Directed and produced by Susana Blaustein Muñoz
and Lourdes Portillo, 1985).
Olympic Garage (Directed by Marco Bechis, Amedeo Pagani, Produced by Marco
Bechis, Enrique Piñeyro, Eric Heumann, 1999).
State of Siege (Directed by Costa-Gavras, Reggane Films, Euro International Film,
Unidis, 1972).
Chapter 7

Lustration and vetting

Lavinia Stan

7.1 Introduction
Perhaps few other transitional justice methods have elicited so spirited a debate as
lustration and vetting, which in the twentieth century evolved as more restrained
versions of the purges that historically led to the marginalisation from public life
of public servants and political luminaries who remained loyal to the deposed
regimes. This chapter defines the two terms, provides a brief historical over-
view of the application of these reckoning practices during the twentieth century,
explains why some countries have opted for lustration and vetting while others
refrained from adopting these measures, and reviews five major points of con-
tention and controversy based on the experience to date. The cases of Ukraine,
the Czech Republic, Poland, and El Salvador demonstrate the backward-looking
and forward-looking goals of lustration and vetting, as well as the limitations of
these processes in helping new democracies come to terms with the legacy of the
recent past.

7.2 Definition of lustration and vetting

Lustration commonly refers to

the broad set of parliamentary laws that restrict members and collaborators of
former repressive regimes from holding a range of public offices, state manage-
ment positions, or other jobs with strong public influence (such as in the media or
academia) after the collapse of the authoritarian regime.1

1 Monica Nalepa, ‘Lustration’ in Lavinia Stan and Nadya Nedelsky (eds), Encyclopedia of Transi-
tional Justice (Cambridge University Press, 2013) vol 1, 46.
150 LavInIa Stan

This transitional justice policy targets individuals holding a wide range of public
offices such as elected and nominated public officials, heads of public universities
and the banking sector, national radio and television stations, judges and prosecu-
tors, even teachers and priests. These persons are dismissed or demoted from their
positions if the courts or independent state agencies find that they served as party
leaders or secret police agents of the previous authoritarian regime or if they fail
to disclose such past activities in a special written declaration that may or may not
be made public. Lustration – derived from the Latin lustratio (cleansing ritual)
and the Czechoslovak lustrace (‘mirror’ or ‘light’) – is a form of vetting, a com-
mon practice in post-authoritarian countries.
‘Vetting’ refers to a wide set of processes meant to evaluate ‘the integrity
of individuals to determine their suitability for continued or prospective public
employment.’2 In the transitional context where vetting is enforced, integrity
refers to ‘a person’s adherence to relevant standards of human rights and profes-
sional conduct, including her or his financial propriety.’3 Such screening of public
officials or candidates for public employment aims at determining if their prior
conduct and, more importantly, (dis)respect for human rights warrant their exclu-
sion from public office. Unlike historical purges or summary dismissals, which
target individuals for their membership in or affiliation with a group (for example,
a political party or the clientele of a particular leader), vetting involves assessment
of individual behavior, calls for individual review, and offers at least some proce-
dural guarantees to the individuals placed under evaluation.4
Both lustration and vetting seek to re-establish civic trust and re-legitimise
public institutions, as both lead to institutional reform and ‘the purification of state
institutions from within and without.’5 Grounded in administrative law, lustra-
tion and vetting are both forms of ‘administrative justice.’ At the same time, vet-
ting and lustration are different in scope and application. Vetting always involves
exclusion from employment, a dimension with which some lustration programs
(like the one in Poland) are not primarily concerned. Lustration can modify the
composition of the entire public administration when it is widely applied, whereas
no vetting program was ever so ambitious. As Cynthia Horne suggested, ‘Maybe
lustration is a type of vetting but not all vetting is lustration.’6

2 Alexander Mayer-Rieckh and Pablo de Greiff (eds), Justice as Prevention: Vetting Public Employ-
ees in Transitional Societies (Social Science Research Council, 2007) 524.
3 Ibid 548.
4 Ibid 524.
5 Jens Meierhenrich, ‘The Ethics of Lustration’ (2006) 20(1) Ethics and International Affairs 99.
6 Email communication from Lavinia Stan to Cynthia Horne, 29 November 2015.
 LuStratIon anD vettIng 151

7.3 Brief historical overview

It was only after the collapse of the communist regimes in 1989 that Central and
Eastern Europe championed lustration. However, vetting has had a long history in
both dictatorial and democratic countries. In democracies of Europe, North Amer-
ica, and Australia, the police, intelligence services, and armed forces routinely vet
applicants, as do some governmental bodies. Throughout history, authoritarian
countries carefully vetted applicants seeking access to top state positions (in the
state bureaucracy, the judiciary, the police, secret police, and armed forces), and
banned ideologically ‘unreliable’ individuals from accessing such posts. During
times of transition from authoritarianism to democracy, vetting was conducted in
Western Europe after World War II, Latin America after the ousting of military
juntas, Central and Eastern Europe after the collapse of communism, Northern
Africa and the Middle East after the Arab Spring, and other post-authoritarian and
post-conflict settings.
Vetting procedures have been implemented in Latin America (Argentina, El
Salvador), Africa (Liberia, the Democratic Republic of Congo), post-communist
Europe (Bosnia-Herzegovina, Kosovo, Bulgaria, Macedonia, Romania, Serbia
and Montenegro, Slovakia, Poland, Hungary, the Czech Republic, and Germany),
Former Soviet Republics (Estonia, Latvia, Lithuania), but also in other European
(Greece, Belgium), post-genocidal (Rwanda), and post-authoritarian countries
(Haiti, Afghanistan, East Timor). France also merits attention for its policies of
épuration and criblage, implemented after World War II in an effort to identify and
remove Nazi collaborators from within its extensive bureaucracy. While épura-
tion and criblage were specific to France, other de-Nazification policies – similar
in their general purpose but different in the public offices targeted for investiga-
tion and the time span of the ban – were enacted in other European countries. The
list of countries that implemented vetting procedures during times of transition is
certainly much longer.
Vetting applies to a country’s public sector, that is, the unelected government
officials who make up the state administration (or bureaucracy, as it is some-
times called). However, to date, no vetting policies have screened the entire public
sector of a given country. For various reasons, countries have preferred to vet
only some of their state institutions, assessing all or only some (usually leader-
ship) positions in each institution. From the experience to date, we know that
vetting mostly focused on institutions that were part of serious, violent human
rights abuses under the previous regime – primarily institutions in the judiciary
(the courts) and the state security sector (the police and the secret police). For
example, the armed forces were vetted in El Salvador and South Africa, countries
where they were responsible for most human rights violations. By contrast, where
less violent repression took the form of collaboration with the dictatorial regime
152 LavInIa Stan

and involved large numbers of individuals working in several state institutions,

vetting was wider in scope, affecting not only the state apparatus, but also univer-
sities and the media. For example, in Greece, after the dictatorship of the colonels
ended in 1974, vetting was more extensive in universities and the military than in
the courts and the police.7
The first lustration provision was included in the German Unification Treaty
of 1990. The treaty allowed the communist East Germany and the democratic
West Germany (which also included the western sectors of Berlin sealed off from
1961 to 1989 by the Soviet-built Berlin Wall) to come together again in a single
state. According to the lustration provision, employers could ask a specialized
governmental agency for information on an employee’s past involvement with the
notorious Stasi (the East German Ministry for State Security). Public officials and
candidates for such posts found to have provided secret information to the Stasi
were not allowed to retain, or gain, public office until 2006. Other countries in the
region followed suit by adopting lustration laws in order to deal with the legacy of
their communist regimes: Czechoslovakia in 1991, Lithuania in 1991 and 1999,
Bulgaria in 1992, Hungary and Estonia in 1994, Albania in 1995 and 1998, as well
as Poland in 1997 and 2006.
Lustration is based on either accusation or confession. The former makes
accusations based on evidence of collaboration with the former regime obtained
from archival and other sources of information. Accusation-based lustration was
implemented in Germany, the Czech Republic, Bulgaria, and Albania. By con-
trast, confession-based lustration allows individuals to disclose their past col-
laboration with the communist regime before the prosecutor presses charges. As
such, it ‘resembles plea bargaining by giving the lustrati the opportunity to con-
tinue their political activity in exchange for confessing their past activity and thus
proving their loyalty to the new democratic regime and removing the possibility
of blackmail.’8 Confession-based lustration sanctions only past association with
the communist regime that was kept secret from the public, not collaboration to
which the lustrati admit. Hungary, Poland, Lithuania, and Estonia preferred this
type of lustration.
Additional differences separated the lustration programs adopted in post-
communist Europe. Some programs screened very narrow categories of post-
communist officials (those working in state-owned banks and universities in
Bulgaria), while other programs screened both state institutions and civil society

7 Dimitri Sotiropoulos, ‘Swift Gradualism and Variable Outcomes: Vetting in Post-Authoritarian

Greece’ in Mayer-Rieckh and de Greiff, n 2, 120–145.
8 Nalepa, ‘Lustration’, n 1, 47–48.
 LuStratIon anD vettIng 153

organisations that accepted public funds (such as priests of the dominant Ortho-
dox Church in Romania). Some programs investigated only past involvement
with the communist secret security that compiled extensive secret archives on
millions of ordinary citizens in Central and Eastern Europe, while others looked
for past involvement in the Communist Party leadership as well. Some lustration
programs led to job loss (in Germany and the Czech Republic), while others did
not (in Slovakia and Romania). Some programs led to temporary bans from public
administration (five years in Bulgaria), while others had effects over an indefinite
period of time (the Czech Republic). The nature of the communist regime, the
type of exit from communism, and the ‘politics of the post-communist present’
have determined differences among national lustration programs.
While generating considerable controversy at home, post-communist lustra-
tion was adopted in other regions of the world. After the ousting of Saddam Hus-
sein in 2003, Iraq implemented a broad de-Baathification program that excluded
former members of Hussein’s Baath Party from the public administration, the
police, and the army. As a result, some 400,000 individuals, mostly men who
acted as breadwinners for their families, reportedly lost their jobs.9 More recently,
in May 2013 Libya’s National Congress (Parliament) overwhelmingly adopted a
Law of Political Isolation that aimed at banning former members of the dictator-
ship of Muammar Qaddafi from holding public office during transition. Qaddafi
had ruled the country with an iron fist from 1969 to 2011, routinely trampling on
the most basic human rights. Whatever its original purpose, the law failed to help
that country’s progress toward democracy.
The international community has increasingly seen lustration and vetting as
desirable for post-conflict and post-dictatorial societies, suggesting ways to align
these policies with the rule of law. In 2007 the International Center for Transitional
Justice, an international organisation based in New York, issued a set of opera-
tional guidelines for vetting that built on the Rule of Law Tools for Post-Conflict
States. Vetting: An Operational Framework, a document issued in 2006 by the
Office of the United Nations High Commissioner for Human Rights (UNHCR).
The guidelines explain the conditions for a vetting process and the risks of unde-
sirable consequences, describe different types of vetting, outline rules to design
a vetting process, and present institutional reforms that make vetting effective
and sustainable.10 The UNHCR document, in turn, ponders the role of interna-
tional organisations in national vetting programs, and proposes guidelines that

9 Beth Dougherty, ‘Iraq’ in Stan and Nedelsky, n 1, vol 2, 236–243.

10 International Center for Transitional Justice, ‘Vetting Public Employees in Post-Conflict Settings:
Operational Guidelines’ in Mayer-Rieckh and de Greiff, n 2, 546–564.
154 LavInIa Stan

post-dictatorial countries can use to assess the situation, define the parameters,
and design vetting programs.11

7.4 Purpose: why countries opt for

lustration and vetting
Lustration and vetting presumably offer a series of benefits that make them appealing
to new democracies. Before reviewing the most important such purposes, note the
peculiar position of many post-conflict and post-authoritarian countries. By the time
they underwent a regime change through revolutions or negotiations in the 1970s and
the 1980s, Central and Eastern Europe and Latin America had lived through decades
of authoritarianism that significantly altered the composition of their political, mili-
tary, even economic and cultural, elites. Elite members opposing or defying the
military junta or the communist authorities had been murdered, exiled, silenced, or
sidelined from public life, being replaced with individuals loyal to regimes involved
in egregious human rights violations. As a result, regime supporters dominated not
a tiny fraction but an overwhelming majority of the public administration and state
bureaucracy, the economy, mass media, and universities. These public officials and
luminaries acquired political, managerial, and administrative experience in virtue of
loyalty to the regime, personal connections, or condoning human rights abuses, more
than personal merit or superior skills. Several arguments have been put forward in
support of vetting these tainted elites through lustration and vetting.
First, both policies lead to personnel changes in public administration by
facilitating the replacement of old elites with new ones, and inhibiting the repro-
duction of old elites into the new state apparatus. They represent a break between
the dictatorial past and the democratic present, and ‘provide opportunities for
state and societal rebuilding and reconciliation, which is often deemed necessary
in the wake of a conflict or authoritarian regime change.’12 To understand why a
clear break with the old regime is needed, think about the alternative to lustration
and vetting, when the new government does little to prevent old elites from retain-
ing positions of power and privilege after the regime change. In this case, the indi-
viduals who controlled the state machinery and held the most desirable positions
in the society under dictatorship are also those who do so after the regime change.
Such a situation would hardly convince the citizens, especially the former victims
of the dictatorial regime, to trust the new democracy.

11 Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for Post-
Conflict States – Vetting: An Operational Framework (United Nations, 2006).
12 Cynthia Horne, ‘Vetting and Lustration’ in Cheryl Lawther, Luke Moffett and Dov Jacobs (eds),
Research Handbook on Transitional Justice (Routledge, 2017), pp. 424–444.
 LuStratIon anD vettIng 155

Second, lustration and vetting improve the trustworthiness of public insti-

tutions by removing individuals untrustworthy to fulfil the mandate of the new
regime. Lustration in particular was linked to building trust in the government,
and the society at large. Whereas the dictatorship condones human rights viola-
tions and protects perpetrators from being held accountable for their trespasses,
the new democracy demonstrates commitment to hold perpetrators accountable
for past crimes by administrative justice measures. In the process, public institu-
tions are cleansed of old elites, and new individuals with the skills required for
the job and commitment to the new democracy and its human rights standards
can assume those positions. Trust is key to a stable democracy, which needs its
citizens to believe that the new regime works for them, not just for a narrow, privi-
leged elite unconcerned with the public good.
Third, by removing the old elites, lustration and vetting improve governmen-
tal performance and make the state machinery more accountable to the people,
thus indirectly supporting democratisation. They do so by breaking the culture
of impunity fostered under authoritarianism, dismantling informal networks that
keep the state a prisoner to the interests of old elites, removing the possibility
that those elites are blackmailed for their past, and preventing future abuses of
power by tainted officials. In short, lustration and vetting are said to help improve
the functionality and efficiency of the state apparatus and make it responsive to
citizens’ demands. This is most evident in the case of the judiciary (which had
covered the human rights abuses of the dictatorship by siding with the regime
against the victims), and the armed forces, the police, and the state security (which
engaged in repression). In the Czech Republic, for example, lustration ‘protected
national security against the threat to the democratic transition posed by non-
democratic old elite networks and the potential for blackmail on the part of former
secret agents with access to evidence of politicians’ former collaboration.’13
A related argument points to the extensive and ruthless corruption networks
set up by former secret agents and Communist Party officials who retained their
influence in the new democracy. Their corrupt behavior is seen as a reason to
lustrate them during the initial stages of post-communist transformation. Bulgaria
and Romania are countries where secret officers and informers converted their
communist-era political clout into political and economic advantage after 1989.
In Bulgaria, the communist State Security ‘privatized’ itself

after its officers launched private businesses and secured well-paid management
positions in private firms set up by former communist apparatchiks. Relying on the

13 Nalepa, ‘Lustration’, n 1, 48.

156 LavInIa Stan

agents’ network of contacts and specialized knowledge, these firms established

close ties to the emerging organized criminal groups and the budding local mafia.14

In Romania, former secret agents and Communist Party officials used insider
information to acquire massive fortunes from the privatisation of state-owned
enterprises and the property restitution process, in the process keeping the post-
communist state a captive to their interests. Their unparalleled influence over key
political parties and the country’s most important mass media companies and
business empires allowed them to stall transitional justice, and avoid prosecution
and lustration.15
Last, lustration and vetting are said to provide minimal justice because they
exclude the former perpetrators politically, but do not prosecute them criminally.
Supporters of the old regime are denied only the right to hold elected and/or nomi-
nated positions in the new democratic government, to represent the interests of
the electorate in parliament, and to influence from those positions the formulation
and implementation of public policy. However, they are free to engage in other
activities and may become, for example, successful and rich businesspeople or
respected academics. At the same time, the processes which enable the public
identification of former perpetrators in view of banning them from public office
(for example, the analysis of secret archives containing the information provided
by secret agents to state security) help to reveal the truth about the repressive
character of the ousted regime, and the nature of the crimes committed by its
henchmen. For the former victims and their surviving relatives, truth revelation
represents a precondition of democratisation.

7.5 Points of contention and controversy

Lustration and vetting have generated considerable controversy in almost every
country where they have been implemented. Their supporters mention the ben-
efits summarized above, whereas their detractors resort to some of the following
arguments:
First, many analysts lament the fact that lustration and vetting claim to facili-
tate democratisation while in fact they deny some citizens one of their funda-
mental political rights: the right to be elected or nominated to public office. True,
former collaborators are free to remain active in the private sector, but banning
them from public office means that they cannot directly shape public policy and

14 Momchil Metodiev, ‘Bulgaria’ in Lavinia Stan (ed), Transitional Justice in Eastern Europe and the
Former Soviet Union (Routledge, 2009) 167.
15 Stan, n 14.
 LuStratIon anD vettIng 157

decide the country’s future. Can a new democracy rest on such blatant discrimina-
tion? Are vetting and lustration not similar in this respect to the purges of former
political, economic and cultural elites operated by the communist regime imme-
diately after World War II? How can one expect to move away from communism
when adopting the very policies that made that regime so despicable in the eyes
of Central and Eastern Europeans?
Second, lustration and vetting undermine democratisation because they can
easily spiral down to represent exercises of assigning collective, rather than indi-
vidual, guilt. This could lead, for example, to the dismissal of all those who served
as communist county secretaries, irrespective of whether they were personally
involved in human rights violations. Though to date most lustration and vetting
programs have included provisions designed to ascertain individual guilt based on
information collected from a variety of sources, their critics remain suspicious that
screening might amount to a blanket policy that insufficiently distinguishes shades
of guilt.16 When lustration and vetting lead to job loss, this charge rings truer, since
both a person who briefly worked for the previous regime and a person who made
a life-time career as an authority figure of the authoritarian regime receive the same
penalty: dismissal or demotion. The same is true in the case of confession-based
lustration, when refusal to confess past collaboration leads to job loss for, say, a
notorious prison guard responsible for human rights violations perpetrated dur-
ing many years, even decades, and a young recruit of the secret police hired only
months before the regime change. Since shades of guilt are not properly acknowl-
edged, critics say, lustration and vetting are unable to bring truth and justice.
Third, lustration and vetting were also criticized for undermining, rather than
facilitating reconciliation, a key goal of any successful transitional justice pro-
gram. The two policies, critics assert, subject people

to loss of jobs and income, never an indifferent loss, but particularly not under
circumstances, all too common in post-conflict and transitional societies, in which
economies are in crisis and job creation is stagnant if not receding. The effects of
such loss are particularly severe for members of the security sector, most of whom
may not be particularly highly skilled or have skills that can be easily transferred
to other economic activities.17

These economic effects, coupled with the public shaming, even opprobrium, that
sometimes accompanies lustration and vetting can turn the vetted individuals

16 Council of Europe, Parliamentary Assembly, Resolutioin 1096 – Measures to Dismantle the Heri-
tage of Former Communist Totalitarian Systems, 27 June 1996 <http://assembly.coe.int/nw/xml/
XRef/Xref-XML2HTML-en.asp?fileid=16507&lang=en>.
17 Mayer-Rieckh and de Greiff, n 2, 525.
158 LavInIa Stan

against the new democracy. How can one have a stake in the new system, if
excluded from it and forced into a life of deprivation? In unstable settings like
Iraq after Hussein and Libya after Qaddafi, the dismissal of many regime sup-
porters who were then unable to gain employment and respect in the new state
brought them closer to armed insurgent and terrorist groups threatening the very
existence of the state.
Fourth, sidelining tainted public officials deprives the public adminis-
tration of valuable expertise for effecting the sweeping reforms needed to
move these countries away from authoritarianism and closer to democracy.
The hiring of new officials is unlikely to adequately replace this lost expertise
since in post-dictatorial and post-conflict countries the opposition is generally
weak and inexperienced, as its members had been systematically prevented
from acquiring political and administrative experience. Repression under dic-
tatorships left little room of action for antigovernment opponents, dissidents
and critics. These individuals might support democracy and human rights, but
professionally they are less prepared than their banned predecessors, who in
addition might have served the regime out of a misplaced sense of patriotism
that should not be held against them by the new democratic authorities. Vet-
ting, it is claimed, negatively affects the effectiveness of key state institutions
during democratisation. This is particularly true when the new state security
and armed forces cannot hire agents and collaborators of the former army
and secret police, who represent the country’s only professional military and
security corps.
Fifth, still other voices were raised against the use of secret archives as the
main source of information for lustration. In Central and Eastern European coun-
tries where lustration extends to post-communist public officials who spied for the
communist secret police, the identity of former secret collaborators is established
primarily on the basis of the secret archives. Under communism, the secrecy of
data collection meant that only the state security and the informers knew about
it. Breaking the secrecy of the collaboration forced the secret police to abandon
the informer. Since few former informers have publicly confessed their past, the
only way to find out their identity is from the secret archives. However, archives
were partly destroyed in 1989 by secret officers eager to cover their human rights
violations (communist constitutions, for instance, guaranteed the secrecy of the
correspondence, which the secret police routinely infringed). Under pressure
from their superiors to prove their worth, some secret officers recorded untruthful
information, even reporting imaginary or dead persons as active informers, as in
Romania. In that country and others, the secret archives were tampered with after
1989, documents being added, destroyed, or modified. Even if we assume that that
the secret archive of today is the same as the secret archive of the last day of the
communist regime, remember that files present a distorted picture of communist
 LuStratIon anD vettIng 159

reality. Many dissidents cannot recognize themselves in some of the secret doc-
uments, which recorded information sifted through the ideological lens of the
repressive secret police. The agents did not engage in honest research designed to
portray reality truthfully or risk invalidating their decision to monitor a particular
individual. Rather, they sought to weed out anticommunist opposition and to sup-
press attempts to challenge the state.

Case study a: lustration in Central and eastern europe

Communist parties dominated Central and Eastern Europe after World War II,
transforming those countries into one-party states with command, centrally
planned economies. To ensure control over the society, communist authorities
unleashed waves of repression carried out by extensive secret police networks.
Other parties were banned or weakened; civil society was brought under the con-
trol of the Communist Party; censorship was imposed; and former elites were
arrested, persecuted, and excluded from public life. In these party-states the
Communist Party leaders occupied the top state positions (the so-called nomen-
klatura). By the late 1980s, the communist parties had become mass formations
on which the livelihood of one-third, even half in some countries, of the total
population depended. Party membership was essential to obtain and retain a
post in public administration, academia and the state-owned economy, and even
to write the entry exam for “sensitive” university programs (including sociology
and philosophy).
While the 1950s and the 1960s witnessed massive arrests and ruthless per-
secution of opponents, the 1970s and the 1980s brought about the surveillance of
vast social segments by the secret police. Full-time secret officers with military
rank and part-time secret informers drawn from all walks of life collected infor-
mation on millions of citizens. In East Germany, the Stasi employed 102,000 full-
time officers and 174,000 unofficial collaborators in 1989. It also kept records
on 6 million people, about one-third of East Germany’s 17 million citizens. In
all countries, the secret police reached deep into the public administration. In
Romania, for example, “90 percent of the personnel in ministries dealing with
propaganda or foreign partners were Securitate collaborators,” in 1989 “the top
leadership of the main ministries down to bureau heads was represented by
Securitate officers whose identity was covered, residents or collaborators,” and
“in every institution the party secretary, administrators and managers were all
part of the Securitate information network.”18 The situation in other communist
countries was similar.

18 Horia Roman Patapievici, cited in Lavinia Stan, Transitional Justice in Post-Communist Romania
(Oxford University Press, 2014) 85.
160 LavInIa Stan

Case study B: the Czech republic

The accusation-based Lustration Law No 451, adopted by the Czechoslovak fed-
eral parliament in October 1991, applied to those persons who, during the com-
munist regime (25 February 1948–17 November 1989), were members, agents,
and collaborators of the communist State Security (StB), owners of StB “conspira-
tion apartments,” Communist Party officials from the district level up, and mem-
bers of the purge committees in 1948, among other categories. These individuals
could not be employed in most elected or appointed positions in the federal and
republican government levels (except as members of parliament), or hold rank
above colonel in the army, management positions in state-owned enterprises,
the official press agency, top positions in universities and the national radio and
television, the Supreme Court, and positions as judges and prosecutors. The
five-year ban was subsequently prolonged indefinitely. The Ministry of Interior
certifies employees and applicants for employment, and dismisses, rejects, or
demotes them. Employees who shape the intellectual contents of the communi-
cation media can be screened with their consent.
In 1992 the Constitution Court annulled the law’s application to candidates
for recruitment by the StB, after investigations revealed than only about 3 per-
cent of 600 candidates scrutinized in 1991 and 1992 had actually collaborated
with the secret police. Later that year, Czechoslovakia separated into the Czech
and Slovak Republics. While Slovakia chose to ignore the Lustration Law because
of lack of political will to implement the ban and lingering popular support for
some communist policies, the Czech Republic implemented it. From 1991 to
2005, the Czech Ministry of Interior issued as many as 451,000 lustration cer-
tificates detailing public officials’ collaboration or non-collaboration with the
communist authorities. A mere 2.03 percent of those certificates read that the
person was registered under one of the law’s specified categories. During the
same period, the civil courts found for the plaintiff in most of the 870 suits that
contested the verdict.19

Case study C: Poland

The Polish communist secret police (SB) arrested over 243,000 persons in the
period 1944–1956, and facilitated the deportation of some 2 million Poles to the
Soviet Union during the early years of the communist regime. In the 1980s, the
Polish communist authorities enacted a martial law designed to weaken the Soli-
darity trade union, the largest opposition group in communist Central and East-
ern Europe. By late 1989, the SB employed some 52,000 informers.20
Poland was the first country in Central or Eastern Europe to move away
from communism through a popular election organized as a result of a pacted

19 Nadya Nedelsky, ‘Czechoslovakia and the Czech and Slovak Republics’ in Stan, n 14, 49.
20 Stan, n 14, 78.
 LuStratIon anD vettIng 161

negotiation between the Communist Party officials and the opposition, repre-
sented mainly by Solidarity. The pact, not formally supported by the people,
was seen by many as amounting to amnesty for communist officials. As such, it
was only in April 1997 that Poland enacted a confession-based Lustration Law
that targeted the former SB agents and collaborators, but not the Communist
Party members and/or leaders. According to the law, all elected state officials
from the rank of deputy provincial governor upwards to the ministers, the pre-
mier and the president, as well as barristers, judges, prosecutors, and pub-
lic mass media leaders had to submit written declarations stating whether or
not they consciously worked for or collaborated with the SB between 1944 and
1990. A Lustration Court checked the declarations’ accuracy against the secret
archives. Collaboration had to be secret, conscious, and connected to the SB’s
operations. Individuals making false declarations were banned from politics for
ten years and had their names published in the State Gazette. By contrast, the
political careers and public image of former SB agents who acknowledged col-
laboration were not affected, as they retained their posts. Verdicts were subject
to appeal, which was binding. Anyone found guilty of lying had to resign the
office immediately.
By mid-1999, only 300 of all 23,000 officials asked to provide lustration state-
ments admitted to their secret collaboration. In the following years, the Lustra-
tion Court examined very few statements, a pace that deeply dissatisfied some
politicians and civil society members. Believing that confession-based lustration
was unable to replace the elites and bring closure to former victims, in Decem-
ber 2006 the conservative Law and Justice Party proposed a radical Lustration
Law that required some 700,000 citizens in 53 authority positions (university
professors and teachers, journalists, state company managers, and individuals
holding positions in the private sector born before 1 August 1972) to declare in
writing whether they collaborated with the SB.21 Individuals found to have lied
could lose their jobs and be subject to a ten-year professional ban. The Constitu-
tional Court declared the law unconstitutional in May 2007. As a result, that law
was never enacted.

Case study D: vetting public employees in transitional

societies
A number of transitional societies have adopted vetting to reckon with the past.
While most vetting procedures are implemented in times of transition, they differ
significantly in terms of the offices they target as well as the practical effects and
duration of the ban.

21 Ibid 86.
162 LavInIa Stan

Case study e: el Salvador

In 1992 El Salvador concluded a 12-year civil war that pitted the government,
backed by the military, against violent guerrillas who claimed to fight in the name
of democracy. The peace accords were the result of negotiations between the
two sides, conducted under international supervision. Before the start of the civil
war, the armed forces assumed the management of the state, used repression
against those who rejected military domination, and allowed the opposition very
limited space. Because the military controlled most of the levers of power, “it
enjoyed a level of impunity that placed its members above the citizenry at large.”22
The three-pronged vetting program aimed at transforming El Salvador into
a stable democracy bound by the rule of law. Total vetting abolished an entire
institution, dismissing its personnel and forbidding it from applying to the new,
similar institution created by the accords. For example, the National Guard and
the Treasury Police were abolished, and their members were incorporated into
the armed forces. Military and police officers were subject to direct vetting, which
evaluated them in order to determine who should be dismissed. Officers could
apply to the new force by being subject to an evaluation of their past conduct
in addition to professional assessments. Indirect vetting, which applied to the
armed forces, the police, and the judiciary, subjected the personnel to new selec-
tion procedures in the future. For the armed forces and the police, the peace
accords included a new system for professional training of the officers and
reforms seeking to guarantee that the institution would never again engage in
repressive behaviour.
An ad hoc commission, which undertook the vetting (depuración) of the
military officer corps, represents “the first (and only) example of a Latin Ameri-
can military submitting to an external civilian review panel with the power to
fire or transfer officers.”23 The commission evaluated each officer’s past perfor-
mance, including his record of respect for human rights, professional compe-
tence, and capacity to function in the new democracy.24 The commission could
recommend the transfer or dismissal of officers with “serious deficiencies” in
any one of these three areas. Assessments relied on information obtained from
the individual “service sheet” requested from the Ministry of Defense, details
about the officer’s conduct received from private sources, non-governmental
organisations, and foreign governments, as well as a personal interview with
the officer.
The commission’s impact was greatly restricted by time and secrecy. To
complete its evaluations within three months, the period stipulated by the peace
accords, the commission chose to focus on the three highest echelons (gener-
als, colonels, and lieutenants), and therefore did not investigate lower echelons
that included even greater numbers of human rights offenders. Its final report,
which remained secret and was not divulged publicly, named only 15 officers who

22 Ruben Zamora and David Holiday, ‘The Struggle for Lasting Reform: Vetting Processes in El
Salvador’ in Mayer-Rieckh and de Greiff, 81.
23 Ibid 89.
24 ‘The United Nations and El Salvador’ (1995) 4 United Nations Blue Book Series 195.
 LuStratIon anD vettIng 163

needed to be dismissed or transferred. The vetting of senior military officers was

seen as an important component of the peace process in El Salvador, although
“none of these officers expressed any repentance for past behavior or was ever
brought before tribunals.”25

7.6 Current position

The experience to date with lustration and vetting has provided a mixed record of
the efficiency of these processes in delivering the benefits their supporters antici-
pated. Neither were the shortcomings used by their critics for undermining the legit-
imacy of these processes as significantly as anticipated. With each new democratic
country that entertains the possibility of enacting such policies, it seems that public
debates bring forth with equal strength the pluses and minuses of each policy and
that each new designed policy is only marginally better in terms of practicality and
morality than its historical predecessors adopted in other settings. As post-conflict
and post-dictatorial countries differ in terms of their historical evolution, the nature
of the recent past, the level of repression whose legacy must be reckoned with, the
type of regime change, and the post-revolutionary balance of power among political
formations, it is likely that these debates will not be resolved soon.
While many countries chose to enact lustration and vetting, an equal, even
larger, number of other countries retained old elites in the name of reconciliation
or effected changes in the elite through other means. Therefore, analysts argue,
lustration and vetting are not essential for the successful initiation and consolida-
tion of democracy in post-dictatorial and post-conflict settings. After the apartheid
regime was dismantled, for example, South Africa implemented only very lim-
ited vetting. The public service sector underwent rationalisation and demographic
change, whereas changed political currents influenced the composition of political
party leaderships. Only the judiciary and the state security faced significant insti-
tutional practices of personnel turnover. The Judicial Service Commission (JSC)
was established to determine the composition of the courts. Within the security
services, different services were first amalgamated and vetting on grounds of loy-
alty to the state was later instituted.26 It is a matter of contention whether the
social and political difficulties that currently plague South Africa could have been
avoided by implementing wider vetting processes.

25 Zamora and Holiday, n 22, 96.

26 Jonathan Klaaren, ‘Institutional Transformation and the Choice against Vetting in South Africa’s
Transition’ in Mayer-Rieckh and de Greiff, n 2, 146–179.
164 LavInIa Stan

The most recent case where administrative justice measures were imple-
mented is Ukraine. After gaining independence from the Soviet Union in 1991,
Ukraine sought to strengthen its ties to the European Union in the hope of gaining
acceptance as a member state. In 2014, however, President Viktor Yanukovych
refused to sign the agreement, at Russia’s urging. After his ousting from office in
February 2014 in the so-called Euromaidan Revolution, the new Prime Minister,
Arseniy Yatsenyuk, established a Committee on Lustration within his govern-
ment. The October 2014 Lustration Law instituted ‘procedures for conducting
checks of government officials and people nominated for government position
with the purpose of deciding whether they meet certain criteria for occupying
relevant post.’27 That month, the law resulted in the removal of 39 officials, 19 of
whom voluntarily renounced their positions. Among those officials were heads
of central executive agencies, first deputy ministers, deputy ministers, members
of national commissions, and one head of the regional state administration. The
ban was for ten years. By April 2015, 2,000 officials of the Yanukovych regime
were lustrated, of whom 1,500 quit voluntarily and 427 were dismissed.28 Both
the Ukrainian Constitutional Court and the Council of Europe criticized the law
as unreasonable, as well as too broad in scope and therefore affecting too many
individuals who could not be easily replaced. By contrast, Ukrainian civil society
representatives criticized the slow pace of lustration and voiced their fear that lack
of political will might impede the full implementation of the law.

7.7 Conclusion
Lustration and vetting are key transitional justice programs meant to facilitate the
renewal of elected and nominated government structures, including the public
administration, the judiciary, the armed forces, the police, and the state security
sector. They fulfil backward-looking and forward-looking goals that recommend
them as effective transitional justice tools in countries where there is a modicum of
consensus among citizens and politicians that the elites must undergo a process of
renewal. When emphasizing individual guilt and clearly specifying the categories
of public officials to be screened, as well as the reasons and the time period for the
ban, lustration and vetting policies can alleviate public concerns for fairness and
accountability. Nevertheless, the experience to date with lustration and vetting is

27 ‘Rada Passes Bill on Government Lustration in First Reading’, Interfax-Ukraine (online),

14 August 2014 <http://en.interfax.com.ua/news/general/218428.html>.
28 Alyona Zhuk, ‘Critics Fear Officials Trying to Sabotage Lustration Drive’, Kyiv Post (online),
23 April 2015 <www.kyivpost.com/content/kyiv-post-plus/critics-fear-officials-trying-to-sabotage-
lustration-drive-38699 6.html>.
 LuStratIon anD vettIng 165

mixed, as in some cases they facilitated truth telling, minimal justice, and democ-
ratisation, while in other cases they apparently impeded them. In spite of the wide
diversity of screening practices adopted all over the world, it seems that most post-
conflict and post-dictatorial countries regard the screening of their most repressive
state institutions (the secret police, the armed forces, and the judiciary) as a neces-
sary step in bringing closure to fragmented societies and preventing future abuses.

7.8 Summary
Lustration and vetting are key transitional justice programs meant to facilitate
the renewal of elected and nominated structures of government. While a number
of new democracies in Europe, Latin America, the Middle East, Africa, and Asia
adopted these programs after World War II, other new democracies have chosen
to retain tainted public officials in the name of reconciliation and social harmony.
Several arguments are put forth in support and against lustration and vetting. Some
analysts point out that the two programs represent a break between the dictatorial
past and the democratic present, improve the citizens’ trust in the government
and the society at large, facilitate democratisation by boosting the performance of
the government and making the state machinery more accountable to the people,
and provide minimal justice by punishing former collaborators. Others argue that
lustration and vetting deny citizens the fundamental political rights to be elected
or nominated to public office, assign collective guilt, undermine reconciliation by
depriving some citizens of their jobs and income, deprive government institutions
of the expertise of valuable public officials, and rely on secret archives whose
reliability is questionable at best. The cases of the Czech Republic, Poland, and
El Salvador provide valuable insights into the way in which accusation-based and
confession-based lustration as well as vetting work in practice.

7.9 Discussion and tutorial questions

1) What are the main arguments in favour of denying old elites public office
after the regime change?
2) What are the main arguments against lustration and vetting?
3) In your opinion, is vetting or lustration more prone to abuse?
4) Are secret files reliable sources of information about the communist past?
5) Secret archives are important sources of information for lustration commis-
sions. Can you think of some arguments in favour of retaining the secrecy
of the secret archives (instead of opening them to the citizens) in new
democracies?
166 LavInIa Stan

Suggested reading
David, Roman, Personnel Systems in the Czech Republic, Hungary and Poland (Uni-
versity of Pennsylvania Press, 2011).
Funder, Anna, Stasiland: Stories from Behind the Berlin Wall (Harper Perennial,
2011).
The Lives of Others (Directed by Florian Henckel von Donnersmarck, Wiedemann &
Berg Filmproduktion, Bayerischer Rundfunk, 2006).

Bibliography
Council of Europe, Parliamentary Assembly, Resolution 1096 – Measures to Dis-
mantle the Heritage of Former Communist Totalitarian Systems, 27 June 1996
<http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=
16507&lang=en>.
Dougherty, Beth, ‘Iraq’ in Lavinia Stan and Nadya Nedelsky (eds), Encyclopedia of
Transitional Justice (Cambridge University Press, 2013) vol 2, 236–243.
International Center for Transitional Justice, ‘Vetting Public Employees in Post-
Conflict Settings: Operational Guidelines’ in Alexander Mayer-Rieckh and
Pablo de Greiff (eds), Justice as Prevention: Vetting Public Employees in Transi-
tional Societies (Social Science Research Council, 2007) 546–564.
Klaaren, Jonathan, ‘Institutional Transformation and the Choice against Vetting
in South Africa’s Transition’ in Alexander Mayer-Rieckh and Pablo de Greiff
(eds), Justice as Prevention: Vetting Public Employees in Transitional Societies
(Social Science Research Council, 2007) 146–179.
Mayer-Rieckh, Alexander and Pablo de Greiff (eds), Justice as Prevention: Vetting
Public Employees in Transitional Societies (Social Science Research Council,
2007).
Meierhenrich, Jens, ‘The Ethics of Lustration’ (2006) 20(1) Ethics and International
Affairs 99–120.
Metodiev, Momchil, ‘Bulgaria’ in Lavinia Stan (ed), Transitional Justice in Eastern
Europe and the Former Soviet Union (Routledge, 2009) 152–175.
Nalepa, Monica, ‘Lustration’ in Lavinia Stan and Nadya Nedelsky (eds), Encyclo-
pedia of Transitional Justice (Cambridge University Press, 2013) vol 1, 46–51.
Nedelsky, Nadya, ‘Czechoslovakia and the Czech and Slovak Republics’ in Lavinia
Stan (ed), Transitional Justice in Eastern Europe and the Former Soviet Union
(Routledge, 2009) 37–75.
Office of the United Nations High Commissioner for Human Rights, Rule of Law
Tools for Post-Conflict States – Vetting: An Operational Framework (United
Nations, 2006).
Sotiropoulos, Dimitri, ‘Swift Gradualism and Variable Outcomes: Vetting in Post-
Authoritarian Greece’ in Alexander Mayer-Rieckh and Pablo de Greiff (eds),
Justice as Prevention: Vetting Public Employees in Transitional Societies (Social
Science Research Council, 2007) 120–145.
 LuStratIon anD vettIng 167

Stan, Lavinia, Transitional Justice in Post-Communist Romania: The Politics of Mem-

ory (Cambridge University Press, 2013).
Stan, Lavinia and Nadya Nedelsky (eds), Post-Communist Transitional Justice: Les-
sons from 25 Years of Experience (Cambridge University Press, 2015).
‘The United Nations and El Salvador’ (1995) 4 United Nations Blue Book Series 195.
Zamora, Ruben and David Holiday, ‘The Struggle for Lasting Reform: Vetting Pro-
cesses in El Salvador’ in Alexander Mayer-Rieckh and Pablo de Greiff (eds),
Justice as Prevention: Vetting Public Employees in Transitional Societies (Social
Science Research Council, 2007) 80–118.
Zhuk, Alyona, ‘Critics Fear Officials Trying to Sabotage Lustration Drive’, Kyiv Post
(online), 23 April 2015 <www.kyivpost.com/content/kyiv-post-plus/critics-
fear-officials-trying-to-sabotage-lustration-drive-386996.html>.
Chapter 8

Local transitional justice

Customary law, healing rituals, and
everyday justice

Lars Waldorf

8.1 Introduction
Starting in the early 2000s, transitional justice has increasingly embraced the
local by encouraging, employing, and appropriating ‘indigenous’ norms, ‘tradi-
tional’ mechanisms, and healing rituals to repair communities affected by mass
atrocities.1 This forms part of the wider turn towards the local in peacebuilding
theory and practice.2 There are several factors behind this development of ‘local
transitional justice’.3 First, the United Nations and other stakeholders recognised

1 See Rosalind Shaw and Lars Waldorf (eds), Localizing Transitional Justice: Interventions and Pri-
orities after Mass Violence (Stanford University Press, 2010); Alex Hinton (ed), Transitional Jus-
tice: Global Mechanisms and Local Realities after Genocide and Mass Violence (Rutgers University
Press, 2010); Dustin N Sharp, ‘Addressing Dilemmas of the Global and the Local in Transitional
Justice’ (2014) 29 Emory International Law Review 71; Lisa Denney and Pilar Domingo, ‘Local
Transitional Justice: How Changes in Conflict, Political Settlements, and Institutional Development
Are Reshaping the Field’ in Roger Duthie and Paul Seils (eds), Justice Mosaics: How Context Shapes
Transitional Justice in Fractured Societies (International Center for Transitional Justice, 2017); Lars
Waldorf, ‘Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice’ (2006) 79
Temple Law Review 1. For a recent critique, see Adam Kochanski, ‘The “Local Turn” in Transitional
Justice: Curb the Enthusiasm’ (2020) 22 International Studies Review 26.
2 For somewhat contrasting views on the local turn, compare Roger MacGinty and Oliver Rich-
mond, ‘The Local Turn in Peacebuilding: A Critical Agenda for Peace’ (2013) 34 Third World
Quarterly 763 with Thania Paffenholz, ‘Unpacking the Local Turn in Peacebuilding: A Critical
Assessment towards an Agenda for Future Research’ (2015) 36 Third World Quarterly 857.
3 There is considerable debate over terminology. This chapter uses the term ‘local transitional jus-
tice’ to describe ‘local justice’ used as transitional justice. Local justice is a broad category that
embraces customary law, healing rituals, and everyday justice. Contra Kochanski, local transitional
justice may be more or less informal, participatory or holistic. Kochanski, n 1, 3. By contrast, Allen
and Macdonald employ the term ‘post-conflict traditional justice’ even though they acknowledge
this is something of a ‘misnomer’. Tim Allen and Anna Macdonald, Post-Conflict Traditional Jus-
tice: A Critical Overview (LSE, 2013) 21. Indeed, some of the practices they describe are neither
‘traditional’ nor post-conflict.
170 LARS WALDORF

that the transitional justice ‘tool kit’ cannot be applied uniformly across different
political and legal cultures (that is, one size does not fit all).4 Second, these actors
realised that transitional justice cannot work without ‘local ownership’, including
community participation. Third, stakeholders were searching for more effective,
more efficient, and less costly justice mechanisms than internationalised tribunals
and national trials. Fourth, they wanted less state-centric and more legally plural-
ist forms of transitional justice given the inability and unwillingness of many
states to engage in meaningful accountability. Finally, transitional justice was
slowly becoming more responsive to what victims and their communities actually
want – which also meant taking their cultural values, informal institutions, and
everyday practices seriously.5
Local transitional justice can take many different forms – from magamba
spirit healers in Mozambique6 to memory initiatives in Guatemala7 to ritual dis-
pute-resolution processes in Timor Leste.8 Some focus on perpetrators, others on
victims. Some are top-down, state creations while others are bottom-up, grass-
roots initiatives. Some are funded by international donors while others depend
solely on local resources. Some are linked to formal transitional justice mecha-
nisms (for example, trials and truth commissions) while others stand apart on their
own. These forms vary greatly in terms of ‘authenticity’ (indigeneity), formality,
and capture – three factors that inevitably affect the authority, legitimacy, and,
ultimately, efficacy of local transitional justice in specific contexts.

4 As the former UN Independent Expert on Combating Impunity wrote: ‘Given the extraordinary
range of national experiences and cultures, how could anyone imagine there to be a universally
relevant formula for transitional justice?’ Diane F Orentlicher, ‘“Settling Accounts” Revisited:
Reconciling Global Norms with Local Agency’ (2007) 1 International Journal of Transitional
Justice 10, 18.
5 See Laurel E Fletcher and Harvey M Weinstein, ‘Transitional Justice and the “Plight” of Victim-
hood’ in Cheryl Lawther, Luke Moffett, and Dov Jacobs (eds), Research Handbook on Transitional
Justice (Edward Elgar, 2017) 244; Simon Robins, ‘Failing Victims? The Limits of Transitional
Justice in Addressing the Needs of Victims of Violations’ (2017) 11 Human Rights and Interna-
tional Legal Discourse 41.
6 See Victor Igreja and Beatrice Dias-Lambranca, ‘Restorative Justice and the Role of Magamba
Spirits in Post-Civil War Gorongosa, Central Mozambique’ in Luc Huyse and Mark Salter (eds),
Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences
(IDEA, 2008).
7 See Laura J Arriaza and Naomi Roht-Arriaza, ‘Weaving a Braid of Histories: Local Post-Armed
Conflict Initiatives in Guatemala’ in Shaw and Waldorf, Localizing Transitional Justice, n 1.
8 See Dionisio Babo-Soares, ‘Nahe Biti: Grassroots Reconciliation in East Timor’ in Elin Skaar, Siri
Gloppen, and Astri Suhrke (eds), Roads to Reconciliation (Lexington Books, 2005); Piers Pigou,
Timor-Leste: The Community Reconciliation Process of the Commission for Reception, Truth and
Reconciliation (United Nations Development Program, 2004).
 LOCAL TRANSITIONAL JUSTICE 171

While local transitional justice can be found throughout the world, the best
known and most fiercely debated examples – gacaca in post-genocide Rwanda
and mato oput in northern Uganda – are in Africa. This is not surprising. Over
the past 25 years, Africa has been a prominent testing ground for experiments in
transitional justice, including South Africa’s amnesty-for-truth trade, the Interna-
tional Criminal Court’s (ICC) prosecutions, and Morocco’s collective reparations.
In addition, Africa is a central arena for clashes between tradition and modernity,
culture and rights, state law and customary law,9 and the local and the global.
Furthermore, customary law plays an important role in much of Africa due to the
historical weakness of state institutions.
This chapter examines how local norms and practices are used for transitional
justice. It does not look at the broader issue of how international and national tran-
sitional justice processes play out in local spaces.10 Nor does it address parallel
efforts to engage with customary law to promote access to justice, legal empow-
erment, peacebuilding, and the rule of law.11 This chapter begins by defining key
terms. Next, it presents a brief historical overview of the thinking and practice of
local transitional justice. The chapter then continues by looking at the aims, con-
troversies, and positions around the use of local justice – topics also highlighted
in the case studies of Rwanda and Uganda.

8.2 Definitions
Several concepts are helpful for understanding local transitional justice: the local,
legal pluralism, customary law, healing rituals, and everyday justice. The local is
commonly seen as the sub-national level, existing below the national and interna-
tional levels. This is problematic in two ways. It presumes a normative hierarchy
where the local is viewed as residual, marginal, or traditional. It also suggests
there are clear boundaries that separate local and global processes. Instead, it is
better to conceptualise the local as a specific site of constant and mutually con-
stitutive ‘frictional engagement’ between local and global norms and processes.12

9 See the definition of customary law at p. 172.

10 See, eg, Anne Macdonald, Local Understandings and Experiences of Transitional Justice: A
Review of the Evidence (LSE, 2013).
11 See, eg, Erica Harper (ed), Working with Customary Justice Systems: Post-Conflict and Fragile
States (IDLO, 2011); Deborah Isser (ed), Customary Justice and the Rule of Law in War-Torn
Societies (United States Institute of Peace, 2011).
12 Rosalind Shaw and Lars Waldorf, ‘Introduction’ in Shaw and Waldorf, n 1, 5, 6–7. For a problem-
atic reconceptualization of the ‘local as survivor-centered’, see Hollie Nyseth Brehm and Shannon
Golden, ‘Centering Survivors in Local Transitional Justice’ (2017) 13 Annual Review of Law and
Social Science 101.
172 LARS WALDORF

Legal pluralism is ‘a situation in which two or more legal systems coexist in

the same social field’.13 Legal pluralism exists throughout the world. In England,
for example, marriage and divorce (‘the same social field’) are regulated, not only
by English law, but also by Christian, Muslim, Jewish, and Hindu law for religious
believers. Legal pluralism is more pronounced in those parts of the Global South
where colonial regimes imposed their law on top of or alongside pre-colonial
legal orders. As a result, many post-conflict states have both formal state law and
various forms of informal customary law.14 People will frequently ‘forum-shop’
among these different legal orders to try gaining better outcomes.
Customary law is not a cohesive, stable body of fixed rules, but rather a set
of flexible and adaptive norms and practices for resolving disputes and remedying
harms.15 This enables local elites (such as community elders and tribal chiefs) to
apply customary law in a discretionary manner to achieve case-specific, medi-
ated outcomes. Customary law frequently (though not always) privileges group
responsibility over individual accountability, restorative over retributive justice,
and mediated over adjudicated solutions – all in the interests of restoring com-
munity ‘harmony’. Such harmony, though, is often coerced and serves elite inter-
ests. With customary law, there is also no legalistic separation between law and
politics or positivistic separation between law and morality. There is a common
tendency to romanticise and essentialise customary law as ‘indigenous’ and ‘tra-
ditional’ even though it was partly fashioned by colonial authorities and further
re-fashioned by post-colonial regimes.16
States usually attempt to regulate customary law in one of three ways: aboli-
tion, recognition, or (partial or full) incorporation.17 Regardless of state efforts,
most people in the world rely on customary law because it is more accessible,
affordable, expeditious, and familiar than state law. Furthermore, many peo-
ple (especially the poor and marginalised) associate state law with repression,
inequality, and corruption. That said, customary law also suffers from numer-
ous flaws, including elite capture, corruption, and human rights violations

13 Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 870.
14 The relationship between formal and informal law may be combative, competitive, cooperative, or
complementary. Geoffrey Swenson, ‘Legal Pluralism in Theory and Practice’ (2018) 20 Interna-
tional Studies Review 438, 442–446.
15 Customary law typically does not distinguish between crimes and torts.
16 It is important to recognise that there are different and often competing versions of customary law:
‘codified customary law, judicial customary law, textbook customary law, and living customary
law’: Janine Ubink and Benjamin van Rooji, ‘Towards Customary Legal Empowerment: An Intro-
duction’ in Janine Ubink (ed), Customary Justice: Perspectives on Legal Empowerment (IDLO,
2011) 10.
17 See Swenson, n 14, 446–448.
 LOCAL TRANSITIONAL JUSTICE 173

(particularly gender discrimination, unfair trials, and cruel, inhuman, and degrad-
ing punishments).
Customary law grabbed the attention of transitional justice stakeholders in a
way that other local justice initiatives, like spirit healers and community memory
projects, did not. Customary law was seen as emblematic of the local, while still
being recognisably law-like (that is, it consists of rule-based mediation and is
sometimes codified). It was also viewed as providing both accountability and rec-
onciliation through an emphasis on restorative justice.18
Healing rituals are performances to purify polluted bodies and placate bad
spirits so that those who have disrupted the social order can rejoin their families,
clans, and communities.19 The performances, often led by traditional healers and
traditional elites (such as chiefs or clan elders), can take place privately in the
home or publicly in the community.
Everyday justice is all about how ordinary people avoid, negotiate, and
resolve the myriad disputes that form part of everyday life. Put differently, it is
how people produce justice in everyday life, drawing on their understandings of
state law, customary law, spiritual practices, and normative beliefs.20 Everyday
justice often departs from the standard tropes of transitional justice; for example,
it is more likely to comprise ‘social forgetting’ than individual truth-telling.21

8.3 Historical overview

Between 2002 and 2012, there was a surge of enthusiasm for adding local jus-
tice to the globalised transitional justice ‘tool kit’. This seems ‘paradoxical’ as it
coincided with the expansion of international criminal law, especially through the
ICC.22 In fact, they are both ‘part of the same process in that they seek forms of

18 Restorative justice is meant to ‘restore’ relations among victims, perpetrators, and their com-
munities through inclusive and participatory processes (such as victim-offender mediations) and
through less punitive and more reparatory outcomes (such as apologies and community service
orders). See, eg, Chris Cunneen and Carolyn Hoyle, Debating Restorative Justice (Hart, 2010);
Dennis Sullivan and Larry Tifft (eds), Handbook of Restorative Justice: A Global Perspective
(Routledge, 2005).
19 See, eg, Erin Baines, ‘Spirits and Social Reconstruction after Mass Violence’ (2010) 109 African
Affairs 409.
20 See, eg, Austin Sarat and Thomas R Kearns, ‘Beyond the Great Divide: Forms of Legal Scholar-
ship and Everyday Life’ in Austin Sarat and Thomas R Kearns (eds), Law in Everyday Life (Uni-
versity of Michigan Press, 1995) 21–62. It can be difficult to distinguish everyday justice from
everyday life more generally.
21 Rosalind Shaw, ‘Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone’
(United States Institute of Peace, 2005).
22 Allen and Macdonald, n 3, 1.
174 LARS WALDORF

viable justice that are less directly connected with the formal authority of sover-
eign states – authority which may be very partial and compromised in politically
fragile post-conflict circumstances’.23 In addition, the increased use of local jus-
tice was a direct response to international criminal justice’s expansion: gacaca
was partly presented as an alternative to the UN’s International Criminal Tribunal
for Rwanda (ICTR or Rwanda Tribunal) while mato oput partly expressed resis-
tance to the ICC prosecutions in Uganda.
Transitional justice advocates first took notice of local transitional justice
in post-conflict states that had no formal accountability mechanisms. In her
influential 2001 book on truth commissions, Priscilla Hayner devoted several
pages to an ‘alternative means of confronting the past’ in Mozambique.24 She
described how traditional healers (curandeiros) performed cleansing rituals to
reintegrate returning soldiers and rebels back into their communities after the
peace agreement and general amnesty of 1992. In one region, however, this did
not prevent a subsequent outbreak of unfamiliar magamba spirits (the spirits of
male fighters killed in the civil war) from afflicting women. In response, new
spirit healers emerged who would call on the magamba publicly to accuse their
killers and demand reparation. The resulting accusations cause fierce disputes
and the spirit healer then plays the role of mediator and judge. This creates
local, shared spaces for talking about a past that has been officially ignored
under the amnesty law.25
In other places, local justice was used to complement and legitimise national
truth commissions. Sierra Leone’s Truth and Reconciliation Commission was
authorised to ‘seek assistance from traditional and religious leaders to facilitate
its public sessions and in resolving local conflicts arising from past violations
or abuses or in support of healing and reconciliation’.26 Traditional leaders par-
ticipated in some district hearings outside Freetown, while several closing cer-
emonies involved reconstructed reconciliation rituals. However, that commission
largely avoided local rituals of swearing, cleansing, and purification, which may
have limited its ability to induce confessions and effect reconciliation.27 In its final

23 Ibid.
24 Priscilla B Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (Routledge, 2001)
186–195.
25 Igreja and Dias-Lambranca, n 6, 73.
26 Truth and Reconciliation Commission Act 2000 (Sierra Leone) pt III.6.1, §7(2).
27 Tim Kelsall, ‘Truth, Lies, Ritual: Preliminary Reflections on the Truth and Reconciliation Com-
mission in Sierra Leone’ (2005) 27 Human Rights Quarterly 385. For a discussion of the local
rituals used outside the Truth and Reconciliation Commission to reintegrate ex-combatants and
victims, see Augustine SJ Park, ‘Community-based Restorative Transitional Justice in Sierra
Leone’ (2010) 13 Contemporary Justice Review, 95, 108–112.
 LOCAL TRANSITIONAL JUSTICE 175

report, the commission acknowledged that ‘it has not felt entirely comfortable
relying on traditional structures to help foster reconciliation’ given the chiefs’
‘failure to explain the role they played during the war.’28
East Timor’s Truth and Reconciliation Commission incorporated more local
justice into its workings. Nearly three-quarters of its community reconciliation
hearings involved adaptations of a local dispute resolution practice (nahe biti
boot). Hearings often began with customary incantations and ended with recon-
ciliation ceremonies that entailed chewing betel nut, sacrificing small animals,
and celebratory feasting. Local ritual leaders frequently participated in the hear-
ings and ceremonies. These appear to have been fairly effective as a vehicle for
local reintegration.29
Local justice was subsequently touted not as a component of truth commis-
sions but as a transitional justice mechanism in its own right. The two mecha-
nisms that attracted the most attention were Uganda’s mato oput and Rwanda’s
gacaca courts (see discussion at pp. 180–184). Both cases highlight how states
can control or capture local transitional justice. Since the advent of peace in north-
ern Uganda in 2008 and the completion of Rwanda’s gacaca in 2012, there have
not been any high-profile efforts at local transitional justice. Despite Rwanda’s
example, neighboring Burundi has rejected using its version of traditional gacaca
(the Bushingantahe) for transitional justice.30 Liberia has been very slow to imple-
ment the truth commission’s 2009 recommendation for expanding the role of
Palava Huts to encourage truth-telling and reconciliation in war-affected com-
munities.31 Somalia has only taken preliminary steps towards using customary
law to reintegrate former Al-Shabaab combatants into local communities.32 Nev-
ertheless, local transitional justice will persist, given that atrocity crimes occur
disproportionately in parts of the Global South where domestic criminal justice
lacks capacity and customary law retains a great deal of sway.

28 Sierra Leone Truth and Reconciliation Commission, Witness to Truth: Report of the Sierra Leone
Truth and Reconciliation Commission (2004) vol 3B, 438.
29 Commission for Reception, Truth and Reconciliation in East Timor, Chega! [Enough!]: Final
Report (2006) pt 9, 7, 18, 23–24, 27.
30 Bert Ingelaere and Dominik Kohlhagen, ‘Situating Social Imaginaries in Transitional Justice: The
Bushingantahe in Burundi’ (2012) 6 International Journal of Transitional Justice 46.
31 Kwaku Danso, ‘Mending Broken Relations after Civil War: The “Palava Hut” and the Prospects
for Lasting Peace in Liberia’ (Kofi Annan International Peacekeeping Training Centre, 2016).
32 Janine Ubink and Anna Rea, ‘Community Justice or Ethnojustice? Engaging with Customary
Mechanisms to Reintegrate Ex-Combatants in Somalia’ (2017) 11 International Journal of Tran-
sitional Justice 276.
176 LARS WALDORF

The UN’s evolving position

In his 2004 report on the rule of law and transitional justice, UN Secretary-General
Kofi Annan gave qualified support to local justice:

due regard must be given to indigenous and informal traditions for administering
justice or settling disputes, to help them to continue their often vital role and to do
so in conformity with both international standards and local tradition. Where these are
ignored or overridden, the result can be the exclusion of large sectors of society
from accessible justice.33

Unfortunately, this report did not provide any guidance on how the UN should
interact with local justice that violates international human rights standards –
as most does. Furthermore, the trade-off is not so much between international
standards and local traditions but rather between different international human
rights: the rights to non-discrimination and fair trial versus the right of access
to justice.
By 2011, UN thinking had shifted somewhat. That year, UN Secretary-
General Ban Ki-moon took a less absolutist human rights stance in his own report
on the rule of law and transitional justice:

In many post-conflict settings, informal justice mechanisms are the only available
recourse to serve the public’s justice needs. […] the [UN] is aware of their uneven
compliance with international norms and standards, and pervasive gender bias.
The United Nations assists in building linkages between informal and formal sys-
tems, for example in Liberia, Nepal, Somalia, and Timor-Leste.34

Elsewhere, the report mentioned that ‘close engagement with informal justice lead-
ers’ (among other interventions) ‘has led to significant increases in convictions for
violent crimes, including sexual and gender-based violence’.35 In late 2012, three
UN agencies (UNDP, UNICEF, and UN Women) published a ground-breaking

33 UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict
Societies: Report of the Secretary General, UN Doc S/2004/616 (23 August 2004) ¶36 (emphasis
added). Although this has been interpreted as a partial endorsement of local transitional justice, the
Secretary-General was writing here about access to justice within national justice systems.
34 UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict
Societies, UN Doc S/2011/634 (12 October 2011) ¶39.
35 Ibid ¶37. That said, the UN Secretary General soon reverted to insisting that local justice must
meet international human rights standards: UN General Assembly, Delivering Justice: Programme
of Action to Strengthen the Rule of Law at the National and International Levels: Report of the
Secretary General, UN Doc A/66/749 (16 March 2012) ¶23.
 LOCAL TRANSITIONAL JUSTICE 177

report on engaging with ‘informal justice systems’.36 The report noted that state
justice systems may actually be less compliant with human rights standards than
local justice, particularly when it comes to excessive (and frequently inhumane)
pre-trial detention and lack of remedies.37 It then pointed out that the

lack of human rights compliance by [local justice] is no reason in itself for devel-
opment agencies not to work with [local justice], any more than it is reason not to
work with a failing formal justice system. A key consideration is whether engaging
with [local justice] will strengthen the protection of human rights, which will nec-
essarily be a gradual process of change.38

The report advises international actors to take a broad, rights-based approach –

rather than a narrow, legalistic one – by considering whether interventions will
‘enhance participation, accountability, and empowerment, whether they are
grounded in human rights standards, and whether they increase protection of the
most vulnerable groups’.39 It is unclear whether this report has shaped UN policy
and practice on using local justice for transitional justice.

8.4 Aims of local transitional justice

The goals of transitional justice keep multiplying and so become ever more diffi-
cult to achieve. Initially, transitional justice was a narrow, legalistic, and pragmatic
intervention to aid democratic transitions. Today, it is called upon to end impunity,
(re)establish the rule of law, improve human rights, strengthen democracy, halt mass
atrocities, promote reconciliation, and transform unjust socio-economic structures.
The aims of local justice are far more modest: it seeks to restore social order
by reconciling parties and placating spirits. Local justice is ill suited to serving
transitional justice’s broadened goals. It is not concerned with individual account-
ability, the sine qua non of ending impunity. Local justice is often viewed as anti-
thetical to the rule of law, human rights, and democracy because it is frequently
unpredictable, discriminatory, illiberal, and elite-driven. Unlike international
criminal justice, it was never meant to deal with, let alone deter, mass atrocities.

36 Danish Institute for Human Rights, Informal Justice Systems: Charting a Course for Human Rights-
Based Engagement (2012). The report covered not only customary law but also religious authorities,
local administrators, state-regulated customary courts, and community mediation. It also contained
case studies from six countries, two of which are post-conflict (Papua New Guinea and Uganda).
37 Ibid 42, 43.
38 Ibid 97. Such a pragmatic approach had been rejected by other human rights organisations. See
International Council on Human Rights Policy, When Legal Worlds Overlap: Human Rights, State
and Non-State Law (2009) ix–x, 124.
39 Danish Institute for Human Rights, n 36, 141.
178 LARS WALDORF

Local justice is often used by older, male elites to perpetuate their social and
economic status within communities. So, the only meaningful overlap in goals
is reconciliation, though local justice emphasises intra- or inter-community rec-
onciliation whereas transitional justice sets its sights on national reconciliation.40
Local justice can serve transitional justice in multiple ways. It can function
as a stop-gap measure until formal mechanisms are established. It can imbue
national truth commissions with local legitimacy. It can supplement tribunals and
truth commissions, filling the ‘impunity gap’ left when those mechanisms reach
their limits. Or it can be a full-fledged mechanism in its own right: a potentially
more credible and efficient way to satisfy victims, reintegrate perpetrators, and
repair communities.
Local justice offers several possible advantages as transitional justice.
First, it may have greater authority, legitimacy, and capacity than national jus-
tice systems and internationalised mechanisms. Second, it may be more respon-
sive to local needs. Third, it may be able to handle the lower-level perpetrators
whose crimes do not warrant exemplary prosecutions or hearings by resource-
strapped tribunals and truth commissions. Fourth, it might make it more likely
that victims get some measure of reparation (particularly restitution, apologies,
and psycho-social rehabilitation). Fifth, local justice may be better at grasping
the complexities of local violence and addressing the embodied and spiritual
consequences. Finally, it may empower local communities vis-à-vis state struc-
tures that only recently were used to commit gross human rights violations.
That said, there are serious and unresolved issues with using local justice for
transitional justice. For one thing, local justice depends heavily on social capi-
tal, which is badly frayed by civil war and mass atrocities. For another, it may
reconstitute the very structures of subordination and exclusion that contributed
to the conflict.41 Furthermore, in places like Uganda and Somalia, where differ-
ent groups practice different customary law, it may wind up reinforcing ethnic/
clan divisions.42

40 By contrast, Luc Huyse contends there is considerable overlap in the goals of traditional con-
flict-resolution and transitional justice: Luc Huyse, ‘Introduction: Tradition-Based Approaches
in Peacemaking, Transitional Justice and Reconciliation Policies’ in Huyse and Salter, n 6,
10–13.
41 Sierra Leone’s rebel forces, for example, were largely composed of youth who had been margin-
alised by the traditional power structures. See Sierra Leone Truth and Reconciliation Commission,
n 28, vol 3B, 343–360. At times, the Sierra Leone Commission’s reconciliation ceremonies ‘ritual-
ised ex-combatants’ submission to chiefs, district officers, and religious leaders’: Rosalind Shaw,
‘Linking Justice with Reintegration? Ex-Combatants and the Sierra Leone Experiment’ in Shaw
and Waldorf, n 1, 130.
42 Ubink and Rea, n 32.
 LOCAL TRANSITIONAL JUSTICE 179

8.5 Controversy
There are two major controversies surrounding the use of local justice as transi-
tional justice. The first concerns the stretching of local justice to deal with unfa-
miliar crimes (such as mass rape and genocide) and extraordinary situations (such
as civil wars) that it was never meant to handle. Such re-purposing (usually by
civil society organizations, state actors, and international donors) inevitably trans-
forms local justice into something new, which may no longer command authority
or legitimacy. Two scholars ask whether it really matters if local justice is rein-
vented, especially if these practices prove helpful:

Probably it does. The problem with codifying selected local practice […] is that it
takes them out of the contexts in which they have been used and adapted flexibly
to specific circumstances, and it reifies them. If they are categorised and institu-
tionalised into semi-formal judicial systems they will inevitably be very different to
what they were to start with. They will lose their flexibility and will no longer have
the many resonances and associations of lived ritual actions. But crucially, they will
have a status that is at least partly based on their externally supported authority.
They will become privileged rites and most likely the preserve of certain figures of
male authority recognised by the international community or by the government.43

Other scholars are less perturbed by the codification and privileging of certain
rites. They point out that local justice is always evolving and always partly shaped
by elite interests. They also take a more functionalist approach to local transi-
tional justice, placing the emphasis more on what works.44
The second controversy is whether it matters that local transitional justice
violates international human rights norms. Human rights organisations have
been critical of local justice for failing to respect due process, equality, and non-
discrimination. According to one legal scholar, such concerns are over-stated.
He contends that fair trial rights ‘may well be irrelevant to procedures in tra-
ditional courts’: ‘If the principal aim of a hearing is to reconcile the parties, the
human rights guarantees – which are aimed at protecting an accused against harsh
penalties – become redundant’. While acknowledging that traditional courts
discriminate against women and children, he argues that this must be balanced
against other important rights – those guaranteeing access to justice and culture.45

43 Allen and Macdonald, n 3, 19.

44 See, eg, Sverker Finnström, ‘Reconciliation Grown Bitter? War, Retribution, and Ritual Action in
Northern Uganda’ in Shaw and Waldorf, n 1, 147–148.
45 Tom Bennett, ‘Access to Justice and Human Rights in the Traditional Courts of Sub-Saharan
Africa’ in Tom Bennett et al (eds), African Perspectives on Tradition and Justice (Intersentia,
2012) 22, 31, 32.
180 LARS WALDORF

Other scholars note the way that local transitional justice can be, and has been,
made more inclusive and equal, although this remains the exception.46

Case study A: Rwanda

The 1994 Rwandan genocide was not an atavistic outbreak of tribal violence
between the Hutu majority and Tutsi minority. Rather, it was a deliberate attempt
by Hutu extremists to undo a negotiated peace agreement that awarded a large
share of political and military power to a Tutsi rebel movement following a four-
year civil war. That explains why extremists started by killing Hutu supporters of
the peace agreement and ten UN peacekeepers. When the international commu-
nity then evacuated most UN peacekeepers and foreign nationals, the extremists
took that as a green light to accelerate their extermination campaign. Fewer than
four months later, the Tutsi rebels defeated the Hutu extremists and formed a
new government. But, by then, approximately 75 percent of the Tutsi population
(at least half a million people) had been slaughtered.
Having won a military victory, the now Tutsi-led government rejected a
South African-style truth commission and insisted that only maximal prosecu-
tions could end impunity and produce reconciliation. The regime put thousands
on trial in national courts for ordinary crimes (murder, rape, assault, and theft)
committed during the genocide, but, by 2001, there were over 100,000 suspects
languishing in pre-trial detention. To speed up trials, it created some 12,000
community courts staffed by more than 250,000 lay judges. It named this transi-
tional justice mechanism inkiko gacaca (gacaca courts) after the customary dis-
pute resolution mechanism (gacaca). The courts were launched in 2002, but most
did not start functioning until 2005. Their hearings unleashed a flood of accu-
sations and confessions. By the time the courts closed in 2012, they had tried
a staggering 1.8 million cases involving over a million suspects. Two-thirds of
those cases concerned theft only. The courts handed down punishments ranging
from restitution awards (for theft) to life sentences (for rape).
Gacaca was widely celebrated as a homegrown alternative to the UN’s costly
Rwanda Tribunal, which managed to try only 70 alleged génocidaires between
1996 and 2014. Gacaca was also commonly seen as the world’s most ambitious
scaling up of customary law for transitional justice. However, there is consider-
able debate over whether gacaca courts reflected tradition, invented tradition, or
hybridity. This is linked to a further argument over whether gacaca can be char-
acterised as restorative or retributive justice.47 These debates are complicated

46 Allen and Macdonald, n 3, 15.

47 For example, Clark argues that gacaca exemplifies hybridity: both ‘a modern-traditional institu-
tion’ and a mix of ‘retributive and restorative functions’: Phil Clark, The Gacaca Courts, Post-
Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers (Cambridge University
Press, 2010) 48, 249. By contrast, Waldorf sees gacaca as modern and mostly retributive: Lars
Waldorf, ‘“Like Jews Waiting for Jesus”: Posthumous Justice in Post-Genocide Rwanda’ in Shaw
and Waldorf, n 1.
 LOCAL TRANSITIONAL JUSTICE 181

by the fact that very little is known about gacaca during pre-colonial and colonial
times.
Most non-governmental organisations (NGOs) and scholars that observed
gacaca courts in action were critical of how they operated.48 First, the courts
frequently violated not only international standards but also Rwandan law gov-
erning fair trials. Second, gacaca constituted ‘victor’s justice’ as courts had no
jurisdiction over crimes committed by the Tutsi rebels. Third, and relatedly,
gacaca imposed collective guilt on the Hutu majority by virtue of the fact that
nearly all 1 million suspects were Hutu. Fourth, many Tutsi genocide sur-
vivors did not receive the restitution or compensation that gacaca had prom-
ised. Finally, gacaca did not promote reconciliation, at least in the short term.
A government-commissioned, nation-wide survey found 76 percent of genocide
survivors and 71 percent of prisoners saying that gacaca aggravated tensions
between families.49
One academic insisted that gacaca created space for dialogic truth and
hence reconciliation.50 That ignored how the government had to coerce people
just to show up to gacaca and how many kept silent once there. It also dis-
counted the cultural and political constraints on public truth-telling in post-
genocide Rwanda. As the researchers behind a National University of Rwanda
survey found:

the decision of potential witnesses and confessors to avoid testifying as a

result of [personal] security concerns likely frustrated the production of
both factual and dialogical truth. Further, the meaningful discussion and
debate required to achieve dialogical truth is incompatible with silence
among pertinent voices, such as prosecution and defense witnesses, the
accused and victims of sexual violence.51

Overall, then, it does not appear that gacaca produced truth, justice, or recon-
ciliation in many communities. It did, however, enable the Rwandan govern-
ment to try an extraordinary number of low-level perpetrators in a very short
period of time.

48 See, eg, Anuradha Chakravarty, Investing in Authoritarian Rule: Punishment and Patronage in
Rwanda’s Gacaca Courts for Genocide Crimes (Cambridge University Press, 2016); Kristen
Connor Doughty, Remediation in Rwanda: Grassroots Legal Forums (University of Pennsyl-
vania Press, 2016); Bert Ingelaere, Inside Rwanda’s Gacaca Courts (University of Wisconsin
Press, 2016); Penal Reform International, Eight Years On […] A Record of Gacaca Monitoring
in Rwanda (2010); Human Rights Watch, Justice Compromised: The Legacy of Rwanda’s Com-
munity-Based Gacaca Courts (2011); Max Rettig, ‘Gacaca: Truth, Justice and Reconciliation in
Postconflict Rwanda?’ (2008) 51 African Studies Review 25; Waldorf, ‘Mass Justice’, n 1.
49 National Unity and Reconciliation Commission, Social Cohesion in Rwanda: An Opinion Survey,
Results 2005–2007 (2008) 3.
50 Clark, n 47.
51 Joanna Pozen, Richard Neugebauery, and Joseph Ntaganira, ‘Assessing the Rwanda Experiment:
Popular Perceptions of Gacaca in Its Final Phase’ (2014) 8 International Journal of Transitional
Justice 49.
182 LARS WALDORF

Case study B: Northern Uganda

Northern Uganda, particularly Acholiland, was the site of a vicious civil war
between 1985 and 2008. Although Joseph Kony and his rebel movement, the
Lord’s Resistance Army (LRA), battled the central government in the name of
the Acholi ethnic group, they quickly turned on their own community. Well before
the ‘Kony 2012’ campaign went viral, the LRA had achieved worldwide notoriety
for abducting an estimated 30,000 children and turning them into child soldiers
and sex slaves. The LRA’s brutality often obscured the Ugandan military’s war
crimes and crimes against humanity against Acholi civilians.
Uganda’s government employed various half-hearted and contradictory
strategies to end the war. In 2000, it enacted an amnesty law for LRA rebels who
surrendered. In 2002, it launched Operation Iron Fist against LRA bases in south-
ern Sudan, which caused the LRA to reinvade northern Uganda. The government
also struck a deal with the ICC prosecutor that eventually resulted in the court
issuing its first arrest warrants against the LRA leadership in 2005. When military
operations and international warrants failed to capture Kony, the government went
back to the negotiating table in 2006. The Ugandan president suggested granting
amnesty to Kony, which prompted the ICC to remind Uganda of its legal duty to act
on the arrest warrants. The peace negotiations dragged on for two years but fell
apart in 2008. Before that happened, however, the government and LRA agreed
to a novel combination of ‘traditional justice’ and national accountability, which
both sides hoped would force the ICC to back off. For, under the ICC’s doctrine
of complementarity, the court cannot pursue prosecutions where national states
prove willing and able to do so. The preliminary agreement read in part:

Traditional justice mechanisms, such as Culo Kwor, Mato Oput, Kayo

Cuk, Ailuc and Tonu ci Koka and others as practiced in the communities
affected by the conflict, shall be promoted, with necessary modifications,
as a central part of the framework for accountability and reconciliation.52

The collapse of the peace negotiations left unanswered whether Acholi local jus-
tice would have been considered sufficient evidence of Uganda’s willingness and
ability to prosecute under the ICC statute.
From 2003 to 2008, Uganda was the scene of an unprecedented clash
between local transitional justice and international criminal justice, as various
Acholi elites, religious organisations, local and international NGOs, and academ-
ics attacked the ICC’s intervention for undercutting Acholi reconciliation ceremo-
nies and thereby jeopardising peace efforts. ICC advocates responded in two ways.
Human rights organisations, such as Amnesty International, criticised ‘traditional’
justice for promoting impunity and violating international human rights norms.53

52 Agreement on Accountability and Reconciliation between the Government of the Republic of

Uganda and the Lord’s Resistance Army/Movement, Juba, Sudan (29 June 2007) art 3.1.
53 Amnesty International, Uganda: Government Cannot Prevent the International Criminal
Court From Investigating Crimes, 16 November 2004 <www.amnesty.nl/nieuwsportaal/pers/
government-cannot-prevent-international-criminal-court-investigating-crimes>.
 LOCAL TRANSITIONAL JUSTICE 183

Others, like the anthropologist Tim Allen, challenged the authenticity and efficacy
of these reconciliation ceremonies.54 These arguments centered on the mato oput
ceremony, in which the perpetrator’s clan and the victim’s clan both ‘drink the bit-
ter root’ to symbolise the swallowing of their bitterness and reconciliation.
For all the controversy over mato oput, it has been rarely, if ever, used to
reconcile the clans of former LRA fighters and their victims. This is because mato
oput is the culmination of a protracted mediation through which the perpetrator’s
clan expresses repentance and pays compensation to the victim’s clan.

Cultural leaders and elders are reluctant to request compensation from

former LRA perpetrators, believing that if this is done it may deter other
LRA combatants from returning. Worse, it may make the LRA doubt the
sincerity of the amnesty law and seek revenge on local leaders for fail-
ing to uphold the principle of forgiveness the amnesty appears to offer.55

Instead of mato oput, returning LRA rebels typically went through various ritual
cleansing ceremonies to cast off vengeful spirits of the dead. Some were group
ceremonies publicly organised by Acholi elites while others were done on an indi-
vidual basis with spiritual healers.
Putting aside the debate over authenticity, there were real concerns with
using mato oput or other practices to achieve accountability and reconcilia-
tion in northern Uganda. First, these rituals were not well understood or well
supported by many Acholi who had grown up in camps for internally displaced
persons. Second, these Acholi rituals were unlikely to be accepted or used by
other war-affected ethnic groups in northern Uganda.56 Third, the emphasis on
mato oput treated both the conflict and reconciliation as if they were intra-Acholi
affairs (that is, between the LRA and the Acholi community), ignoring the need
for accountability of the Ugandan military and for national political reconciliation
between the Acholi and the rest of the country. As one scholar states, ‘It seems
likely that the Ugandan government is interested in promoting Acholi traditional
justice precisely because traditional justice may guarantee state impunity’.57
(continued)

54 Tim Allen, ‘Bitter Roots: The “Invention” of Acholi Traditional Justice’ in Tim Allen and Koen
Vlassenroot (eds), The Lord’s Resistance Army: Myth and Reality (Zed Books, 2010) 242–261. For
a somewhat different perspective, see Finnström, n 44.
55 Erin K Baines, ‘The Haunting of Alice: Local Approaches to Justice and Reconciliation in North-
ern Uganda’ (2007) 1 International Journal of Transitional Justice 110. As Baines goes on to note,
‘It is therefore not only the ICC that is locally perceived as a spoiler of peace talks’: ibid.
56 In 1985, however, the ‘bending the spear’ (gomo tong) ritual was used to resolve tensions between
the Acholi and West Nile people. James Ojera Latigo, ‘Northern Uganda: Tradition-Based Prac-
tices in the Acholi Region’ in Huyse and Salter, n 6, 106–107.
57 Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (Oxford
University Press, 2011) 175. In fact, the preliminary agreement made clear that traditional justice
mechanisms would not be applied to state actors. Agreement on Accountability and Reconcilia-
tion, n 52, art. 4.1.
184 LARS WALDORF

(continued)

Since 2008, the debate between international retributive justice and local
restorative justice has mostly subsided.58 There are several reasons for this. For
one thing, the LRA was ousted from northern Uganda and peace has now taken
hold. For another, it has become less and less likely that the ICC will ever manage
to gain custody of Joseph Kony. Finally, the reworked Acholi rituals never became
widespread practices of accountability and reconciliation.

Not only did most local people doubt the efficacy of these public perfor-
mances, many were afraid that they might even backfire; namely, because
de-sacralising rituals risks incurring further spiritual affliction – a conse-
quence that would have an effect on the entire society.59

Still, the debate about whether the ICC arrest warrants promoted or hampered
peace in northern Uganda continues. A former ICC employee, who worked on the
LRA investigation, states that ‘the facts on the ground demonstrate that since
the ICC investigation began the security situation has improved dramatically, and
processes to achieve a negotiated settlement have increased’.60 But correlation is
not causation and other political events probably played a greater role.

8.6 Current positions

This section looks in turn at the relationships between local transitional justice
and the ICC, the state, and the community. Events in northern Uganda caused
some to worry that the ICC’s complementarity regime would push states to adopt
criminal trials to show they were willing and able to prosecute, and thereby pre-
clude the ICC from exercising jurisdiction. The concern is that such ‘legal mim-
icry’ of retributive criminal trials would crowd out local transitional justice.61 This
doesn’t seem to have happened. For example, the Ugandan government promised
to promote local transitional justice in its 2007 agreement with the LRA.

58 The capture of LRA commander Dominic Ongwen in 2015 only briefly revived that debate as
Uganda preferred an ICC trial and Ongwen’s leadership position made him a less sympathetic
candidate for customary proceedings. See Wairagala Waikabi, ‘Mixed Reactions in Uganda as
LRA is Transferred to the ICC’, International Justice Monitor, 21 January 2015 <www.ijmoni-
tor.org/2015/01/mixed-reactions-in-uganda-as-lra-commander-is-transferred-to-the-icc/>; Adam
Branch, “Dominic Ongwen on Trial: The ICC’s African Dilemmas” (2017) 11 International Jour-
nal of Transitional Justice 30.
59 Barbara Meier, ‘“Death Does Not Rot”: Transitional Justice and Local “Truths” in the Aftermath
of the War in Northern Uganda’ (2013) 2 Africa Spectrum 46.
60 Matthew Brubacher, ‘The ICC Investigation of the Lord’s Resistance Army: An Insider’s View’ in
Allen and Vlassenroot, n 54, 277.
61 See, eg, Mark A Drumbl, Atrocity, Punishment and International Law (Cambridge University
Press, 2007) 141–147.
 LOCAL TRANSITIONAL JUSTICE 185

States differ in their responses to local transitional justice. Mozambique’s

government was content to let the traditional healers and magamba spirit heal-
ers go about their work. By contrast, Timor-Leste encouraged customary dis-
pute resolution both inside and outside truth commission proceedings. Other
states seek to capture or control local justice, particularly as part of ‘the battle
of perceptions of wrongdoing’: ‘In both [the East Timor and Uganda] cases, a
preoccupation with local justice (unintentionally or otherwise) protects crimes
allegedly perpetrated by government officials and soldiers from scrutiny and
accountability.’62 The same is true of Rwanda, where the government used
gacaca to entrench impunity for its own war crimes while imposing collectiv-
ised guilt for the genocide on Hutu.
Local transitional justice shapes and is shaped by community dynamics. It
may encounter approval, appropriation, re-interpretation, resistance, or elite cap-
ture. It may also alter, displace, or integrate ongoing practices of everyday justice.
As such, the form and efficacy of local transitional justice will vary from one
locale to the next.

8.7 Conclusion
The big question, of course, is whether customary transitional justice actually
‘works’. Measuring the success of any transitional justice mechanism is compli-
cated by the different metrics applied and the limited availability of cross-national
data. A study that documented five African cases of local transitional justice (in
Burundi, Mozambique, Rwanda, Sierra Leone, and Uganda) concluded:

Do indigenous conflict resolution tools have an added value in times of transition?

The answer is a cautious ‘yes’. They are not sufficiently effective, and their legitimacy
locally and internationally is not assured. The case studies have, however, demon-
strated that tradition-based practices have the potential to produce a dividend in
terms of the much-needed post-conflict accountability, truth-telling and reconcilia-
tion that is not negligible. Consequently, positive effects may be expected with regard
to the more general transitional justice goals of healing and social repair.63

A later overview of customary transitional justice was more equivocal: ‘findings

remain rather vague, inconclusive and anecdotal’.64 This, however, is a criticism
that has been leveled against transitional justice more generally.65 That said, local

62 Allen and Macdonald, n 3, 10.

63 Luc Huyse, ‘Conclusions and Recommendations’ in Huyse and Salter, n 6, 192.
64 Allen and Macdonald, n 3, 17.
65 See, eg, Oskar NT Thoms, James Ron, and Roland Paris, ‘State-Level Effects of Transitional Jus-
tice: What Do We Know?’ (2010) 4 International Journal of Transitional Justice 329.
186 LARS WALDORF

transitional justice has proved helpful in several contexts with reintegrating ex-
combatants back into their communities.66
What seems clear is that local justice ‘cannot be harnessed to the transitional
justice agenda in a straightforward way’.67 Nevertheless, it is possible to identify
two key contextual factors that are likely to make such harnessing more or less
successful: the amount of social cohesion and local power dynamics in specific
communities. Overall, local transitional justice is more likely to have authority
and legitimacy if it is less (re)invented, less formal, and less captured (by local
elites, state officials, and international actors). As enthusiasm for gacaca and mato
oput has waned, there has been greater interest in social practices that renegotiate
the everyday.68 One early (though not uncritical) advocate of gacaca later cel-
ebrated everyday justice in Burundi:

Life goes on, and social and economic relationships are re-established; beer is
shared, as are benches in the church. This co-existence is a far cry from justice in
any international meaning of the term but it is recognisable and, to some extent,
desired, by people.69

There is a real danger that local transitional justice mechanisms – particularly

those embraced or even imposed by the state – may delay or disrupt the reestab-
lishment of everyday life.

8.8 Summary
Transitional justice has increasingly turned to the local since the early 2000s. Sev-
eral factors account for this. Practitioners and donors gradually realised that tran-
sitional justice ‘tools’ could not simply be transposed from one locale to another.
Scholars and practitioners were becoming disenchanted with the Western model
of retributive criminal trials, while donors balked at the expense of further interna-
tionalised criminal tribunals. In addition, stakeholders were looking for less state-
centric and more locally owned mechanisms. Finally, and more problematically,

66 Roger Duthie, ‘Local Justice and Reintegration Processes as Complements to Transitional Justice
and DDR’ in Ana Cutter Patel, Pablo de Greiff, and Lars Waldorf (eds), Disarming the Past: Tran-
sitional Justice and Ex-Combatants (SSRC, 2009) 228–260.
67 Allen and Macdonald, n 3, 21.
68 See Baines, ‘Spirits and Social Reconstruction after Mass Violence’, n 19; Lia Kent, ‘Local Mem-
ory Practices in East Timor: Disrupting Transitional Justice Narratives’ (2011) 5 International
Journal of Transitional Justice 434; Pilar Riaño Alcalá and Erin Baines, ‘Editorial’ (2012) 6 Inter-
national Journal of Transitional Justice 385.
69 Peter Uvin, Life after Violence: A People’s Story of Burundi (Zed Books, 2008) 169. For similar
findings, see Ingelaere and Kohlhagen, n 30, ‘52–54.
 LOCAL TRANSITIONAL JUSTICE 187

there was the lure of the local as some stakeholders were seduced by romanticised
conceptions of local community, customary law, and restorative justice.
Local transitional justice poses five main issues. First, it is not clear how
local justice can be re-purposed for transitional justice without losing its authority,
legitimacy, and efficacy. Second, there are serious concerns about using local jus-
tice, given how frequently it violates international human rights norms (especially
due process, equality, and non-discrimination). Third, some stakeholders worry
that local transitional justice can be crowded out by international and national
mechanisms or captured by state and local actors. Fourth, the use of (often eth-
nicized) customary law and (often elderly male) customary elites may reinforce
social, ethnic, and intergenerational cleavages. Finally, it remains unclear whether
local transitional justice actually ‘works’. All these issues are highlighted in the
case studies of Rwanda and especially Uganda.

8.9 Discussion and tutorial questions

1) Does it matter if local justice is taken out of context to deal with mass atrocity
crimes?
2) Should the UN support local transitional justice if it discriminates against
women?
3) How can local transitional justice avoid being captured or compromised by
state or local elites?
4) Should the ICC issue arrest warrants where a state has decided to forego
domestic prosecutions in favour of ‘traditional’ healing rituals?
5) ‘If victims’ agency is a crucial value, does it not follow that victims should
be able to opt out of these international norms [of accountability] if, say, in
their culture and immediate circumstances they would prefer to reintegrate
[perpetrators of atrocities] […] through a traditional ceremony of reconcilia-
tion than to prosecute them?’70

Suggested reading
Allen, Tim and Anna Macdonald, Post-Conflict Traditional Justice: A Critical Overview
(LSE, 2013) <http://eprints.lse.ac.uk/56357/1/JSRP_Paper3_Post-conflict_
traditional_justice_Allen_Macdonald_2013.pdf>.

70 Orentlicher, n 4, 19.
188 LARS WALDORF

Denney, Lisa and Pilar Domingo, ‘Local Transitional Justice: How Changes in
Conflict, Political Settlements, and Institutional Development Are Reshaping
the Field’ in Roger Duthie and Paul Seils (eds), Justice Mosaics: How Context
Shapes Transitional Justice in Fractured Societies (International Center for
Transitional Justice, 2017).
Ubink, Janine and Anna Rea, ‘Community Justice or Ethnojustice? Engaging with
Customary Mechanisms to Reintegrate Ex-Combatants in Somalia’ (2017) 11
International Journal of Transitional Justice 276.

Other resources
Fighting Spirits (Directed by Barbara Meier, Cluster of Excellence ‘Religion
and Politics’, University of Muenster, 2010) <www.cultureunplugged.com/
play/7988/Fighting-Spirits>: documentary film on cleansing ceremonies in
Acholiland.
My Neighbor, My Killer (Directed by Anne Aghion, Gacaca Productions, 2009) <www.
gacacafilms.com/>: documentary film on gacaca.
The Reckoning: The Battle for the International Criminal Court (Directed by Pamela
Yates, Skylight Pictures, 2009) <www.pbs.org/pov/reckoning/film_description.
php>: documentary film that covers the ICC in Northern Uganda.

Bibliography
Agreement on Accountability and Reconciliation between the Government of the
Republic of Uganda and the Lord’s Resistance Army/Movement, Juba, Sudan
(29 June 2007).
Allen, Tim, ‘Bitter Roots: The “Invention” of Acholi Traditional Justice’ in Tim Allen
and Koen Vlassenroot (eds), The Lord’s Resistance Army: Myth and Reality (Zed
Books, 2010) 242–261.
Allen, Tim and Anna Macdonald, Post-Conflict Traditional Justice: A Critical Overview
(LSE, 2013).
Amnesty International, Uganda: Government Cannot Prevent the International
Criminal Court from Investigating Crimes (16 November 2004) Amnesty Inter-
national <www.amnesty.nl/nieuwsportaal/pers/government-cannot-prevent-
international-criminal-court-investigating-crimes>.
Arriaza, Laura J and Naomi Roht-Arriaza, ‘Weaving a Braid of Histories: Local
Post-Armed Conflict Initiatives in Guatemala’ in Rosalind Shaw and Lars Wal-
dorf (eds), Localizing Transitional Justice: Interventions and Priorities after Mass
Violence (Stanford University Press, 2010).
Babo-Soares, Dionisio, ‘Nahe Biti: Grassroots Reconciliation in East Timor’ in Elin
Skaar, Siri Gloppen, and Astri Suhrke (eds), Roads to Reconciliation (Lexington
Books, 2005).
Baines, Erin K, ‘The Haunting of Alice: Local Approaches to Justice and Reconcilia-
tion in Northern Uganda’ (2007) 1 International Journal of Transitional Justice 110.
 LOCAL TRANSITIONAL JUSTICE 189

Baines, Erin K, ‘Spirits and Social Reconstruction after Mass Violence: Rethinking
Transitional Justice’ (2010) 109 African Affairs 409.
Bennett, Tom, ‘Access to Justice and Human Rights in the Traditional Courts of
Sub-Saharan Africa’ in Tom Bennett, Eva Brems, Giselle Corradi, Lia Nijzink,
and Martien Schotsmans (eds), African Perspectives on Tradition and Justice
(Intersentia, 2012).
Branch, Adam, Displacing Human Rights: War and Intervention in Northern Uganda
(Oxford University Press, 2011).
Branch, Adam, ‘Dominic Ongwen on Trial: The ICC’s African Dilemmas’ (2017) 11
International Journal of Transitional Justice 30.
Brehm, Hollie Nyseth and Shannon Golden, ‘Centering Survivors in Local Transi-
tional Justice’ (2017) 13 Annual Review of Law and Social Science 101.
Brubacher, Matthew, ‘The ICC Investigation of the Lord’s Resistance Army: An
Insider’s View’ in Tim Allen and Koen Vlassenroot (eds), The Lord’s Resistance
Army: Myth and Reality (Zed Books, 2010) 262–278.
Chakravarty, Anuradha, Investing in Authoritarian Rule: Punishment and Patronage in
Rwanda’s Gacaca Courts for Genocide Crimes (Cambridge University Press, 2016).
Clark, Phil, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda:
Justice Without Lawyers (Cambridge University Press, 2010).
Commission for Reception, Truth and Reconciliation in East Timor, Chega!
[Enough!]: Final Report (2006).
Cunneen, Chris and Carolyn Hoyle, Debating Restorative Justice (Hart, 2010).
Danish Institute for Human Rights, Informal Justice Systems: Charting a Course for
Human Rights-Based Engagement (2012).
Danso, Kwaku, Mending Broken Relations after Civil War: The “Palava Hut” and the
Prospects for Lasting Peace in Liberia (Kofi Annan International Peacekeeping
Training Centre, 2016).
Denney, Lisa and Pilar Domingo, ‘Local Transitional Justice: How Changes in
Conflict, Political Settlements, and Institutional Development Are Reshaping
the Field’ in Roger Duthie and Paul Seils (eds), Justice Mosaics: How Context
Shapes Transitional Justice in Fractured Societies (International Center for
Transitional Justice, 2017).
Doughty, Kristen Connor, Remediation in Rwanda: Grassroots Legal Forums (Univer-
sity of Pennsylvania Press, 2016).
Drumbl, Mark A, Atrocity, Punishment and International Law (Cambridge University
Press, 2007).
Duthie, Roger, ‘Local Justice and Reintegration Processes as Complements to
Transitional Justice and DDR’ in Ana Cutter Patel, Pablo de Greiff, and Lars
Waldorf (eds), Disarming the Past: Transitional Justice and Ex-Combatants
(SSRC, 2009) 228–260.
Finnström, Sverker, ‘Reconciliation Grown Bitter? War, Retribution, and Ritual
Action in Northern Uganda’ in Rosalind Shaw and Lars Waldorf (eds), Local-
izing Transitional Justice: Interventions and Priorities after Mass Violence (Stan-
ford University Press, 2010) 135–154.
190 LARS WALDORF

Fletcher, Laurel E and Harvey M Weinstein, ‘Transitional Justice and the “Plight” of
Victimhood’ in Cheryl Lawther, Luke Moffett, and Dov Jacobs (eds), Research
Handbook on Transitional Justice (Edward Elgar, 2017).
Harper, Erica (ed), Working with Customary Justice Systems: Post-Conflict and Frag-
ile States (IDLO, 2011).
Hayner, Priscilla B, Unspeakable Truths: Confronting State Terror and Atrocity (Rout-
ledge, 2001).
Hinton, Alex (ed), Transitional Justice: Global Mechanisms and Local Realities after
Genocide and Mass Violence (Rutgers University Press, 2010)
Human Rights Watch, Justice Compromised: The Legacy of Rwanda’s Community-
Based Gacaca Courts (2011).
Huyse, Luc, ‘Conclusions and Recommendations’ in Luc Huyse and Mark Salter
(eds), Traditional Justice and Reconciliation after Violent Conflict: Learning from
African Experiences (IDEA, 2008) 181–198.
Igreja, Victor and Beatrice Dias-Lambranca, ‘Restorative Justice and the Role of
Magamba Spirits in Post-Civil War Gorongosa, Central Mozambique’ in Luc
Huyse and Mark Salter (eds), Traditional Justice and Reconciliation after Violent
Conflict: Learning from African Experiences (IDEA, 2008) 61–84.
Ingelaere, Bert, Inside Rwanda’s Gacaca Courts (University of Wisconsin Press,
2016).
Ingelaere, Bert and Dominik Kohlhagen, ‘Situating Social Imaginaries in Transi-
tional Justice: The Bushingantahe in Burundi’ (2012) 6 International Journal of
Transitional Justice 46.
International Council on Human Rights Policy, When Legal Worlds Overlap: Human
Rights, State and Non-State Law (2009).
Isser, Deborah (ed), Customary Justice and the Rule of Law in War-Torn Societies
(United States Institute of Peace, 2011).
Kelsall, Tim, ‘Truth, Lies, Ritual: Preliminary Reflections on the Truth and Recon-
ciliation Commission in Sierra Leone’ (2005) 27 Human Rights Quarterly 385.
Kent, Lia, ‘Local Memory Practices in East Timor: Disrupting Transitional Justice
Narratives’ (2011) 5 International Journal of Transitional Justice 434.
Kochanski, Adam, ‘The “Local Turn” in Transitional Justice: Curb the Enthusiasm’
(2018) 22 International Studies Review 26.
Latigo, James Ojera, ‘Northern Uganda: Tradition-Based Practices in the Acholi
Region’ in Luc Huyse and Mark Salter (eds), Traditional Justice and Recon-
ciliation after Violent Conflict: Learning from African Experiences (IDEA, 2008)
85–122.
Macdonald, Anne, Local Understandings and Experiences of Transitional Justice: A
Review of the Evidence (LSE, 2013).
MacGinty, Roger and Oliver Richmond, ‘The Local Turn in Peacebuilding: A Critical
Agenda for Peace’ (2013) 34 Third World Quarterly 763.
Meier, Barbara, ‘“Death Does Not Rot”: Transitional Justice and Local “Truths” in
the Aftermath of the War in Northern Uganda’ (2013) 2 Africa Spectrum 46.
Merry, Sally Engle, ‘Legal Pluralism’ (1988) 22 Law & Society Review 870.
 LOCAL TRANSITIONAL JUSTICE 191

National Unity and Reconciliation Commission, Social Cohesion in Rwanda: An Opin-

ion Survey, Results 2005–2007 (2008).
Orentlicher, Diane F, ‘“Settling Accounts” Revisited: Reconciling Global Norms with
Local Agency’ (2007) 1 International Journal of Transitional Justice 10.
Paffenholz, Thania, ‘Unpacking the Local Turn in Peacebuilding: A Critical
Assessment towards an Agenda for Future Research’ (2015) 36 Third World
Quarterly 857.
Park, Augustine SJ, ‘Community-based Restorative Transitional Justice in Sierra
Leone’ (2010) 13 Contemporary Justice Review 95–119.
Penal Reform International, Eight Years On […] A Record of Gacaca Monitoring in
Rwanda (2010).
Pigou, Piers, Timor-Leste: The Community Reconciliation Process of the Commission
for Reception, Truth and Reconciliation (United Nations Development Program,
2004).
Pozen, Joanna, Richard Neugebauery and Joseph Ntaganira, ‘Assessing the
Rwanda Experiment: Popular Perceptions of Gacaca in Its Final Phase’ (2014)
8 International Journal of Transitional Justice 49.
Rettig, Max, ‘Gacaca: Truth, Justice and Reconciliation in Postconflict Rwanda?’
(2008) 51 African Studies Review 25.
Riaño Alcalá, Pilar and Erin Baines, ‘Editorial’ (2012) 6 International Journal of Tran-
sitional Justice 385.
Sarat, Austin and Thomas R Kearns, ‘Beyond the Great Divide: Forms of Legal
Scholarship and Everyday Life’ in Austin Sarat and Thomas R Kearns (eds),
Law in Everyday Life (University of Michigan Press, 1995).
Sharp, Dustin N, ‘Addressing Dilemmas of the Global and the Local in Transitional
Justice’ (2014) 29 Emory International Law Review 71.
Shaw, Rosalind, ‘Linking Justice with Reintegration? Ex-Combatants and the
Sierra Leone Experiment’ in Rosalind Shaw and Lars Waldorf (eds), Localizing
Transitional Justice: Interventions and Priorities after Mass Violence (Stanford
University Press, 2010) 111–134.
Shaw, Rosalind, Rethinking Truth and Reconciliation Commissions: Lessons from
Sierra Leone (United States Institute of Peace, 2005).
Shaw, Rosalind and Lars Waldorf, ‘Introduction’ in Rosalind Shaw and Lars Waldorf
with Pierre Hazan (eds), Localizing Transitional Justice: Interventions and Priori-
ties after Mass Violence (Stanford University Press, 2010) 3–26.
Sierra Leone Truth and Reconciliation Commission, Witness to Truth: Report of the
Sierra Leone Truth and Reconciliation Commission (2004).
Simon Robins, Simon, ‘Failing Victims? The Limits of Transitional Justice in
Addressing the Needs of Victims of Violations’ (2017) 11 Human Rights and
International Legal Discourse 41.
Sullivan, Dennis and Larry Tifft (eds), Handbook of Restorative Justice: A Global Per-
spective (Routledge, 2005).
Swenson, Geoffrey, ‘Legal Pluralism in Theory and Practice’ (2018) 20 International
Studies Review 438.
192 LARS WALDORF

Thoms, Oskar NT, James Ron, and Roland Paris, ‘State-Level Effects of Transi-
tional Justice: What Do We Know?’ (2010) 4 International Journal of Transitional
Justice 329.
Truth and Reconciliation Commission Act 2000 (Sierra Leone).
Ubink, Janine and Anna Rea, ‘Community Justice or Ethnojustice? Engaging with
Customary Mechanisms to Reintegrate Ex-Combatants in Somalia’ (2017) 11
International Journal of Transitional Justice 276.
Ubink, Janine and Benjamin van Rooji, ‘Towards Customary Legal Empowerment:
An Introduction’ in Janine Ubink (ed), Customary Justice: Perspectives on Legal
Empowerment (IDLO, 2011).
UN General Assembly, Delivering Justice: Programme of Action to Strengthen the
Rule of Law at the National and International Levels: Reports of the Secretary-
General, Un Doc A/66/749 (16 March 2012).
UN Security Council, The Rule of Law and Transitional Justice, UN Doc S/2011/634
(12 October 2011).
UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-
Conflict Societies: Report of the Secretary-General, UN Doc S/2004/616 (23
August 2004).
Uvin, Peter, Life after Violence: A People’s Story of Burundi (Zed Books, 2008).
Waikabi, Wairagala, ‘Mixed Reactions in Uganda as LRA is Transferred to the ICC’
International Justice Monitor, 21 January 2015 <www.ijmonitor.org/2015/01/
mixed-reactions-in-uganda-as-lra-commander-is-transferred-to-the-icc/>.
Waldorf, Lars, ‘“Like Jews Waiting for Jesus”: Posthumous Justice in Post-Geno-
cide Rwanda’ in Rosalind Shaw and Lars Waldorf (eds), Localizing Transitional
Justice: Interventions and Priorities after Mass Violence (Stanford University
Press, 2010) 183–202.
Waldorf, Lars, ‘Mass Justice for Mass Atrocity: Rethinking Local Justice as Transi-
tional Justice’ (2006) 79 Temple Law Review 1.
Chapter 9

Reparations

Jemima García-Godos

9.1 Introduction
Trials of major war criminals or former dictators charged with, for instance, crimes
against humanity attract lots of media attention. We all get to see their faces on
TV, often followed by archival images of situations of conflict and oppression
in which they took part. When verdicts come, we all know what will happen
with those found guilty. But do we know what will happen to those whose rights
were violated – the victims of human rights violations? In this chapter we move
our focus towards victims, as they are the main subjects and actors of victim
reparations.1
As a mechanism of transitional justice, victim reparations emerged over the
past decade as a dynamic field of social and academic inquiry. ‘Reparations’ may
seem an awkward term to use when talking about victims: how to ‘repair’ for the
disappearance of a loved one, for torture, for internal displacement? While there
might exist a common normative ground in international law on the right to repa-
ration, the socio-political context of each country attempting to establish victim
reparations will play a decisive role in shaping the conceptual framework upon
which reparations are based – and this is a highly contested and political process.
This chapter starts with some basic definitions and categories for the study
of victim reparations, followed by a brief historical account of victim reparations
in the international human rights arena. I then move on to the discussion of some
substantive issues that arise in the implementation of victim reparations programs.

1 Naomi Roht-Arriaza, ‘Reparations in the Aftermath of Repression and Mass Violence’ in Eric
Stover and Harvey M Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the
Aftermath of Mass Atrocity (Cambridge University Press, 2004) ch 6; Pablo de Greiff (ed), The
Handbook of Reparations (Oxford University Press, 2006).
194 JemIma GaRCía-Godos

In the final section, I introduce one issue that remains unresolved in the academic
debate on victim reparations: the relation between transitional and distributive
justice. The main message of this chapter is that in spite of their ‘materiality’,
reparations cannot be considered mere administrative measures towards victims;
on the contrary, they involve highly contested matters that bring together social
processes and the interpretation of the past.

9.2 definitions
In the context of transitional justice, there is a widespread consensus over the
desirability and importance of victim reparations, as an effective way to address
the needs of victims2 as well as a means to reconciliation and peace.3 Indeed, the
issue of reparations in transitional justice emerges as a way of addressing the
needs and demands for redress of those who suffered some form of harm in a
previous regime or during armed conflict; that is, the victims. This is what is com-
monly referred to as restorative justice, a dimension of transitional justice which
focuses on the victims of human rights violations, acknowledging their suffering
and needs, and attempting to restore the damage done. The underlying assump-
tion in restorative justice is that physical, psychological, and social damage must
be acknowledged and addressed in order to heal and reconcile. Since restorative
justice seeks to repair or restore the injustice done, victim reparations are com-
monly linked to restorative justice. However, victim reparations constitute only
one aspect of restorative justice, as restorative justice emphasises the humanity
of both victims and offenders, seeking to repair social relations and peace, and
encouraging forgiveness and reconciliation.4 This feature points to the roots
of restorative justice in the Roman Christian tradition. Furthermore, restorative
justice has developed in Western societies as a mechanism of conflict mediation
and/or conflict resolution, particularly related to criminal cases, where the par-
ticipation of both victims and perpetrators is encouraged.5 It is mainly due to its
emphasis on the ultimate goal of reconciliation, which moves beyond the focus on

2 Pablo de Greiff, ‘Repairing the Past: Compensation for Victims of Human Rights Violations’ in de
Greiff (ed), The Handbook of Reparations, n 1.
3 Elin Skaar, Siri Gloppen, and Astri Suhrke (eds), Roads to Reconciliation (Lexington Books,
2005).
4 Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass
Violence (Beacon Press, 1998).
5 This is the case of the European Forum for Restorative Justice, established in 2000, with the aim
to help establish and develop victim-offender mediation and other restorative justice practices
throughout Europe.
 RepaRatIons 195

victims, that the concept of restorative justice has been challenged as inaccurate to
address the needs of victims: what if victims do not want to forgive and reconcile?
What, then, are victim reparations? Instead of providing one specific def-
inition, let us follow de Greiff’s call for the need to distinguish between con-
ceptualisations of reparations as used in international law and the ones used by
practitioners in reparations programs. Although related to each other, these two
contexts involve different choices and motivations in a conceptualisation of vic-
tim reparations.6
In international law, ‘reparations’ refers to all sorts of reparatory measures
implemented to address human rights violations suffered by victims, indepen-
dently of what kind of violations we are dealing with or who the victims are.
Reparations can be understood in this sense as an outcome of a judicial process: a
verdict might sentence the perpetrator, not only to a jail term, but also to provide
some form of reparation to the victims. This juridical definition of reparations
obviously needs to be very broad, because the choices available to the judicial
process must consider all possible situations and adjust to a wide range of indi-
vidual cases. Commonly, five specific forms of reparations are identified in this
menu of choices: restitution, compensation, rehabilitation, satisfaction, and guar-
antees of non-recurrence.
While restitution aims to restore the victim to the original situation before
violations were committed (addressing mainly personal but also material suffer-
ing, by way of restoring rights, giving property back, or even the physical return
to a place of origin), compensation refers to economically assessable damage,
and rehabilitation to medical and psychological care. The categories of satisfac-
tion and guarantees of non-recurrence make reference to broader processes and
initiatives, some involving other mechanisms of transitional justice (that is, disclo-
sure of truth, judicial and administrative sanctions) or even institutional reform.
In the context of designing specific reparations programs, a narrow defini-
tion of reparations is needed, as it refers to a specific target group (the victims) and
a specific type of crimes/human rights violations. This definition does not include
truth-telling, criminal justice, or institutional reform. Instead, it operates on the basis
of two fundamental elements: the types of reparations provided (material and sym-
bolic) and the forms of distribution applied (individual and collective). The narrow
definition of reparations is, in a sense, an operational one, suggesting certain limits
to the responsibilities of those in charge of designing reparations programs.
Symbolic reparations include various forms of recognition and acknowl-
edgement for the suffering of victims, such as commemorations, rituals in homage

6 Pablo de Greiff, ‘Justice and Reparations’ in de Greiff, n 1.

196 JemIma GaRCía-Godos

to the victims, changing the names of streets in honour of victims, places of mem-
ory, and apologies in the name of the nation, either as public acts or through
private letters.7 Material forms of reparation include all tangible assets which
are provided to repair the harm done; this includes money (monetary compensa-
tion), goods or services (that is, housing, working tools, health treatment). Mon-
etary compensation might in turn be provided as a single lump sum, or a series
of payments (like pensions), while restitution will involve the return of lost prop-
erty. Privileged access to educational and health programs can also be considered
material reparations. There has been an expansion of the forms that material repa-
rations may have, moving from what was previously the most dominant form of
reparation (that is, individual monetary compensation) towards services, such as
mental health schemes, legal counselling, medical treatment, scholarships, prior-
ity in housing schemes, and more.
Should states provide symbolic or material reparations? There is consensus
today that both forms of reparations are needed. When symbolic forms of repa-
rations are not accompanied by other, more tangible benefits, they can be inter-
preted by the victims as empty words with no serious commitment to redress.8
In countries opting for monetary compensation, the challenge is not only how
to measure the appropriate amount of money to be granted as reparation for spe-
cific human rights violations but also how to restore the dignity of victims. In
Argentina, monetary compensation was initially perceived by victims’ families as
‘blood money’ offered in exchange for their silence.
One criterion that has been applied in international law to establish the size
of monetary compensation is restitution in integrum, that is, full restitution. There
are standard methods for measurement of what ‘full restitution’ might be, based
in the socio-economic status of the victim, future earnings, and costs of living,
among others. According to de Greiff, this is problematic, not only because it is
almost impossible to define what constitutes full restitution, but also because it
is a mechanism designed for individual cases and therefore difficult to apply in
cases of massive human rights violations, none the least due to the large amount

7 Symbolic reparations involves a broad scope of practices, many of which are also shared and
applied by civil society, victims’ organisations, NGOs, religious communities, and other social
actors who may want to pay homage or commemorate victims; this can be referred to as memo-
rialisation. In the context of this chapter, shared practices are considered reparations only when
carried out or implemented by the state or state actors, who have the duty to fulfill victims’ right
to reparation. For recent research on symbolic reparation, the arts, and TJ, see Peter Rush and
Olivera Simić (eds), The Arts of Transitional Justice: Culture, Activism, and Memory after Atrocity
(Springer-Verlag, 2014).
8 Minow, n 4.
 RepaRatIons 197

of resources that the principle of full restitution would involve for countries that
lack those resources from the outset.9
One way to level the choice between symbolic and material reparations is
the option of collective material reparation, which is becoming the most pre-
ferred option for governments facing redress for massive human rights violations.
The most common form of collective reparations involves the provision of basic
public infrastructure, such as water and sanitation, health posts, schools, bridges,
and local roads. However, the distinction between reparations and development
projects becomes blurred, and there are those who argue that the development
responsibilities of governments can never stand as reparation for human rights
violations.10
Regarding the form of distribution of reparation benefits, states can opt for
individual or collective reparations. Ideally, a reparations program ought to include
both modalities. Most commonly, governments with limited resources prefer col-
lective reparations schemes, while human rights activists and not a few victim
organisations prefer individual reparations, based on the argument that individual
suffering calls for the individual restoration of rights and dignity. Arguments in
favour of one or the other form of distribution are many, and include pragmatic as
well as normative and philosophical reasons. Would an individual victim of forced
displacement receive the acknowledgement and redress he deserves through a
collective reparations scheme providing, say, housing and public services? There
are those who argue that he would, because the program would address present
needs, while others argue that the individual personal suffering is not sufficiently
addressed in the collective character of the reparation.
The distinction between a juridical and an operational conceptualisation of
reparations might prove useful at the analytical and operational level, yet it should
also be said that the operational definition is not only grounded on the broader
juridical definition, but it becomes itself a legal category which determines many
aspects of the reparation involved. For this reason, the debate between interna-
tional law experts and reparations practitioners and advocates seems to be more
a matter of form and scope rather than content. There is no inherent contradiction
between juridical and operational definitions, as they both focus on and acknowl-
edge the victim’s right to redress, and the state’s duty to address the needs of

9 de Greiff, n 6, 456.
10 This is an ongoing debate in countries where collective reparations programs are being imple-
mented, such as in Peru, where the author has conducted research on the reparations program. It
is worth noting that there is no clear position among victim groups/beneficiaries and human rights
organisations on whether or not development projects can or should be considered as an appropri-
ate form of reparation. Different positions can be found in all groups.
198 JemIma GaRCía-Godos

victims. As we shall see later, most debates on reparations centre on the appli-
cability and implementation of juridical definitions to specific cases, particularly
those involving massive human rights violations – which is usually the case in
situations of transition from armed conflict and authoritarian regimes.

9.3 Brief historical overview

Where does the term ‘reparation’ comes from? Reparation was originally used
to refer to the monetary compensation that victorious nations required from those
they defeated in war. After World War II, reparations referred also to the com-
pensation given to the survivors of the Nazi Holocaust, by far the most compre-
hensive reparations effort implemented in modern history. While a similar use
has been applied to compensation programs for Japanese-Americans interned in
relocation camps during World War II and the case of Asian ‘comfort women’
for Japanese soldiers, the concept has continued to develop since World War II.11
The term was also adopted by African-Americans seeking compensation for the
enslavement of black peoples prior to the American Civil War, as well as Austra-
lian Aborigines’ claims; in those particular cases, reparations are understood as
a way to redress historical injustices.12 While the literature on the Holocaust has
been abundant since the end of World War II, the literature on historical injustices
has received an impetus since the end of the Cold War. According to Barkan,
‘the demand that nations act morally and acknowledge their own gross historical
injustices’ is a novel phenomenon, resulting from the introduction of questions of
morality and justice in the realm of politics.13 These two bodies of literature share
some common features with the study of victim reparations as part of transitional
justice, particularly its focus on past violations and victims. The difference how-
ever, lies more in the context in which violations where committed: World War
II, colonialism (but not only colonialism), and authoritarian regimes and armed
conflicts of the near past.
In the 1980s and 1990s, former military dictatorships and authoritarian
regimes in Latin America and Southern and Eastern Europe underwent processes

11 John Torpey, ‘Victims and Citizens: The Discourse of Reparation(s) at the Dawn of the New Mil-
lennium’ in Koen de Feyter et al (eds), Out of the Ashes: Reparation for Victims of Gross and
Systematic Human Rights Violations (Intersentia, 2005) ch 2.
12 Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (Norton,
2000). There is abundant literature on these understandings of reparations, as is easily observed
on the internet, where one can find numerous websites with resources on Holocaust and African-
American reparations claims.
13 Philosophers would, of course, trace these topics back to medieval discussions about the justice of
war and justice in war; thanks to Andreas Føllesdal for bringing this to my attention.
 RepaRatIons 199

of transition to democracy, as a consequence of internal dynamics and the interna-

tional political climate. The democratic transitions brought along the possibility
for some form of accountability for past human rights violations. Victim repara-
tions became part of this agenda, which grew steadily in the international arena,
particularly in the realm of international law and human rights law. There are two
processes which directly contributed to the consolidation of the issue of victim
reparations and the enhancement of the rights of victims of human rights viola-
tions.14 These processes were initiated at different points in time over the course
of 30 years, peaking in the 1990s. In their own manner, they have both been suc-
cessful in putting the issue of victim reparations in the international agenda. These
processes are (i) the work with the Basic Principles and Guidelines on the Right
to Remedy and Reparation and (ii) the International Criminal Court’s focus on
victims’ rights.15

Basic Principles and Guidelines on the Right to a

Remedy and Reparation
On 16 December 2005, the General Assembly of the United Nations approved
the Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law.16 This completed a process that
started in 1988, when the Sub-Commission on Prevention of Discrimination and
Protection of Minorities (now the Sub-Commission on Promotion and Protection
of Human Rights) recognised that all victims of gross human rights violations
and fundamental freedoms should be entitled to restitution, fair and just com-
pensation, and the means for as full a rehabilitation as possible for any damage
suffered.17 This acknowledgement was followed by a 1993 study prepared by

14 The identification of these processes is based on their international presence and influence. Similar
initiatives at the national level have also contributed to the advance of victim rights in individual
countries.
15 The issue of redress in the Draft Principles on State Responsibility could be considered a third
track. See Jemima García-Godos, ‘Victim Reparations in Transitional Justice – What Is at Stake
and Why’ (2008) 26(2) Norwegian Journal of Human Rights 111–130.
16 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humani-
tarian Law, GA Res 147, UN GA, 60th sess, 64th plen mtg, Agenda Item 71(a), UN Doc A/
RES/60/147 (adopted and proclaimed 16 December 2005) (‘Basic Principles’).
17 Dinah Shelton, ‘The United Nations Draft Principles on Reparations for Human Rights Violations:
Context and Content’ in Marc Bossuyt and Paul Lemmens (eds), Out of the Ashes: Reparation for
Victims of Gross and Systematic Human Rights Violations (Intersentia, 2005) ch 1.
200 JemIma GaRCía-Godos

Special Rapporteur Theo van Boven;18 this document became the basis for the
Basic Principles approved in 2005.
As stated in the Preamble, the Basic Principles are directed ‘at gross vio-
lations of international human rights law and serious violations of international
humanitarian law which, by their very grave nature, constitute an affront to human
dignity.’ The Basic Principles establish that the right to remedy comprises two
aspects: the procedural right to justice and the substantive right to redress for
injury suffered due to act(s) in violation of rights contained in national or inter-
national law. According to the Basic Principles, ‘remedies for gross violations of
international human rights law and serious violations of international humanitar-
ian law include the victim’s right to the following as provided for under interna-
tional law’: equal and effective access to justice; adequate, effective, and prompt
reparation for harm suffered; and access to relevant information concerning viola-
tions and reparation mechanisms.

Concerning reparation, the Basic Principles establish that in accordance with its
domestic laws and international legal obligations, a State shall provide reparation
to victims for acts or omissions which can be attributed to the State and constitute
gross violations of international human rights law or serious violations of interna-
tional humanitarian law.

The full and effective reparation envisaged by the Basic Principles includes resti-
tution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition
(non-recurrence), introduced earlier.
The Basic Principles operate with a broad definition of reparations, one which
also addresses alternative or complementary transitional justice mechanisms (that
is, the right to justice, the right to truth). It is important to emphasise that the Basic
Principles’ focus on remedy and reparations does not exclude the right to justice
or the duty to prosecute violations that constitute crimes under international crim-
inal law.19 This reflects the current international trend promoting accountability
for past crimes in post-conflict societies and post-authoritarian regimes,20 while

18 Theo van Boven, Final Report of the Special Rapporteur: Study Concerning the Right to Restitu-
tion, Compensation and Rehabilitation for Gross Violations of Human Rights and Fundamental
Freedoms, UN Doc E/CN.4/Sub.2/1993/8 (2 July 1993).
19 Basic Principles, n 16, section III, para. 4.
20 On accountability for past crimes, see Cherif Bassiouni, ‘Accountability for Violations of Inter-
national Humanitarian Law and Other Serious Violations of Human Rights’ in Cherif Bassiouni
(ed), Post-Conflict Justice (Transnational Publishers, 2002) ch 1; Naomi Roht-Arriaza, ‘The New
Landscape of Transitional Justice’ Introduction in Naomi Roht-Arriaza and Javier Mariezcurrena
(eds), Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (Cambridge
University Press, 2006).
 RepaRatIons 201

keeping in mind that accountability can take various forms, some aimed to fulfil
the requirements of international criminal law (prosecutions), others focusing on
the needs of victims and their families (as reparations). The most recent example
of this trend came in December 2016, when the Colombian government and the
FARC guerrilla organization reached a milestone agreement on victims’ rights,
considered by many the most pressing issue of the peace talks agenda.21 Guided
by principles of restorative justice, the agreement envisages the combination of
judicial and non-judicial measures, a truth commission, and guarantees of non-
repetition. In the Colombian case, victims’ rights seem to have made their way
into the peace agreement.
The distinctions made in the Basic Principles between different forms of
reparation, particularly restitution, compensation and rehabilitation, contribute to
a much needed conceptual clarification in the field of victim reparations. The defi-
nitions will contribute to the operationalisation and design of specific measures in
the context of reparations programs.
Furthermore, and in spite of its status as ‘soft law’, as they are not legally
binding, the Basic Principles provide legal support to representatives and advo-
cates of victims’ rights in national settings to the effect that victims are legally
entitled to reparations.22 Much as the Guiding Principles on Internal Displacement
did for the plight of internally displaced persons in the political and humanitarian
agendas, the Basic Principles constituted the beginning of a process of institu-
tionalisation and international involvement in the issue of reparations, the rights
of victims, and the design and implementation of specific reparations programs.

the International Criminal Court (ICC)

The Basic Principles make explicit reference to the ICC Statute and the ICC’s
requirements concerning the treatment of victims of international core crimes,
specifically the establishment of various forms of reparation, the creation in the
ICC Statute of a trust fund for victims, and the protection and participation of vic-
tims during court proceedings. Indeed, the ICC’s Statute and Rules of Procedure
and Evidence both establish a series of rights for victims of crimes that fall under
its jurisdiction. One innovation in the statute is the provision for the participation
of victims during court proceedings and the chance to present their views and

21 See Borrador Conjunto – Acuerdo Sobre las Víctimas del Conflicto [Common Draft – Agreement
about the Victims of the Conflict] (15 December 2015) <www.mesadeconversaciones.com.co/
sites/default/files/borrador-conjunto-acuerdo-sobre-lasvictimas-del-conflicto-1450190262.pdf>.
22 Richard Falk, ‘Reparations, International Law, and Global Justice: A New Frontier’ in de Greiff
(ed), The Handbook of Reparations, n 1, ch 13.
202 JemIma GaRCía-Godos

observations before the court. Regarding reparations, the court has the power to
order individuals to pay reparation to other individuals, and it has the option of
granting reparations individually, to a single victim, or collectively, that is, to a
group of victims. Reparations may include restitution, indemnification, and reha-
bilitation, and the court may order these to be paid through the Victims’ Fund.
The ICC has two special units to ensure victims’ participation. While the Victims’
Participation and Reparation Section provides public information on reparation
proceedings and applications, the Office of Public Counsel for Victims provides
legal support and assistance to the legal representatives of victims and to victims.
The institutionalisation of victim reparations as an integral part of the work of the
ICC brings the rights of victims to the highest level, and can be expected to have a
strong effect upon national criminal courts, both in protecting the right to remedy
as well as fighting impunity.
A more recent development regarding victims’ rights, reparation, and reha-
bilitation in particular is the approval of General Comment No 3 (2012) on the
Implementation of Article 14 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT). This general comment
explains and clarifies to states parties the content and scope of the obligations
under CAT Article 14, by which states parties have both a procedural and a sub-
stantive obligation to provide redress to victims of torture and ill-treatment.23
The common thread that runs across these international developments is
their focus on victims, both in terms of legal status and enhancement of rights.
Work along these tracks has received inputs from operational actors, such as
international organisations, non-governmental organisations (NGOs) and aca-
demics alike. The influence has also gone in the opposite direction, with interna-
tional legal work setting the agenda for national/regional debates and operational
practices as well. Similarly, the jurisprudence of regional human rights courts
has influenced and been influenced by the international debate on victim rights.24
The drafting processes of international legal documents have involved lively aca-
demic debates, albeit confined to the field of law.25 The transitional justice litera-
ture of the past 20 years has opened up the field for other disciplines, particularly

23 Committee Against Torture, General Comment No 3, UN Doc CAT/C/GC/3 (19 November 2012).
24 The work of the Inter-American Court of Human Rights has been particularly strong in setting
precedence on the duty to repair and compensate human rights violations under international law.
See Arturo J Carrillo, ‘Justice in Context: The Relevance of Inter-American Human Rights Law
and Practice to Repairing the Past’ in de Greiff, n 1, ch 14.
25 See, eg, Christian Tomuschat, ‘Individual Reparation Claims in Instances of Grave Human Rights
Violations: The Position under General International Law’ in Albert Randelzhofer and Christian
Tomuschat (eds), State Responsibility and the Individual: Reparation in Instances of Grave Viola-
tions of Human Rights (Martinus Nijhoff Publishers, 1999) ch 1; van Boven, n 18.
 RepaRatIons 203

from social science, which are contributing at the analytical and empirical level.
As for research on victim reparations, the past decade has been one of expansion
and prolific publication, filling a gap long lamented by those working on transi-
tional justice.26

9.4 Implementing reparations programs:

points of contention and controversy
The apparent international consensus over the right to remedy and reparation
for victims of human rights violations needs to be contrasted with contestation
around the design and implementation of specific reparations programs. These
programs involve a series of substantive, ultimately political decisions to be taken
by new regimes, and there is nothing universal about the way different coun-
tries go about taking these decisions. On the contrary, such decisions are highly
contextual, depending not only on the political conditions of the post-conflict or
transitional period but also on the historical legacy of the previous regime, power
structures, and even practical matters (such as the feasibility of implementation
and funding). In this section, we discuss victim reparations by focusing on the
most important decisions involved in the elaboration and implementation of repa-
rations programs.

9.5 acknowledging the need for reparations

Many truth commissions may recommend the need for reparations as an integral
part of a transitional justice process. This does not mean, however, that repara-
tions will ever be implemented. In order to opt for reparations, a political regime
has first to acknowledge the existence of a situation that calls for reparations, as
well as the existence of people who have been harmed and are therefore entitled
to the attention of the state through various forms of reparation. Opting to provide
reparations thus involves the initiation of a comprehensive and sensitive process
often accompanied by high expectations among victim groups and potential bene-
ficiaries, and volatile political commitment and public budgets. On the other hand,
political will to develop and implement a reparations program might lend popular
support and legitimacy to the new regime. Having said yes to victim reparations,
regimes will then have to act effectively and quickly in order to prove their com-
mitment and sustain credibility. An illustrative example is the development of the

26 This prolific development started in the mid-2000s, when seven volumes were published in the
course of two years. These can be found in the Suggested Reading list.
204 JemIma GaRCía-Godos

Peruvian Reparations Program. While the legislation establishing the program

was in place in 2005, two years after the Truth Commission Report was published,
the design and elaboration of the National Victims Registry was not completed
until 2011. Individual reparations could not be awarded before the registry was
complete. While this may be technically reasonable, the lapse of time was under-
stood by victims as a lack of commitment by incumbent governments.

9.6 defining target groups: victims and

beneficiaries
Who is the subject in victim reparations programs? In other words, who is the
victim? This apparently candid question is the most important issue in victim
reparations. Human rights violations are often depicted in terms of victim and
perpetrator, those who have been harmed and those who have inflicted harm upon
others and/or bear responsibility for the violations. In the context of reparations,
the identification of the victim is vital, as it is he or she who will be entitled to
whatever form of remedy or benefit is to be provided. Through the use of legal
categories, reparations programs can identify the universe of victims to which
the program is addressed, often by reference to specific types of human rights
violations. In that manner, ‘victim’ tends to refer to all those who have suffered
a specific type of violation. The most common types of violation in authoritarian
regimes and armed conflict situations are, among others, murder, kidnappings,
torture, forced disappearance, rape, sexual abuse, mutilation, forced draft, and
displacement. In other words, the victim is identified on the basis of the type of
violation inflicted upon him or her.
Another way to establish who the victims are is by focusing on victim-
hood: what forms of suffering constitute victimhood? In his influential book
Closing the Books, social and political theorist Jon Elster differentiates between
three types of suffering, situations that are wider in scope than specific legally
defined violations.27 Material suffering involves the loss of real or personal
property, the loss coming about either by destruction or confiscation; by per-
sonal property one refers to physical objects or financial assets. In some cases,
the way the loss occurred may strengthened or delegitimise certain claims. Per-
sonal suffering refers to harm to life, body, or liberty, which can take place both
during and outside combat situations. Intangible suffering refers to the loss or
lack of opportunities.

27 Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge Univer-
sity Press, 2004) 127.
 RepaRatIons 205

While it is important to establish the basis for the identification of victim sta-
tus with regard to access to benefits in a reparations program, we need to remem-
ber that the same victim might have experienced multiple violations, multiple
forms of suffering. This acknowledgement poses a challenge to reparations pro-
grams, which will have to decide whether to provide various measures addressing
different violations, or opt to focus on only one or a few specific violations. For
example, what type of violation should be the basis of an appropriate response to
an internally displaced mother of two, whose husband was murdered by paramili-
taries in the Colombian countryside, and who was forced to abandon her farm? In
this example, at least two violations could be used to determine the victim status
of this woman: extrajudicial killing of her husband and the forced displacement of
her family. The definition of ‘victim’ applied by the specific reparations program
will determine whether one single violation will take priority over the others or
whether all violations will be addressed.
As we can see, the different types of suffering call for different approaches to
the issue of reparations and new challenges arise. In most cases, the burden of proof
is usually the responsibility of the claimant. The main emphasis has usually been
on the need to avoid paying compensation to those not entitled, rather than to avoid
denying them to those who are entitled. The demand for rigorous proof of victimi-
sation may, for some victims, add to their burden.28 Another aspect is the issue of
citizenship or residence, as some reparations programs may require these for access
to reparations. A state may want to provide reparations only to its own citizens,
and a collective reparations program might want to address the needs of selected
populations, based on their place of origin; proving residence in that area becomes
a requirement for the entitlement. Particularly in the context of intangible suffer-
ing, the debate seems to focus on what is to be considered the optimal or legitimate
grounds for compensation: past suffering or present and future needs (we return to
this issue in the next section). Will monetary compensation be enough to ensure that
a victim not only recovers from past suffering but also meets her present and future
needs? Could these needs be better satisfied through other forms of reparation, such
as property restitution? All these questions imply complex political choices.
While the identification of victims is the cornerstone of any victim repara-
tions program, it is necessary to problematise the dichotomy of victim/perpetrator.
The human rights discourse that informs most of the transitional justice litera-
ture tends to reduce complex realities into neat, clear-cut, legalised categories.29

28 Ibid 183.
29 Richard Ashby Wilson, ‘Representing Human Rights Violations: Social Contexts and Subjectivi-
ties’ in Richard Ashby Wilson (ed), Human Rights, Culture and Context: Anthropological Per-
spectives (Pluto Press, 1997) ch 6.
206 JemIma GaRCía-Godos

However, these two categories do not cover the universe of actors that take part in
armed conflict or are involved in human rights violations. Neither are the bound-
aries of these categories always clearly delineated. It is not uncommon to find that
a single individual might have had various degrees of involvement in activities
leading to human rights violations.30 An example from Peru can illustrate this: a
young man might have been recruited to join the guerrilla group Shining Path in
Peru in the early 1980s, and participated in operations across the countryside such
as setting up flags, making incursions in small villages, and calling for armed
struggle among the rural population. Some of these operations resulted in the
extrajudicial execution of local peasant leaders. The young man himself did not
kill anyone, abandoned the guerrilla group after a few months, and joined the
peasant patrols instead. Is this young man a perpetrator? What if a close family
member was killed during a military raid – is he a victim? These alternative roles
are a challenge for transitional justice processes, where clear legal identifications
are at the basis of the decisions that need to be taken.
Finally, and closely related to the identification of victims, is the identifica-
tion of beneficiaries of reparations programs.31 Should reparation be limited to the
victim herself, if she survived abuse? In the case of death and disappearance, it
is often the closest relatives who become beneficiaries of reparations programs.
Should they also be considered as victims? Can descendants claim reparations for
violations committed a generation or more ago? As we can see, the operational
definitions of ‘victim’ and ‘beneficiary’ bear great consequences in defining who
is entitled to certain benefits and on what basis, and who is not.

9.7 Choosing the types of reparation

All too often, national public debates on reparations tend to narrowly focus on one
single issue: the size of monetary compensation, ignoring the fact that this (com-
pensation) is only one of the many forms that reparations can take. As discussed
earlier, there are two basic distinctions to be made concerning types of repara-
tions, one regarding their form (symbolic or material), and the other concerning
its distribution (individual and collective).
In choosing the most appropriate response to victims’ needs, it is essential to
be clear about who the victims of past human rights violations are, what types of
victimhood they have experienced, and what are their current needs. The situation
of amputees in Sierra Leone illustrates this clearly. The loss of a limb (or more)

30 This is what political scientist Ivan Orozco in Colombia refers to as ‘complex victims’. See also
Erika Bouris, Complex Political Victims (Kumarian, 2007).
31 This is not to be confused with Elster’s ‘beneficiaries’ in the classification presented above.
 RepaRatIons 207

creates a permanent disability affecting a person’s quality of life for the rest of her
life, affecting her ability to perform private functions such as personal hygiene,
cooking, taking care of children, and taking on a job to secure her livelihood. In
such a situation, lump-sum cash payments, such as the $100 reparations grant
provided in Sierra Leone in the late 2000s, are ill suited for individuals with long-
term needs such as amputees. These victims are likely to require longer-term,
sustained support involving different types of reparations in order to secure their
livelihoods in the midst of a most difficult situation.

9.8 operational and institutional design

Most reparations programs are designed and operated as administrative programs;
that is, they follow administrative procedures in which the burden of proof is
administratively set and processed by public officials. This design is appropriate
for cases in which the number of potential beneficiaries is large. It is assumed
that administrative procedures will be more effective and prompt than alternative
mechanisms. This is only partly true, however, because the operations of a repara-
tions program involve (i) the existence of an already identified universe of benefi-
ciaries, properly registered and accredited in a victims’ registry; and (ii) the proper
set-up of specific measures to be provided to beneficiaries. Neither element can be
taken for granted in a transitional justice context. For one, the establishment of a
victims’ registry not only poses logistical problems but involves all the complex
and political issues discussed earlier concerning the definition of ‘victim’. And
second, the implementation of specific measures by different government agen-
cies requires institutional coordination and cooperation as well as clear political
priorities. Weaknesses in any of these elements will pose a challenge to the effec-
tive implementation of a reparations program.
Funding is always a challenge for most public endeavours, including victim
reparations programs. Most administrative programs are funded by public mon-
ies, often with the support of international bilateral and multilateral donors and
development cooperation agencies. While international funding is welcome and
needed in many post-conflict countries, it is important to emphasise that repara-
tions programs can run into difficulties when trying to meet ‘delivery’ criteria that
are usually applied to other forms of development cooperation. In Sierra Leone,
the National Reparations Program designed a compensation scheme for amputee
victims aiming towards the expedient delivery of funds within a year, or else
less funding would be drawn. While expediency deserves praise, the scheme was
problematic, as it did not take into account the long-term character of the difficul-
ties this particular group of victims faced.
Reparations programs are not the only way for victims to obtain reparations;
judicial processes and civil litigation are also an option. While this might secure
208 JemIma GaRCía-Godos

the rights of individual victims, the option of case-by-case proceedings runs the
risk of de-contextualising individual cases from their historical situation and
collective character. The Colombian Justice and Peace process initiated in 2005
aimed to combine a judicial process with reparations for victims as an outcome of
the proceedings. The scope and complexity of the process exceeded all expecta-
tions, and by December 2012 (latest official figures) only 11 cases had reached
the reparations phase. Aware of the challenges ahead, the Colombian state estab-
lished an administrative reparations program in 2008. This was later replaced by
a more comprehensive program of victim reparations under the framework of the
Victims’ Law of 2011 (see Case Study B).

9.9 Current debate: can reparations be

transformative?
One of the most vibrant debates in the field of transitional justice today, bearing
direct impact on victim reparations, is the one concerning the relation (or tension,
for some) between transitional justice and distributive justice (see Chapter 11 in
this volume, Olivera Simić, ‘Arts and transitional justice’). Distributive justice
refers to a form of justice that takes into consideration the socioeconomic and
political forms of distribution and access to power and resources in any given
society. This understanding of justice is particularly relevant in societies with deep
socio-economic inequalities. In the framework of transitional justice, there are
those who consider distributive justice to be an integral part of a TJ framework,32
while others consider it to be part of the realm of politics, thus complementing
but not included in the ‘mandate’ of TJ mechanisms proper. There is an increased
acknowledgement, however, of the complementary role of distributive justice if
the overall objective of a transitional process is sustainable peace.33
How does this relate to reparations? The ongoing debate on whether or not
TJ should include a distributive justice agenda enters the reparations arena by
questioning what is to be considered the optimal or legitimate grounds for victim
reparations: past suffering or present and future needs? Will a monetary com-
pensation, for example, be enough to ensure that a victim not only recovers from

32 See Roger Duthie, ‘Toward a Development-Sensitive Approach to Transitional Justice’ (2008)

2(3) International Journal of Transitional Justice 292–309; Chris Huggings, ‘Linking Broad
Constellations of Ideas: Transitional Justice, Land Tenure Reform, and Development’ in Pablo
de Greiff and Roger Duthie (eds), Transitional Justice and Development: Making Connections
(Social Science Research Council, 2009) ch 9.
33 Pablo de Greiff, ‘Articulating the Links Between Transitional Justice and Development: Justice
and Social Integration’ in de Greiff and Duthie, n 32, ch 1.
 RepaRatIons 209

past suffering, but also has her present and future needs met? This is at the heart
of the debate: that it is not enough to bring the victim back to her original social
and economic status, often one of poverty and deprivation, but that she should be
given the opportunity to improve her situation. In other words: the aim of repara-
tions should not be limited to returning the victim to the original situation, but aim
instead at not only improving the victim’s living standards and prospects for the
future but also transforming the socio-structural conditions that fostered human
rights violations in the first place. In Colombia this has been termed as ‘transfor-
mative reparations’ (reparación transformadora),34 a principle that partly guides
the current reparations and restitution programs implemented since 2012 through
the Colombian Victims’ Law (see Case Study B).
The tangible nature of victim reparations brings up the immediate question as
to how this transformative potential can be realised, how it can be operationalised.
One way to think about this issue is through the selection of forms of repara-
tions to be provided to individual victims; the focus is thus to identify or design
appropriate measures that will have a lasting, positive effect in the lives of indi-
vidual victims. Options might include a more generous monetary compensation
or monthly pension, participation in a mental health program, support to return to
one’s place of origin, and the restitution of abandoned property.
In his contribution to the debate on TJ and distributive justice, human rights
scholar Lars Waldorf identifies socio-economic rights as an entry point, as these
are particularly relevant in societies with deep socio-economic inequalities.35 The
enforcement of socio-economic rights in a transitional society is mostly con-
sidered as part of the everyday politics, but it could also be framed in terms of
victim reparations. Recollecting the five forms of reparations identified by the
Basic Principles, we can see that measures of satisfaction and guarantees of non-
recurrence involving broad measures of institutional reform can contribute to the
transformative potential of reparations at a higher, more structural level. As forms
of reparation, satisfaction and guarantees of non-recurrence are still under-stud-
ied, at both the empirical and conceptual levels. It can, however, be expected that
these two measures are possibly the ones bearing most potential regarding the
transformative character of victim reparations.

34 On the transformative potential of reparations in the Colombian context, see Rodrigo Uprimny
and Maria Paula Saffon, ‘Reparaciones Transformadoras, Justicia Distributiva y Profundización
Democrática’ in Catalina Díaz et al, Reparar en Colombia: Los Dilemas en Contexto de Conflicto,
Pobreza y Exclusión (ICTJ, DeJusticia, 2009) 31–69.
35 Lars Waldorf, ‘Anticipating the Past: Transitional Justice and Socio-Economic Wrongs’ (2012)
21(2) Social and Legal Studies 171–186.
210 JemIma GaRCía-Godos

9.10 Conclusion
Victim reparations involve highly normative, ethical and political issues. Our
discussion of the core issues and choices present in developing victim repara-
tions programs highlights the social and contested character of reparations. The
conceptual clarification in this emerging field is a fairly recent development, and
categories are still being challenged in the academic debate. Similarly, while
consensus has been reached about the legitimacy of victims’ rights to truth, jus-
tice, and reparations, there is an ongoing debate over how best to address the
needs of victims, in both form and content. This chapter does not provide a blue-
print of the perfect reparations program, but it does provide the student with the
conceptual tools and questions needed to critically analyse the decisions behind
different reparations programs and alternatives. The take-home message is: repa-
rations are political and must be studied in the specific socio-political context of
transitional societies.

9.11 summary
The issue of reparations in transitional justice emerges as a way of addressing
the needs of victims of human rights violations during authoritarian regimes or
armed conflict. In spite of the international consensus over the legitimacy and
need for victim reparations, these are not immediately implemented by transi-
tional governments, mainly due to the contested nature of the demands and needs
of victims. Of all mechanisms of transitional justice, victim reparations possibly
are the most tangible form of addressing victims’ needs. In spite of their ‘materi-
ality’, however, reparations cannot be considered mere administrative measures
towards victims. On the contrary, they involve highly contested matters such as
who the victims are, what their needs are, and what type of responses are the most
appropriate. These decisions are part of a broader socio-political processes where
definitions of victims and perpetrators will determine who is entitled to repara-
tions and on what basis.

Case study a: peru’s collective reparations program

Following the Peruvian transition in 2000, a truth and reconciliation commission
(Comisión de la Verdad y Reconciliación, or CVR) was established in 2001. The
CVR’s final report, delivered in 2003, included a detailed proposal for a compre-
hensive reparations plan. To follow up on the CVR recommendations, particularly
those concerning reparations, an administrative unit was created in 2004, the
High-Level Multisectoral Commission (Comisión Multisectorial de Alto Nivel,
or CMAN). A law creating a Comprehensive Reparations Program (Programa
 RepaRatIons 211

Integral de Reparaciones, or PIR) was passed in 2005. The law also established
the National Registry of Victims (Registro Único de Víctimas, or RUV) to be
monitored by the Reparations Council (Consejo de Reparaciones). In addition to
designing and operating the RUV, the council developed criteria to determine
whether a person or group of people can be accredited as victims. While the
definitions of ‘victim’ and ‘beneficiary’ in the law, the rules of procedure, and the
registry are relatively broad and inclusive, there is one important exclusion from
the status of victim and thus access to reparations: former members of guer-
rilla groups. Independently of whether their rights have been violated, former
guerrilla members cannot be entitled to reparations. This exclusion points to
the political character as well as the limits of transitional justice mechanisms in
post-conflict societies.
The law envisaged the creation of six reparations programmes, providing
benefits to prioritised groups in the areas of health, education, housing, civil
rights, symbolic reparations, and collective reparations, and other measures
that the CMAN might find appropriate. The Collective Reparations Programme
(Programa de Reparaciones Colectivas, PRC) was the first to be implemented,
starting in 2007. Based on needs assessments of local communities affected by
the armed conflict, the programme provided financial support for small develop-
ment projects, often accompanied by a symbolic act to commemorate the vic-
tims and survivors. These projects involved basic infrastructure and productive
initiatives, but also day care centres, schools, and playgrounds. Some human
rights organisations have criticised this type of support on the grounds that such
collective reparations are not clearly distinguished from ordinary development
projects. They point out that development initiatives are the duty of states under
any circumstances, and therefore such projects do not embody the restorative
dimension that reparations are meant to fulfil. According to the CMAN, of the
5,712 communities registered as affected by the armed conflict in 2013, 40 per
cent had received collective reparations by 2016.36

Case study B: Colombia’s Victims’ Law and land

restitution program
Since 2005, Colombia embarked in an unprecedented process of transitional jus-
tice, aimed at implementing mechanisms of transitional justice before the end
of the armed conflict.37 It is in that context that Colombian Law 1448 of 2011,
known as the Victims’ Law, addresses the issue of internal displacement and
(continued)

36 CMAN, Informe Anual sobre la Implementacion del Plan Integral de Reparaciones (2017) 41
<https://cman.minjus.gob.pe/wp-content/uploads/2017/08/InformeAnualCMAN2016.pdf>.
37 Jemima García-Godos and Knut Andreas O Lid, ‘Transitional Justice and Victims’ Rights before
the End of a Conflict: The Unusual Case of Colombia’ (2010) 42(3) Journal of Latin American
Studies 487–516.
212 JemIma GaRCía-Godos

(continued)
land dispossession caused by the armed conflict in the country. The law aims to
facilitate the return of people who fled their homes and land due to the conflict,
by giving back what was lost. With a registered number of victims of internal dis-
placement surpassing 6.5 million people,38 this is an enormous task. To achieve
its aims, the Colombian government has put in place a nation-wide program of
victim reparations and land restitution, operational since 2012. The land restitu-
tion program involves a comprehensive set of regulations, legal mechanisms,
and procedures that brings together a multiplicity of public agencies and social
actors, individuals and collectives.
The law recognises as ‘victims’ not only those harmed by illegal armed
groups, such as paramilitaries and guerrillas, but also those victimised by the
Colombian police and armed forces. Reparations can be claimed for physical,
material, and psychological harm since 1985, while land and property restitution
applies to events since 1991. Victims include those who suffered these violations
independently of the status or identification of the perpetrator, as well as clos-
est relatives. Members of armed groups are not included in the victim category,
with the exception of children and youth who demobilised while still minors. The
threshold of proof to access reparations has been significantly reduced in favor
of the victim, compared to previous schemes.
The Victims’ Law established new institutions for developing and imple-
menting a national reparations program that includes the five forms of repa-
rations set forth in the UN Basic Principles. The new institutions include two
specialised units for reparations and land restitution, a national registry of vic-
tims, a national system for victims’ reparations, a national registry for usurped
lands, and a centre for historical memory.
The restitution program is guided by the principles of differential treat-
ment, progressiveness, gradual implementation, and the rights to truth, justice,
and integral reparation, among others. The law is explicit about the scope of
victims’ rights, specifically mentioning ‘the right to truth, justice and reparation’
and ‘the right to return to one’s place of origin or relocate out of free will, in
conditions of security and dignity’. According to the law, formal owners, persons
in possession of the land, or those using state lands who have been disposed or
forced to abandon the land due to the armed conflict after the cut-off date are
entitled to the right of restitution of land and property. The law also establishes
the categories of abandonment and dispossession as bases for restitution, iden-
tifying restitution as the preferred form of reparation for victims. Restitution
encompasses the return of the property lost, as well as the formalisation of
legal entitlements (formal property rights). The law envisages the possibility of
monetary compensation or relocation to land/property of similar characteristics
to that which was lost only as a secondary measure and in cases where material
restitution is not feasible.

38 Official figures by 30 September 2019 from the National Victims’ Registry, Number of victims
by type of victimization (Víctimas por Hecho Victimizante – Fecha Corte 30/09/2019) <www.
unidadvictimas.gov.co/es/registro-unico-de-victimas-ruv/37394>.
 RepaRatIons 213

One particular feature of the Victims’ Law is its gender focus. To protect
women’s access to land and enhance gender equality, Law 1448 establishes pref-
erential treatment for women in the process of land restitution. Such preferential
treatment encompasses prioritisation of cases when the applicant is a woman,
the general mainstreaming of gender perspectives in the administrative and
judicial process, and other additional benefits.
While the restitution process requires a concerted effort, the agency
responsible for moving the process forward is the specifically created Land
Restitution Unit (URT), whose mandate is to design, administer, and preserve a
national register of abandoned and usurped lands; to gather all information and
evidence of dispossession and abandonment for land and property registered
by restitution claimants; to process restitution claims and formalisation proce-
dures for abandoned lands, as well as to represent claimants before the judicial
restitution authorities; and to administer compensation payments for claimants
in cases where restitution is not possible. The financial costs associated with
implementation of the Victims’ Law are obviously high yet planned to be covered
by state funds.
Land and property restitution is an extremely complex issue in Colom-
bia, both for technical and administrative reasons and because of the strong
economic and political interests at stake. The coexistence of several forms of
property and tenure, incomplete cadastral records, parallel registration sys-
tems, multiple registrations, and claims to the same property both concur-
rently and over time are among the many factors affecting implementation.
Coercive practices of land expropriation and usurpation are often legalised
through formal and judicial channels. The task is complicated by the pres-
ence of strong economic actors and activities on disputed lands. In addition,
security challenges both to returning populations and to community lead-
ers making restitution claims threaten progress in implementation of these
measures.39
The Victims’ Law precedes the peace talks and the 2016 Peace Agree-
ment between the Colombian government and the FARC guerrillas. The issue
of victims’ rights was a central part of the agreement, focusing mostly on the
right to justice and the right to truth. With regard to victim reparations, the
agreement supported the continuous implementation of the Victims’ Law and
its programs. The issue of land is recognised by most actors as key for the
prospects of durable peace in Colombia. This reflected in the peace agreement,
which envisaged a Comprehensive Rural Reform, including the creation of a
Territory-based Development Program (Programas de Desarrollo con Enfoque
Territorial, or PDET), to support rural development in the areas most affected
by the armed conflict.40

39 Jemima García-Godos and Henrik Wiig, ‘Ideals and Realities of Restitution: The Colombian Land
Restitution Program’ (2018) 10 (1) Journal of Human Rights Practice 40–57.
40 PDET website <www.renovacionterritorio.gov.co/especiales/especial_PDET/index.html>.
214 JemIma GaRCía-Godos

9.12 discussion and tutorial questions

Read the IOM report Reparations for Wartime Victims in the Former Yugosla-
via: In Search of the Way Forward (2013) (see suggested readings). The report
provides a good example of a policy input for discussions and political decision
making about reparations for victims of international crimes – genocide, crimes
against humanity and war crimes committed during the Yugoslav wars. Discuss
with your classmates the following points:

1) What are the criteria used to identify victims and beneficiaries in the report?
2) Are there any groups that fall outside the category of victim proposed by the
report? If yes, who are these and why do you think this is so?
3) What types of reparations are suggested for implementation in the report?
4) Are there some forms of reparations that are not addressed by the report? Do
you agree with this selection? Explain why.
5) The wars in Former Yugoslavia took place 20 years ago. Why do you think
there is still a need to discuss victim reparations in this particular context?
6) The report was published in 2013. Do a web search and update yourself on
the progress (or lack of progress) on victim reparations in the Balkan region.
Present this update in class.

suggested reading
de Feyter, Koen, Stephan Parmentier, Marc Bossuyt, and Paul Lemmens (eds), Out
of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Viola-
tions (Intersentia, 2005).
de Greiff, Pablo (ed), The Handbook of Reparations (Oxford University Press, 2006).
du Plessis, Max and Stephen Peté (eds), Repairing the Past? International Perspec-
tive on Reparations for Gross Human Rights Abuses (Intersentia, 2007).
Elster, Jon (ed), Retribution and Reparation in the Transition to Democracy (Cam-
bridge University Press, 2006).
Miller, Jon and Rahul Kumar (eds), Reparations: Interdisciplinary Inquiries (Oxford
University Press, 2007).
Rubio-Marín, Ruth (ed), What Happened to the Women? Gender and Reparations for
Human Rights Violations (Social Science Research Council, 2006).
Salazar, Katya (ed), Current Challenges in Seeking Justice for Serious Crimes of the
Past (2013) 18 Aportes DPLF <http://dplf.org/sites/default/files/aportes_18_
english_web_final_6_0.pdf>.
Torpey, John, Making Whole What Has Been Smashed: On Reparations Politics (Har-
vard University Press, 2006).
 RepaRatIons 215

Van der Auweraert, Peter and Igor Cvetkovski, Reparations for Wartime Victims in
the Former Yugoslavia: In Search of the Way Forward (June 2013) International
Organization for Migration <www.iom.int/files/live/sites/iom/files/What-We-
Do/docs/Reparations-for-Wartime-Victimes-in-the-Former-Yugoslavia-In-
Search-of-the-Way-Forward.pdf>.
Wemmers, Jo-Anne M (ed), Reparation for Victims of Crimes against Humanity: The
Healing Role of Reparation (Routledge, 2014).
Wilson, Richard A and J Mitchell, ‘Introduction: The Social Life of Rights’ in Richard
A Wilson and J Mitchell (eds), Human Rights in Global Perspective: Anthropo-
logical Studies of Rights, Claims and Entitlements (Routledge, 2003).
United Nations, Special Rapporteur on the Promotion of Truth, Justice, Reparation
and Guarantees of Non-Recurrence (1 May 2012) Office of the High Commis-
sioner on Human Rights <www.ohchr.org/EN/Issues/TruthJusticeReparation/
Pages/Index.aspx>.

other resources
European Forum for Restorative Justice website <www.euforumrj.org/>.
Impunity (Directed by Juan José Lozano, Arte, Dolce Vita Films, Intermezzo Films
SA, 2010) <http://beamafilm.com/Impunity/#.Ve2Ymv7otaQ>: This documen-
tary focuses on the Colombian process of transitional justice initiated in 2005
by the Law of Justice and Peace.
The Look of Silence (Directed by Joshua Oppenheimer, Anonymous, Final Cut
for Real, Making Movies Oy, 2015) <http://artery.wbur.org/2015/07/29/
look-of-silence>.
The Mothers of Plaza De Mayo (Directed and produced by Susana Blaustein Muñoz
and Lourdes Portillo, 1985) <www.wmm.com/filmCatalog/pages/c85.shtml>.
Paying for Justice (Directed by Guy Meroz and Orli Vilnai-Federbush, produced by
Ori Dickstein, 2007) <www.ruthfilms.com/films/docs/holocaust/paying-for-
justice.html>.
Reparation – Brazilian Documentary (Daniel Moreno, Terranova Filmes, 2012) <www.
youtube.com/watch?v=CgBsRvPt00I>.

Bibliography
Barkan, Elazar, The Guilt of Nations: Restitution and Negotiating Historical Injustices
(Norton, 2000).
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of Inter-
national Humanitarian Law, GA Res 147, UN GA, 60th sess, 64th plen mtg, Agenda
Item 71(a), UN Doc A/RES/60/147 (adopted and proclaimed 16 December 2005).
Bassiouni, Cherif, ‘Accountability for Violations of International Humanitarian Law
and Other Serious Violations of Human Rights’ in MC Bassiouni (ed), Post-
Conflict Justice (Transnational Publishers, 2002) ch 1.
216 JemIma GaRCía-Godos

Carrillo, Arturo J, ‘Justice in Context: The Relevance of Inter-American Human

Rights Law and Practice to Repairing the Past’ in Pablo de Greiff (ed), The
Handbook of Reparations (Oxford University Press, 2006) ch 14.
Committee Against Torture, General Comment No 3, UN Doc CAT/C/GC/3 (19
November 2012).
de Greiff, Pablo (ed), The Handbook of Reparations (Oxford University Press, 2006).
de Greiff, Pablo, ‘Justice and Reparations’ in Pablo de Greiff (ed) The Handbook of
Reparations (Oxford University Press, 2006) ch 12.
de Greiff, Pablo, ‘Repairing the Past: Compensation for Victims of Human Rights
Violations’ in Pablo de Greiff (ed), The Handbook of Reparations (Oxford Univer-
sity Press, 2006) Introduction.
Elster, Jon, Closing the Books: Transitional Justice in Historical Perspective (Cam-
bridge University Press, 2004).
Falk, Richard, ‘Reparations, International Law, and Global Justice: A New Frontier’
in Pablo de Greiff (ed) The Handbook of Reparations (Oxford University Press,
2006) ch 13.
García-Godos, Jemima, ‘Victim Reparations in Transitional Justice – What Is at
Stake and Why’ (2008) 26(2) Norwegian Journal of Human Rights 111–130.
García-Godos, Jemima and Knut Andreas O Lid, ‘Transitional Justice and Victims’
Rights before the End of a Conflict: The Unusual Case of Colombia’ (2010)
42(3) Journal of Latin American Studies 487–516.
García-Godos, Jemima and Henrik Wiig, ‘Ideals and Realities of Restitution: The
Colombian Land Restitution Program’ (2018) 10(1) Journal of Human Rights
Practice 40–57.
Minow, Martha, Between Vengeance and Forgiveness: Facing History after Genocide
and Mass Violence (Beacon Press, 1998).
Roht-Arriaza, Naomi, ‘The New Landscape of Transitional Justice’ in Naomi Roht-
Arriaza and Javier Mariezcurrena (eds), Transitional Justice in the Twenty-
First Century: Beyond Truth versus Justice (Cambridge University Press, 2006)
Introduction.
Roht-Arriaza, Naomi, ‘Reparations in the Aftermath of Repression and Mass Vio-
lence’ in Eric Stover and Harvey M Weinstein (eds), My Neighbor, My Enemy:
Justice and Community in the Aftermath of Mass Atrocity (Cambridge University
Press, 2004) ch 6.
Rush, Peter and Olivera Simić (eds), The Arts of Transitional Justice: Culture, Activ-
ism, and Memory after Atrocity (Springer-Verlag New York, 2014).
Shelton, Dinah, ‘The United Nations Draft Principles on Reparations for Human
Rights Violations: Context and Content’ in Marc Bossuyt and Paul Lemmens
(eds), Out of the Ashes: Reparation for Victims of gross and Systematic Human
Rights Violations (Intersentia, 2005) ch 1.
Skaar, Elin, Siri Gloppen, and Astri Suhrke (eds), Roads to Reconciliation (Lexington
Books, 2005).
 RepaRatIons 217

Tomuschat, Christian, ‘Individual Reparation Claims in Instances of Grave Human

Rights Violations: The Position under General International Law’ in Albert
Randelzhofer and Christian Tomuschat (eds), State Responsibility and the Indi-
vidual: Reparation in Instances of Grave Violations of Human Rights (Martinus
Nijhoff Publishers, 1999) ch 1.
Torpey, John, ‘Victims and Citizens: The Discourse of Reparation(s) at the Dawn of
the New Millennium’ in Koen de Feyter, Stephan Parmentier, Marc Bossuyt,
and Paul Lemmens (eds), Out of the Ashes: Reparation for Victims of Gross and
Systematic Human Rights Violations (Intersentia, 2005) ch 2.
Uprimny, Rodrigo and Maria Paula Saffon, ‘Reparaciones Transformadoras, Justi-
cia Distributiva y Profundización Democrática’ in Catalina Díaz, Nelson Camilo
Sánchez, and Rogrigo Uprimny (eds), Reparar en Colombia: Los dilemas en con-
texto de conflicto, pobreza y exclusión (ICTJ – DeJusticia, 2009) 31–69.
van Boven, Theo, Final Report of the Special Rapporteur: Study Concerning the Right
to Restitution, Compensation and Rehabilitation for Gross Violations of Human
Rights and Fundamental Freedoms, UN Doc E/CN.4/Sub.2/1993/8 (2 July 1993).
Waldorf, Lars, ‘Anticipating the Past: Transitional Justice and Socio-Economic
Wrongs’ (2012) 21(2) Social and Legal Studies 171–186.
Wilson, Richard A, ‘Representing Human Rights Violations: Social Contexts and
Subjectivities’ in Richard A Wilson (ed), Human Rights, Culture and Context:
Anthropological Perspectives (Routledge, 1997) ch 6.
Chapter 10

Transitional justice and

peacebuilding

Lia Kent

10.1 Introduction and definitions

Transitional justice is increasingly viewed as an essential component of peace-
building. It is now incorporated into the mandates of many United Nations (UN)
peace operations, and efforts to achieve justice, peace and democracy are treated
by the UN as ‘mutually reinforcing imperatives’.1 Indeed, it is apparent that, since
the 1990s, the UN and other international organisations have placed the promo-
tion of transitional justice alongside human rights, the rule of law, good gover-
nance and democratisation as a key element of peacebuilding and reconstruction
interventions in post-conflict societies. This has been accompanied by efforts to
develop more coordinated and integrated approaches to peacebuilding and tran-
sitional justice. At the same time, critical peacebuilding scholars sound a note of
caution about the enmeshment of transitional justice within peacebuilding. They
point to the liberal assumptions that underpin these interventions which, they
argue, might undermine the prospects for sustainable peace.
This chapter begins with an overview of the emergence and expansion of
peacebuilding, and examines the growing consensus that justice is essential to
long-term peace. It then highlights several tensions between the goals of peace-
building and transitional justice which complicate the view that justice and peace
are mutually reinforcing. It shows how this view is further challenged by the
emerging critique of liberal peacebuilding, a key aspect of which is concerned
with how the externally devised and imposed nature of these interventions leaves
limited space for local actors to construct their own vision of peace. This, in turn,

1 UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict
Societies, UN Doc S/2004/616 (23 August 2004) 1.
220 LIA KENT

has implications for both the legitimacy and sustainability of that peace. Building
on the insights generated through this critique, the chapter’s conclusion offers
some suggestions as to how both transitional justice and peacebuilding might be
reconceptualised.

10.2 Historical overview: the evolution of

peacebuilding and transitional justice
The term ‘peacebuilding’is generally thought to have entered into policy discourse
following the publication of UN Secretary-General Boutros Boutros-Ghali’s 1992
seminal report, An Agenda for Peace. The report, which defined peacebuilding
as ‘action to identify and support structures which will tend to strengthen and
solidify peace in order to prevent a relapse into conflict’, marked a major shift in
the international community’s approach towards managing conflict.2 In essence,
this new approach went beyond an emphasis on simply bringing direct conflict to
an end and recognised that laying the foundations for sustainable peace called for
a wide range of activities to rebuild conflict-affected communities, consolidate
peace and prevent a recurrence of violence.
The publication of An Agenda for Peace, and the associated shifts in think-
ing about how conflict should be responded to, occurred against the backdrop of
the end of the Cold War. This had ushered in a sense of new optimism about the
potential for the UN Security Council to reach consensus on proposals to deploy
new peace operations. Nonetheless, this optimism was also tinged by an emerg-
ing recognition that the nature of armed conflict had changed. Specifically, while
there had been a decline in interstate conflict (conflict between sovereign states),
intrastate conflict – conflict taking place within the borders of a single state –
remained a significant problem. According to some analysts, intrastate conflict
accounted for 94 percent of all armed conflicts in the 1990s.3
The unique features of intrastate conflict posed a number of specific, and pro-
found, challenges to the ways in which conflict had been traditionally understood
and managed. It was recognised, for instance, that an overwhelming number of
victims of intrastate conflicts were civilians. Another issue was that in the after-
math of intrastate conflicts, people representing different sides of the conflict are
required to live together in a single jurisdiction rather than retreating to an interna-
tionally determined frontier as in interstate conflicts. Another, more strategically

2 See Boutros Boutros-Ghali, An Agenda for Peace: Preventative Diplomacy, Peacemaking and
Peace-Keeping, UN Doc A/47/277-S/2411 (31 January 1992) para. 21.
3 Peter Wallensteen and Margareta Sollenburg, ‘Armed Conflict 1989–1999’ (2000) 37 (85) Journal
of Peace Research 632.
 TRANSITIONAL JUSTICE AND PEACEBUILDING 221

driven, concern was that ‘weak, failing and conflict-prone states’ might pose a
threat to regional or global security.4 Given these concerns, and an emerging reali-
sation that traditional peace operations had not always been effective in fostering
long-term peace, the UN increasingly began to develop multifaceted approaches
to peacebuilding that aimed to address ‘underlying economic, social, cultural and
humanitarian problems’ that might contribute to ongoing instability.5
The 1990s thus saw the rapid expansion of peacebuilding missions in con-
flict-affected states. These missions involved a wide variety of actors, including
various sections of the UN, the World Bank and NGOs, and promoted a broad set
of programs and activities. Unlike the so-called traditional peacekeeping missions
of the Cold War era, which had been expected to avoid intervening in the domestic
political sphere, the mandates of these new ‘multidimensional peace operations’
encompassed aspects of peacebuilding and state-building (that is, the rebuilding
of institutions of governance) on the basis that states required viable and func-
tioning state authority and institutions to become stable. In addition to providing
support for ceasefires, these missions engaged in efforts to demobilise former
combatants and reintegrate them into society, reform the formal security sector,
repatriate or resettle refugees, stabilise the economy, strengthen public service
delivery and monitor or organise elections. They were also responsible for vari-
ous rule of law initiatives, such as efforts to strengthen institutions of justice and
police forces, draft or amend constitutions and, increasingly, support transitional
justice mechanisms such as courts (international, national and ‘hybrid’) and truth
commissions. To develop a more integrated approach to peacebuilding, the UN
established a Peacebuilding Commission in 2005.
Just as the domain of peacebuilding expanded in the 1990s and began to
encompass rule of law and transitional justice interventions, the domain of tran-
sitional justice also expanded. As Jeffery and Kim note, the ‘transitions’ included
within the scope of transitional justice began to encroach into areas that had tra-
ditionally been thought of as being within the domain of peacebuilding.6 A key
shift was that, in line with the growing international awareness of the changing
nature of conflict, not only were transitions from repressive regimes to demo-
cratic societies considered within the parameters of transitional justice (such as
the transitions that took place in the 1980s in Latin America), but also shifts from

4 Dustin Sharp, ‘Beyond the Post-Conflict Checklist: Linking Peacebuilding and Transitional Jus-
tice through the Lens of Critique’ (2013) 14(1) Chicago Journal of International Law 165, 172.
5 Ibid.
6 Renee Jeffery and Hun Joon Kim, ‘Introduction: New Horizons: Transitional Justice in the Asia
Pacific’ in Renee Jeffery and Hun Joon Kim (eds), Transitional Justice in the Asia-Pacific (Cam-
bridge University Press, 2014) 5.
222 LIA KENT

conflict to peace associated with the end of intrastate civil wars and periods of
violent instability. A simultaneous reconceptualisation of both transitional justice
and peacebuilding thus occurred. As peacebuilding was redefined to ‘include the
pursuit of justice as a key priority’, transitional justice expanded to include transi-
tions from conflict to peace in addition to transitions from authoritarian rule to
democracy.7 These shifts began to lead to calls for peacebuilding and transitional
justice programs to be better coordinated and integrated with one another.

10.3 Purpose, aims and assumptions

Arguments for improving coordination between transitional justice and peace-
building are based on several assumptions. Key amongst these is that the idea that
establishing accountability for conflict-related human rights violations is essential
to a sustainable peace. This assumption, which is reflected in the UN’s 2004 report
The Rule of Law and Transitional Justice in Post-Conflict Societies, suggests that
the vigorous and dichotomous ‘peace versus justice’ debate that characterised the
early years of scholarship on transitional justice in the 1990s has abated. This
debate, which pivoted around ‘whether or not new democracies should “prosecute
or punish” […] [or] “forgive and forget” crimes committed by members and sup-
porters of past authoritarian regimes’, saw questions asked about whether some
form of compromise with powerful perpetrators – including by offering them
amnesties – might be necessary to secure a lasting peace. Debates also emerged
about whether trials might have a destabilising impact on newly democratising
societies.8 Replacing this dichotomous view was an apparent consensus that the
choice between ‘peace’ and ‘justice’ was a false one as the maintenance of peace
in the long term cannot be achieved unless there is redress for grievances.
Arguments about the mutually reinforcing nature of peace and justice have
become familiar in the peacebuilding and transitional justice literature. At least
four interrelated arguments are evident. First, it is argued that criminal prosecu-
tions of perpetrators of human rights abuses will help to prevent and deter future
violence by signalling an end to a culture of impunity and the emergence of a new
political order founded upon the rule of law.9 Second, it is claimed that the pro-
duction of an authoritative historical record of the conflict by a truth commission
will help to counter denial about the past and, in the process, make it difficult for
the propagation and circulation of ‘violence-generating myths’ that may foment

7 Ibid.
8 Ibid.
9 Professionals in Humanitarian Assistance and Protection, Transitional Justice and Peacebuilding
Processes (July 2009) Peacebuilding Initiative <www.peacebuildinginitiative.org/>.
 TRANSITIONAL JUSTICE AND PEACEBUILDING 223

violence against targeted sections of society.10 Third, it is said that transitional

justice will contribute to reconciliation by channelling desires for retribution and
preventing popular eruptions of revenge and retaliation. Fourth, it is argued that
transitional justice will help to foster trust among citizens and build renewed trust
in state institutions.
The emergence of the view that justice is essential to durable peace has gone
hand in hand with a recognition that ‘no single transitional justice mechanism
alone can address a post-conflict society’s array of complex need and realities.’11
Rather than simply equating transitional justice with prosecutions, it is now
argued that a range of tools, including trials, truth commissions, reparations, lus-
tration, and even amnesties and pardons, might be needed, and can complement
each other. Terms such as ‘sequencing’ and ‘complementarity’ have thus entered
into the policy discourse. Complementarity encompasses the idea that some tran-
sitional justice interventions might provide the necessary support for others, while
sequencing encompasses the idea that some transitional justice measures may
need to be put in place before others as not all such measures will contribute to
peacebuilding at all times.
The argument for ‘sequencing’ is often made in respect to criminal prosecu-
tions. Specifically, it is contended that during the early, fragile, stages of peace-
building, it might not always be possible to conduct prosecutions and that other
mechanisms, such as truth commissions, might be more appropriate at these times,
and can help to facilitate later prosecutions. For instance, the reports of truth
commissions can help expose patterns of violations and raise awareness about
the rights of victims that can be useful in later trial proceedings. Even amnes-
ties (which prohibit retributive action against those who have committed criminal
acts) are sometimes thought to play an initial stabilising role during a vulnerable
period of transition, after which trials might be possible.

10.4 Points of contention and controversy

Despite the rhetoric that justice and peace are mutually reinforcing, there is an
inherent friction between some of the goals of peace-building and those of transi-
tional justice. Indeed, the ‘peace versus justice’ debate of the 1990s never entirely
disappeared.
From a peacebuilding perspective, concerns are often raised that transitional
justice initiatives – in particular, prosecutions – might undermine fragile peace

10 Ibid.
11 Ibid.
224 LIA KENT

agreements. The threat of prosecutions may create an obstacle to former combat-

ants laying down their weapons or could lead those responsible for human rights
violations to enact coups or take up arms once more.12 In some cases, as occurred
in Timor-Leste, it is argued that the threat of prosecutions may prevent refugees
returning to countries from which they have fled. A related concern is that, rather
than promoting peace, criminal trials might work to entrench existing divisions in
society. This point has been made in relation to the arrests and judgements of war
criminals by the International Criminal Tribunal for Yugoslavia which, some sug-
gest, led to an increase rather than a reduction in hostility between ethnic groups.13
An example of how friction between transitional justice and peacebuilding
goals can manifest is evident in the case of demobilisation, demilitarisation and
reintegration (DDR) programs, which are often implemented as part of peace-
building interventions. These programs aim to remove weapons from former
combatants and assist them to integrate into society through the provision of train-
ing and education and often material benefits. As some scholars have pointed out,
DDR programs and transitional justice mechanisms are oriented towards very
different constituencies. While transitional justice is thought to be concerned with
victims, DDR programs focus on combatants. Given these differences, tensions
may arise if the provision of reinsertion and reintegration of benefits for former
combatants are high compared to victims’ reparations programs, or if beneficia-
ries of DDR benefits are perceived to be perpetrators of serious crimes during
the conflict. These tensions emerged in Sierra Leone.14 Conversely, as occurred
in Timor-Leste, veterans may oppose reparations payments to victims who are
perceived to have supported the ‘wrong’ side.15
The ability of transitional justice to contribute to long-term peace is also
constrained by practical problems. For domestic trials to be effective, infrastruc-
ture and human resources must be available. This is often rare in post-conflict

12 See Chandra Lekha Sriram, ‘Justice as Peace? Liberal Peacebuilding and Strategies of Transitional
Justice’ (2007) 21(4) Global Society 579, 587.
13 James Meernik, ‘Justice and Peace? How the International Criminal Tribunal Affects Societal
Peace in Bosnia’ (2005) 42(3) Journal of Peace Research 287.
14 Sharp, ‘Beyond the Post-Conflict Checklist’, n 4, 187–188. See also Rosalind Shaw, ‘Linking
Justice with Reintegration: Ex-Combatants and the Sierra Leone Experiment’ in Rosalind Shaw
and Lars Waldorf (eds), Localizing Transitional Justice: Interventions and Priorities after Mass
Violence (Stanford University Press, 2010) 111, 113; Jeremy Ginifer, ‘Reintegration of Ex-Com-
batants’ in Mark Malan et al (eds), Sierra Leone: Building the Road to Recovery (Institution for
Security Studies, 2003) 39.
15 Eva Ottendorfer, ‘Contesting International Norms of Transitional Justice: The Case of Timor
Leste’ (2013) 7(1) International Journal of Conflict and Violence 32. See also Lia Kent, ‘After
the Truth Commission: Gender and Citizenship in Timor-Leste’ (2016) 17(1) Human Rights
Review 51.
 TRANSITIONAL JUSTICE AND PEACEBUILDING 225

situations, where judiciaries may be weak or non-existent, trained lawyers and

judges are lacking and legal systems may have collapsed. Moreover, criminal
trials, even when successful, will only ever be able to address a small number of
human rights violations by prosecuting a small number of individuals. There is,
furthermore, the added issue that in resource-poor post-conflict settings, there is
often competition over limited resources (or at the very least, the appearance of
competition). Transitional justice processes may be criticised for being too expen-
sive in the context of completing economic and social development priorities.
Beyond these dilemmas, which underscore the continuation of the peace ver-
sus justice debate, a more foundational critique of the liberal assumptions that
underpin both peacebuilding and transitional justice interventions has emerged in
recent years. Contemporary peacebuilding is sometimes described as liberal (or
neo-liberal) peacebuilding because it is based on the twin assumptions that liber-
ally constituted societies are more peaceful than illiberal states and that a sustain-
able peace will best be accomplished by fostering a liberal democracy (through
periodic elections), functioning public institutions and an open market economy.16
Put simply, liberal peacebuilding might be thought of as based on an underlying
narrative of ‘transition’ that suggests that ‘weak, failing, and conflict-prone states’
can be ‘relocated from a sphere of conflict to a sphere of peace through a process
of political, social and economic liberalization’.17
There are two key strands of the critique of liberal peacebuilding. The first is
concerned with the inappropriateness of promoting liberal democracy and market
economics in volatile and unstable post-conflict societies. It is argued that sources
of instability, which do not simply disappear once an international peacebuild-
ing operation is in place, may be exacerbated by the introduction of initiatives to
promote a state’s rapid integration into a global economy.18 This is particularly the
case in societies that have little experience with market economies, and where the
state itself may have limited power. In these fragile post-conflict environments,
states may struggle to manage the inequalities and social dislocation that results
from opening their markets to the global economy. Rapid political and economic
liberalisation also has the potential to exacerbate social and political tensions and
to increase the likelihood of renewed violence.19

16 Edward Newman, Roland Paris, and Oliver P Richmond, ‘Introduction’ in Edward Newman,
Roland Paris, and Oliver P Richmond (eds), New Perspectives on Liberal Peacebuilding (United
Nations University Press, 2009) 11. See also Jeffery and Kim, n 6.
17 Dustin Sharp, ‘Emancipating Transitional Justice from the Bonds of the Paradigmatic Transition’
(2015) International Journal of Transitional Justice 9 (1) 153.
18 Sriram, ‘Justice as Peace?’, n 12, 586.
19 Roland Paris, At War’s End: Building Peace after Civil Conflict (Cambridge University Press,
2004) 5.
226 LIA KENT

The second, related, strand of the critique of liberal peacebuilding is con-

cerned with how peacebuilding interventions have come to be understood as
comprising a standardised package of narrowly focused and externally devised
programs that are implemented in a top-down manner. This critique is also appli-
cable to transitional justice measures, which increasingly comprise a key part
of peacebuilding interventions. For instance, it suggested that transitional justice
measures are based on a standardised ‘tool kit’ (comprising trials, truth commis-
sions and other rule of law programs). Post-conflict states are now ‘expected,
encouraged and even coerced’ to accept these measures on the basis that this will
facilitate their ‘transition’ and transformation into peaceful, liberal democracies.20
Critics argue that the standardised or ‘one-size fits all’ approach to transi-
tional justice for peacebuilding is problematic in five key respects. First, it leads
to a tendency for policy makers to promote their interventions as ‘technical’ inter-
ventions that are short term in nature and are transferable to a wide variety of
places.21 This approach pays little regard to local context, including the complex
underlying economic, social and institutional legacies (including colonial lega-
cies) that affect the ability of many post-conflict states to become stable democra-
cies. Some of these legacies include deep-seated structural inequalities that often
underlie, and contribute to, violent conflict and which do not end with the signing
of a peace accord or the arrival of a UN peace mission. The tendency to overlook
structural inequalities is exacerbated by the preoccupation of transitional justice
mechanisms – and criminal justice processes in particular – with questions of
individual accountability, which leads to the marginalisation of questions of social
or distributive justice.
A second reason why standardised approaches to transitional justice are prob-
lematic is that they obscure the politics entailed in their establishment. Transitional
justice interventions are inevitably the product of compromise, limited choice and
conflicting policy agendas between and amongst international, national and local
actors. This is nowhere more evident than in the case of criminal prosecutions.
Not only is a successful prosecutorial approach dependent on the willingness
of post-conflict states to pursue high-profile perpetrators, but powerful Western
states also exert a disproportionate influence over whether and how criminal pros-
ecutions take place.22 These political dynamics were apparent in in Timor-Leste,

20 Jelena Subotic, Hijacked Justice: Dealing with the Past in the Balkans (Cornell University Press,
2009) 21.
21 Lia Kent, The Dynamics of Transitional Justice: International Models and Local Realities in East
Timor (Routledge, 2012) 31.
22 Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections’ (2008) 29(2) Third
World Quarterly 275–289.
 TRANSITIONAL JUSTICE AND PEACEBUILDING 227

where, despite the UN’s rhetoric about the need to bring those responsible for
human rights violations to justice, there was little appetite among members of
the UN Security Council to establish an international criminal tribunal to pros-
ecute Indonesian war crimes, in part because of Indonesia’s status as a key ally
of Western states in the so-called war on terror. This led not only to the establish-
ment of a hybrid tribunal that was hamstrung in its prosecutorial efforts but also
influenced the East Timorese leadership’s prioritisation of ‘development’ goals
over prosecutions.
Third, it is argued that standardised transitional justice interventions overlook
questions of ‘local ownership’, undermining their legitimacy and therefore their
ability to contribute to sustainable peace. The argument here is quite simply that
if transitional justice interventions are perceived as imposed rather than as locally
generated, they may be viewed as distant and foreign, and ‘lose their legitimacy
and efficacy’.23 These dynamics have been particularly apparent in relation to the
two international criminal tribunals, the International Criminal Tribunal for the
former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR). As some studies have shown, accusations of bias continue to be made by
parts of the population in Serbia and the Bosnian Republika Srpska against the
ICTY, which is regarded as a distant mechanism imposed from outside.24 Further
exacerbating these issues has been the lack of communication between the ICTY
and its local publics, and the fact that, during the first years of the ICTY’s exis-
tence, trials and public declarations were published exclusively in English.25
Fourth, it is argued that the promotion of top-down institutionalised tran-
sitional justice interventions has the potential to overlook the extent to which
conceptions of justice and peace vary across societies. There is growing aware-
ness that transitional justice mechanisms transplanted into societies with different
legal cultures, experiences and histories, and expectations and understandings of
justice, may simply not be effective.26 In societies where a large percentage of the
population does not have access to formal state justice systems, issues such as col-
lective wellbeing and compensation for victims might be prioritised over punish-
ment of perpetrators through a formal justice process. A related concern is that in

23 Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman, ‘Guidance Paper: Evaluating
and Comparing Strategies of Peacebuilding and Transitional Justice’ (Working Paper No 2, Centre
on Human Rights in Conflict, May 2009) 19.
24 See, eg, Julie Mertus, ‘Findings from Focus Group Research on Public Perceptions of the ICTY’
(2007) 55(1) Südosteuropa 107–117; Martina Fischer and Ljubinka Petrovic-Ziemer, ‘Dealing
with the Past in the Western Balkans: Initiatives for Peacebuilding and Transitional Justice in
Bosnia-Herzegovina, Serbia and Croatia’ (Berghoff Report No 18, Berghoff Foundation, 2013).
25 Mertus, n 24.
26 See Lars Waldorf (in this collection).
228 LIA KENT

societies where resources are scarce, local populations may view punishment by
a formal justice system differently from populations in well-resourced societies.
In Rwanda, for example, locals complained that ‘suspected war criminals [were]
living better lives in their UN-standard prisons than the victims back home’.27
Similar complaints have been heard in Timor-Leste, where it is commonly per-
ceived that perpetrators ‘become fat’ in prison – normally a privilege of the rich.28
Finally, it is argued that a focus on institutionalised justice may undercut
and potentially even stifle local or indigenous justice and peacemaking practices.
As Lars Waldorf observes, while local justice practices exist in many societies,
they are especially pronounced in parts of the Global South where precolonial
legal orders pre-existed colonial regimes.29 These practices, which may comprise
both dispute resolution and healing rituals, can play an important function in the
restoration of social order. The tendency of institutionalised transitional justice
to stifle local practices has been observed in the context of the Australian-led
Regional Assistance Mission to the Solomon Islands (RAMSI). As described by
Allen and Dinnen, the decision taken by RAMSI to devote a substantial amount
of resources and energy to prosecuting alleged perpetrators of crimes committed
during the ‘tensions’ led to a focus on individual culpability which, among other
things, had the effect of leaving ‘little scope for alternative approaches including
those founded on local knowledge and practice’.30 This neglect has led to ongoing
tensions between the law enforcement approach espoused by RAMSI and locals
who demand greater engagement with indigenous peacemaking.31

Case study A: Timor-Leste

The case of Timor-Leste not only illustrates the tensions that may arise between
the pursuit of justice and peace goals but also supports the critique of liberal
peacebuilding. In the aftermath of the UN-sponsored referendum on self-deter-
mination in 1999, which ended a quarter-century of oppressive Indonesian occu-
pation of the territory, the UN Security Council established the UN Transitional

27 Rama Mani, ‘Rebuilding an Inclusive Political Community after War’ (2005) 36(4) Security Dia-
logue 517.
28 Tanja Chopra, Christian Ranheim, and Rod Nixon, ‘Local-Level Justice under Transitional
Administration: Lessons from East Timor’ in Deborah Isser (ed), Customary Justice and the Rule
of Law in War-Torn Societies (United States Institute for Peace, 2011) 119, 139.
29 Lars Waldorf (in this collection).
30 Matthew Allen and Sinclair Dinnen, ‘The North Down Under: Antinomies of Conflict and Inter-
vention in Solomon Islands’ (2010) 10(3) Conflict, Security and Development 299.
31 Ibid.
 TRANSITIONAL JUSTICE AND PEACEBUILDING 229

Administration for East Timor (UNTAET), in October 1999, to administer the ter-
ritory until the nation gained its formal independence in 2002.
UNTAET encountered a challenging context in which much of the territory’s
infrastructure had been destroyed, more than 1,000 people had been killed dur-
ing the violence of 1999 (and up to a third of the population had perished dur-
ing the Indonesian occupation), there were no functioning courts or practicing
judges, and hundreds of thousands of refugees remained across the border in
Indonesian West Timor. Moreover, centuries of colonialism and occupation had
left a legacy of widespread impoverishment and mistrust amongst the popu-
lation. To respond to these challenges, UNTAET was given an unprecedented
state-building mandate. In accordance with liberal peacebuilding tenets, tran-
sitional justice – and, in particular, prosecutions – were promoted as necessary
to sustainable peace. UNTAET established a specialised investigations unit and
an internationalised or ‘hybrid’ tribunal known as the Special Panels for Serious
Crimes (SPSC) that was mandated to hear cases of serious crimes.32
Despite UNTAET’s stated emphasis on prosecutions, tensions soon emerged
both within the UN and between UNTAET and the East Timorese leadership over
the relative priority to be accorded to justice goals over other concerns, such as
the need to ensure the security of Timor-Leste’s borders, repatriate refugees
and attend to the territory’s urgent developmental needs. Geopolitical factors,
such as Indonesia’s power in the region and its strategic value to Western states
in the so-called war on terror, also came into play in transitional justice decision-
making. As a consequence, the hybrid SPSC was both politically compromised
and under-resourced, and was unable to prosecute suspects based in Indonesia
(among them, senior members of the Indonesian military).
UNTAET’s initial approach to transitional justice also took little account of
East Timorese experiences, understandings and expectations of justice, including
the extent to which local dispute resolution practices remained widespread and
the state justice system was, for many in the rural areas, perceived as remote,
cumbersome and inaccessible.33 As a consequence, there was little local under-
standing of, or engagement with, the SPSC. Many of those who did come before
the court as witnesses were frustrated that it did not respond to their desires for
practical, economic assistance to address their ongoing material hardships. The
court’s lack of an effective outreach strategy also meant that few were aware of
trial outcomes.34
Some two years later, however, UNTAET established a new, and more inno-
vative, transitional justice mechanism. This was a truth commission, known as
the Commission for Reception, Truth and Reconciliation (CAVR), which, among
(continued)

32 Serious crimes were defined as genocide, war crimes, crimes against humanity and torture, in
addition to murder and sexual offences committed between 1 January and 25 October 1999. See
UNTAET Regulation 2000/11, On the Organization of Courts in East Timor, UN Doc UNTAET/
REG/2000/11 (6 March 2000) and UNTAET Regulation 2000/15, On the Establishment of Pan-
els with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc UNTAET/REG/2000/15
(6 June 2000).
33 Chopra, Ranheim, and Nixon, n 28, 119.
34 Kent, The Dynamics of Transitional Justice, n 21, 168–169.
230 LIA KENT

(continued)
other things, initiated a community reconciliation process (CRP) that aimed to
resolve some of the thousands of cases of ‘less serious’ crimes committed dur-
ing 1999 that, it was increasingly recognised, the overstretched judicial system
would have no hope of tackling.35
In comparison to the SPSC, the CRP has been praised for achieving a high
degree of legitimacy amongst the population. Due to its proximity to local com-
munities, its engagement of local leaders and its attempts to incorporate pre-
existing practices of dispute resolution, the CRP successfully integrated about
1,400 perpetrators of minor crimes back into their communities. Yet, the CRP
remained tethered to a short-term state-building timetable that demanded quick
results, which limited its effectiveness.36 Building community awareness of, and
trust in, the CRP process was slow, and by the time the CAVR concluded its work,
after two years of operation, there were thousands of people waiting to take part
in reconciliation hearings who were unable to do so. Local trust in the CAVR was
also eroded by the flaws of the SPSC, the lack of practical assistance provided
to victims and the government’s lack of interest in implementing the recom-
mendations of the CAVR report (including its recommendation for a reparations
program).
In 2006, not long after Timor-Leste had been hailed as a ‘poster child’ of
successful UN peacebuilding, the country descended into violence. The ‘cri-
sis’ of 2006, which stemmed from the government’s dismissal of 594 soldiers
who had left their barracks, soon became a lightning rod for other frustrated
and disaffected groups to express their grievances, which were exacerbated
by poverty and unemployment. Following the deaths of more than 37 people,
the displacement of more than 150,000 people from their homes and the
destruction of many houses, a new UN intervention was deployed to restore
order.
The crisis highlighted the misguided nature of the assumption that inter-
national actors could transform Timor-Leste into a stable, liberal, democratic
state within a two-and-a-half -year period (and primarily through the introduc-
tion of Western-style institutions of governance and justice). Certain aspects of
UNTAET’s peacebuilding intervention – namely its focus on embedding a free-
market model of development and promoting export production – had arguably
also exacerbated some of the conditions in which the crisis took hold, for instance
by raising the costs of basic goods and increasing food insecurity in rural areas.
Although the UN’s transitional justice approach had not itself promoted a free
market model of economic development, like the peace-building intervention as
a whole, it had paid little attention to continuing socio-economic injustices and
underlying historical sources of tension and conflict. Rather, with the exception of
the CAVR’s CRP, it had promoted a politically compromised Western-style justice
system that had little local legitimacy.

35 This included cases of theft, minor assault, killing of livestock, arson and the destruction of crops.
36 See, eg, Kent, The Dynamics of Transitional Justice, n 21, 96.
 TRANSITIONAL JUSTICE AND PEACEBUILDING 231

Case study B: Sierra Leone

Like Timor-Leste, Sierra Leone was the subject of a transitional justice experi-
ment that involved both a truth commission and a hybrid court. These mech-
anisms were promoted as a key aspect of the peacebuilding process that was
initiated after more than a decade of civil war between the Revolutionary United
Front (RUF) and the government of Sierra Leone. The conflict, which claimed
the lives of tens of thousands of civilians, left thousands of others mutilated and
impoverished and displaced about 2 million people, was layered upon decades
of socio-economic marginalisation, poverty, unemployment, corruption and civil
disenfranchisement. As in Timor-Leste, these conditions had been exacerbated
by the legacies of colonialism.
As in Timor-Leste, early peacebuilding efforts in Sierra Leone were accom-
panied by intense peace versus justice debates. These debates came to the fore
in 1999, when the government of Sierra Leone and the RUF signed the Lomé
Peace Accord, which granted an unconditional blanket amnesty for all parties on
the condition that hostilities would cease. Although agreement was also reached
for the establishment of a Truth and Reconciliation Commission (TRC) that would
provide some degree of accountability for human rights abuses, given the scale
of atrocities committed, the amnesty was viewed as profoundly unacceptable by
international lawyers and justice advocates. Many national actors present at the
Lomé negotiations argued, however, that a peace agreement would not be possi-
ble without some provision of amnesty for past crimes.37 At the last moment, the
UN representative to the peace negotiations included a handwritten note stating
that the UN understood that the amnesty would not apply to international crimes
of genocide, crimes against humanity, war crimes and other serious violations of
international humanitarian law.38
Despite the signing of the Lomé agreement, the civil war dragged on for
another two years, until the signing of the Abuja Protocols in 2001. At this point,
the Sierra Leone government made a significant shift in its approach to questions
of accountability, and formally requested the UN’s help to establish a court to
prosecute those responsible for human rights violations during the conflict.39 The
United Nations Mission in Sierra Leone (UNAMSIL) that had been established in
1999 helped to set up a hybrid tribunal, known as the Special Court for Sierra
Leone (SCSL), and provided support for the TRC mandated in the Lomé accord.
UNAMSIL also provided support for other peacebuilding activities, including the
disarmament and demobilisation of ex-fighters, the repatriation of refugees, and
the organisation of presidential and parliamentary elections.
Although the SCSL was given a mandate to try those ‘most responsible’ for
human rights abuses during the armed conflict, as in the case of Timor-Leste,
(continued)

37 Priscilla Hayner, ‘Negotiating Peace in Sierra Leone: Confronting the Justice Challenge’ (Report,
Centre for Humanitarian Dialogue and the International Center for Transitional Justice, December
2007) 6.
38 Ibid 10–11.
39 Mohamed Gibril Sesay and Mohamed Suma, Transitional Justice and DDR: The Case of Sierra
Leone: Research Brief (International Center for Transitional Justice, 2009) 1.
232 LIA KENT

(continued)
the court was constrained by geo-political dynamics, which meant that there
were serious omissions in terms of those prosecuted.40 For instance, the then
President Kabbah was not tried, despite his involvement as minister of defence
throughout the conflict, and the roles of regional leaders Gaddafi and Compaoré
were similarly overlooked. Another parallel with the Timor-Leste context was the
lack of local input into the design and implementation of the SCSL, which fos-
tered perceptions that the court was distant and irrelevant to the lives of ordinary
Sierra Leoneans, and that it was driven by, and served, foreign interests.41 There
was also, as in Timor-Leste, a disjuncture between the SCSL and popular under-
standings of justice. Many ordinary Sierra Leoneans prioritised ‘forgetting’ and
‘compensation’ over the prosecution of individuals, views that were reinforced by
a lack of access of to the formal justice system, fears of retaliation, and people’s
impoverished material conditions.42
The TRC, by contrast, has been praised for the ‘definitive account’ it deliv-
ered of the conditions and causes of the civil war. Funded by the UN’s Office of the
High Commissioner for Human Rights in Geneva, the TRC undertook a nation-
wide exercise in truth-telling between late 2002 and August 2003 that involved
more than 500 individual hearings, 9,000 personal statements and nearly 200
written submissions from national or international institutions and NGOs. Yet,
a severe lack of resources constrained the TRC’s visibility and effectiveness. In
addition, some argue that the TRC, like the SCSL, promoted a culturally inappro-
priate model of truth telling that was at odds with local justice priorities, desires
for economic assistance and local strategies for recovery and reintegration.43
The lack of complementarity between the SPSC and TRC on the one hand,
and the DDR process on the other, further constrained the effectiveness of the
transitional justice process. Although the DDR process (which disarmed 75,000
ex-fighters and provided them with reinsertion packages and skills training) had
taken place concurrently with the transitional justice process, there was a dis-
crepancy between the resources provided to ex-combatants compared to those
provided to victims of the conflict. This gave rise to complaints from non-com-
batants that those who had committed human rights abuses received assistance,
while they did not receive reparations.44 Ordinary people’s ongoing experiences
of poverty and marginalisation added fuel to local expressions of dissatisfaction

40 Chris Mahoney, ‘A Political Tool? The Politics of Case Selection at the Special Court for Sierra
Leone’ in Kirsten Ainley, Rebekka Friedman, and Chris Mahony (eds), Evaluating Transitional
Justice: Accountability and Peacebuilding in Post-Conflict Sierra Leone (Palgrave Macmillan,
2015) 77.
41 See Charles T Call, ‘Is Transitional Justice Really Just?’ (2004) 11(1) Brown Journal of World
Affairs 101–113; Paul Jackson, ‘Whose Justice in Sierra Leone? Power, Security and Justice in
Post-Conflict Reconstruction’ in Ainley, Friedman and Mahoney, n 40.
42 See Tim Kelsall, Culture under Cross Examination, International Justice and the Special Court for
Sierra Leone (Palgrave Macmillan, 2009).
43 See Rosalind Shaw, ‘Memory Frictions: Localizing the Truth and Reconciliation Commission in
Sierra Leone’ (2007) 1 International Journal of Transitional Justice 183, 184.
44 Shaw, ‘Linking Justice with Reintegration’, n 14, 112–113.
 TRANSITIONAL JUSTICE AND PEACEBUILDING 233

with peacebuilding and transitional justice interventions. This discontent serves

to highlight that the UN’s focus on violations committed during the civil war and
the reintegration of combatants has done little to address deep-seated struc-
tural inequalities or meet popular demands for social or redistributive justice.45

10.5 Current positions

What conditions might need to be in place in order for transitional justice to
contribute to building sustainable peace? Recently, there have been calls in the
scholarly and policy literature for better awareness of the shared goals of tran-
sitional justice, peacebuilding and development interventions. This, it is argued,
is required to develop more coherent policy responses to address the array of
interconnected challenges faced by post-conflict societies. Arguments have been
mounted, for example, that peacebuilding interventions could be more ‘justice
sensitive’. For instance, DDR packages for ex-combatants could be designed in
coordination with reparations packages for victims and do more to screen ex-
combatants for human rights abuses. It has also been suggested that transitional
justice interventions could do more to complement peacebuilding and develop-
ment goals. For example, more could be done to reform and strengthen the capac-
ity of domestic judicial systems and to promote civic engagement on issues of
accountability and justice. Important arguments are also emerging for the need of
both trials and truth commissions to give more attention to the practical, material
needs of victims.
As valuable as these suggestions are, developing better forms of coordination
between transitional justice and peacebuilding programs may not be enough to
address the flaws of top-down, decontextualised interventions. Peter Uvin, writ-
ing of the post-conflict industry generally, observes that:

There exists a deep imbalance between its far-reaching and ambitious aims and
its limited resources and lack of knowledge. It appears as a giant, free-floating,
machine, hovering, UFO-like, over a society, somehow totally out of touch and yet
always present.46

Critiques such as these indicate that there may be a need for scholars and practi-
tioners to engage in deeper forms of reflection about the adequacy, flaws and blind

45 Ibid 111.
46 Peter Uvin, The Development/Peacebuilding Nexus: A Typology of Changing Paradigms (2002)
1(1) Journal of Peacebuilding and Development 12.
234 LIA KENT

spots of liberal peacebuilding interventions. These reflections might, in turn, pro-

vide a basis for different kinds of conversations about both ‘justice’ and ‘peace’
that move beyond an emphasis on standardised approaches.
Recent scholarship is beginning to chart some creative ways forward in this
regard. There are emerging calls for peacebuilders to pay more attention to the
historical, political and cultural nuances of the contexts in which they are attempt-
ing to build peace. This requires grappling with complex questions about how
state-society relations have evolved, who has power and how power works.47 Oth-
ers suggest that, as part of paying greater attention to local context, peacebuild-
ers need also to pay attention to the ‘tensions, trade-offs and debates’48 that may
arise in any peacebuilding intervention, including the tensions between peace and
justice. In other words, there appears to be a growing awareness that peacebuild-
ing and transitional justice interventions need to be understood not as technical
or neutral but as inevitably political. A recognition of this politics also requires
acknowledging the power imbalance that inevitably exists in the peace-building
context between the external actors and agencies that control (and provide much-
needed funds for) peacebuilding programs, and recipient populations.
It is not that all of these contradictions, tensions and power dynamics can
necessarily be overcome. Greater awareness of the contingent, partial and politi-
cal nature of peacebuilding might, however, allow more space for questions to
be asked about ‘whose peace (or whose justice)’ is being built, ‘based on whose
priorities, to what ends, and who gets to decide’.49 Issues of legitimacy are at
the heart of these questions, as it is increasingly being recognised that top-down
interventions that are introduced over and above national or subnational political
spheres may be perceived as remote and irrelevant.50 The focus on legitimacy
reflects an emerging recognition that deliberations about questions of both justice
and peace need to involve a wide section of society, not only ‘elites’, and that
building a sustainable peace is contingent on the long-term political action of
citizens and cannot be instituted from above.
Calls are also being made for an expansion of transitional justice goals to
address not only human rights violations committed during times of ‘conflict’ but
also the abuses and structural violence that often helped to precipitate conflict and
which contribute to ongoing instability.51 Reflecting this shift, Louise Arbour, the

47 See Charles T Call and Elizabeth M Cousens, ‘Ending Wars and Building Peace: Coping with
Crisis’ (Working Paper, International Peace Academy, March 2007) 13.
48 Sharp, ‘Beyond the Post-Conflict Checklist’, n 4, 182.
49 Sharp, ‘Emancipating Transitional Justice’, n 17, 167.
50 David Chandler, Empire in Denial: The Politics of State-Building (Pluto Press, 2006) 166.
51 See, eg, Shaw, ‘Linking Justice with Reintegration’, n 14, 114.
 TRANSITIONAL JUSTICE AND PEACEBUILDING 235

former UN High Commissioner for Human Rights, has called for an expansion
of transitional justice to include a greater focus on economic, social and cultural
rights. As she suggests, transitional justice must:

reach to – but also beyond – the crimes and abuses committed during the conflict
[…] and it must address the human rights violations that pre-dated the conflict and
caused or contributed to it. With these aims so broadly defined, transitional justice
practitioners will very likely expose a great number of […] violations of economic,
social, and cultural rights.52

Any attempt to rethink liberal peacebuilding and transitional justice assump-

tions needs also to move beyond an exclusive preoccupation with the state and its
institutions (including legal institutions) and consider peace-building and transi-
tional justice from the ‘bottom up’. There are emerging calls for more attention to
be given to the needs and priorities of communities affected by conflict, including
socio-economic concerns such as job creation, welfare and basic social services.
These issues are traditionally not prioritised by peacebuilders and transitional
justice practitioners concerned with questions of formal justice and institution
building.
Related arguments are emerging for peacebuilders and transitional jus-
tice practitioners to pay more attention to local and indigenous conflict resolu-
tion practices.53 While many rightly caution against the romanticisation of these
practices, which may have discriminatory impacts for less powerful members of
society (for instance, women, young people and ethnic minorities), there is none-
theless a growing recognition that citizens in post-conflict societies often turn
to these practices in their efforts to reconstruct their lives. Local dispute resolu-
tion practices should therefore be taken seriously and should not be automatically
placed in a secondary position to formal state mechanisms.
These insights do not provide a template for negotiating the complex ques-
tions, choices and trade-offs involved in building peace and pursuing justice
in post-conflict societies. What they do suggest, however, is that many issues
that have been traditionally been relegated to the margins be brought into the
foreground. Above all, by drawing attention to the fact that there are no ‘quick
fixes’, they underscore the need to understand peacebuilding as a long-term,
locally grounded process rather than top-down, externally imposed, technical
project.

52 See Louise Arbour, ‘Economic and Social Justice for Societies in Transition’ (Paper presented at
Annual Lecture on Transitional Justice, New York University School of Law, 25 October 2006).
53 See Chapter 14 in this volume, Lars Waldorf, ‘Expanding transitional justice’.
236 LIA KENT

10.6 Summary
As transitional justice is increasingly considered to be an essential component
of peacebuilding, there is a growing interest in exploring the potential connec-
tions between, and mutually reinforcing goals of, both fields. The argument is that
a better awareness of the shared goals of transitional justice and peacebuilding
and a more coordinated approach to addressing these goals will help deliver a
more sustainable peace. The increasing enmeshment of transitional justice within
peacebuilding has nonetheless also rendered transitional justice open to many of
the critiques that have been mounted of liberal peacebuilding in recent years.
A key aspect of this critique focuses on the liberal assumptions that underpin
peacebuilding interventions, and which lead policy-makers to view them as stan-
dardised packages of narrowly focused, technical and externally devised pro-
grams that are transferable to a wide variety of places.
Critics argue that the ‘one size fits all’ approach to transitional justice for
peacebuilding is problematic because it pays little regard to the local context,
including deep-seated structural inequalities that often underlie, and contribute to,
violent conflict. It also obscures the politics of transitional justice, including the
extent to which these interventions are often the product of compromise, limited
choice and conflicting policy agendas. Questions of local ownership of transi-
tional justice interventions are similarly overlooked, as are diverse conceptions of
justice and peace, and local ways of responding to conflict. What these critiques
highlight is that, while it is important and necessary to develop more integrated
approaches to peacebuilding and transitional justice, this in itself will be insuf-
ficient to address the top-down, decontextualised nature of these interventions.
Rather, there is a need for greater attention to questions of local and national
legitimacy, and for the development of more holistic, ‘bottom-up’ responses to
both peacebuilding and transitional justice.

10.7 Discussion and tutorial questions

1) Is justice necessary for a sustainable peace?
2) Where do the goals of peacebuilding and transitional justice converge and
where do they differ?
3) What conditions are necessary for transitional justice to contribute to build-
ing sustainable peace?
4) How might peacebuilders and transitional justice practitioners in Timor-Leste
and Sierra Leone have engaged more effectively with the ‘local context’?
 TRANSITIONAL JUSTICE AND PEACEBUILDING 237

Further reading
Ainley, Kirsten, Rebekka Friedman, and Chris Mahony (eds), Evaluating Transitional
Justice: Accountability and Peacebuilding in Post-Conflict Sierra Leone (Palgrave
Macmillan, 2015).
Chopra, Tanya, Christian Ranheim, and Rod Nixon, ‘Local-Level Justice under
Transitional Administration: Lessons from East Timor’ in Deborah Isser (ed),
Customary Justice and the Rule of Law in War-Torn Societies (United States
Institute for Peace, 2011) 119–158.
Kent, Lia, The Dynamics of Transitional Justice: International Models and Local Reali-
ties in East Timor (Routledge, 2012).
Mani, Rama, ‘Rebuilding an Inclusive Political Community after War’ (2005) 36(4)
Security Dialogue 511.
Sharp, Dustin, ‘Beyond the Post-Conflict Checklist: Linking Peacebuilding and
Transitional Justice through the Lens of Critique’ (2013) 14(1) Chicago Journal
of International Law 165.
Sriram, Chandra Lekha, ‘Justice as Peace? Liberal Peacebuilding and Strategies of
Transitional Justice’ (2007) 21(4) Global Society 579.
Sriram, Chandra Lekha, Jemima García-Godos, Johanna Herman, and Olga Mar-
tin-Ortega (eds), Transitional Justice and Peacebuilding on the Ground: Victims
and Ex-Combatants (Routledge, 2013).

Further materials
Fambul Tok [Family Talk] (Directed by Sarah Terry, Produced by Sara Terry, Libby
Hoffman and Rory Kennedy, 2011) [documentary film about how Sierra Leo-
neans are building sustainable peace at the grassroots level].
A Hero’s Journey: Xanana Gusmao of East Timor (Directed by Grace Phan, Lux Lucis,
2006) [documentary on Xanana Gusmao that also explores the complex chal-
lenges of reconstruction and reconciliation in East Timor from Gusmao’s
perspective].
Peace Versus Justice: A False Dilemma (Directed by International Center for Tran-
sitional Justice, 2011) <www.ictj.org/multimedia/video/peace-versus-justice-
false-dilemma> [short multimedia clip on the ICTJ website on the peace
versus justice debate].

Other resources
The Beyond Intractability Project, the Conflict Information Consortium, University of
Colorado <www.beyondintractability.org/essay/peacebuilding>.
Professionals in Humanitarian Assistance and Protection (‘PHAP’), Transitional
Justice and Peacebuilding Processes (July 2009) Peacebuilding Initiative
<wwwpeacebuildinginitiative.org/>.
United Nations Peacebuilding Commission <www.un.org/en/peacebuilding/>.
238 LIA KENT

Bibliography
Aggestam, Karin and Annika Bjorkdahl, ‘Introduction: The Study of Justice and
Durable Peace’ in Karin Aggestam and Annika Bjorkdahl (eds), Rethinking
Peacebuilding: The Quest for Peace in the Middle East and the Western Balkans
(Routledge, 2013).
Ainley, Kirsten, Rebekka Friedman, and Chris Mahony (eds), Evaluating Transitional
Justice: Accountability and Peacebuilding in Post-Conflict Sierra Leone (Palgrave
Macmillan, 2015).
Allen, Matthew and Sinclair Dinnen, ‘The North Down Under: Antinomies of Con-
flict and Intervention in Solomon Islands’ (2010) 10(3) Conflict, Security and
Development 299.
Arbour, Louise, ‘Economic and Social Justice for Societies in Transition’ (Paper pre-
sented at Annual Lecture on Transitional Justice, New York University School
of Law, 25 October 2006) <http://nyujilp.org/wp-content/uploads/2013/02/40.1-
Arbour.pdf>.
Boutros-Ghali, Boutros, An Agenda for Peace: Preventative Diplomacy, Peacemaking
and Peace-Keeping, UN Doc A/47/277-S/2411 (31 January 1992).
Call, Charles T, ‘Is Transitional Justice Really Just?’ (2004) 11(1) Brown Journal of
World Affairs 101.
Call, Charles T and Elizabeth M Cousens, ‘Ending Wars and Building Peace: Coping
with Crisis’ (Working Paper, International Peace Academy, March 2007).
Chandler, David, Empire in Denial: The Politics of State-Building (Pluto Press,
2006).
Chopra, Tanja, Christian Ranheim, and Rod Nixon, ‘Local-Level Justice under
Transitional Administration: Lessons from East Timor’ in Deborah Isser (ed),
Customary Justice and the Rule of Law in War-Torn Societies (United States
Institute for Peace, 2011) 119.
de Greiff, Pablo and Roger Duthie (eds), Transitional Justice and Development: Mak-
ing Connections (Social Science Research Council, 2009).
Fischer, Martina and Ljubinka Petrovic-Ziemer, Dealing with the Past in the West-
ern Balkans: Initiatives for Peacebuilding and Transitional Justice in Bosnia-
Herzegovina, Serbia and Croatia (Berghoff Report No 18, Berghoff Foundation,
2013).
Francis, David, ‘Introduction: When War Ends: Building Peace in Divided Commu-
nities – Core Issues’ in David Francis (ed), When War Ends, Building Peace in
Divided Communities (Ashgate, 2012) 11.
Ginifer, Jeremy, ‘Reintegration of Ex-Combatants’ in Mark Malan, Sarah Meek,
Thokozami Thusi, Jeremy Ginifer, and Patrick Coker (eds), Sierra Leone: Build-
ing the Road to Recovery (Institution for Security Studies, 2003) 39.
Hayner, Priscilla, ‘Negotiating Peace in Sierra Leone: Confronting the Justice
Challenge’ (Report, Centre for Humanitarian Dialogue and the International
Center for Transitional Justice, December 2007).
 TRANSITIONAL JUSTICE AND PEACEBUILDING 239

ICTJ Research Unit, Transitional Justice and Development: ICTJ Briefing (Interna-
tional Center for Transitional Justice, 2009).
Jackson, Paul, ‘Whose Justice in Sierra Leone? Power, Security and Justice in
Post-Conflict Reconstruction’ in Kirsten Ainley, Rebekka Friedman, and Chris
Mahoney (eds), Evaluating Transitional Justice: Accountability and Peacebuilding
in Post-Conflict Sierra Leone (Palgrave Macmillan, 2015).
Jeffery, Renee and Hun Joon Kim, ‘Introduction: New Horizons: Transitional Jus-
tice in the Asia Pacific’ in Renee Jeffery and Hun Joon Kim (eds), Transitional
Justice in the Asia-Pacific (Cambridge University Press, 2014) 1.
Kelsall, Tim, Culture under Cross Examination, International Justice and the Special
Court for Sierra Leone (Palgrave Macmillan, 2009).
Kent, Lia, ‘After the Truth Commission: Gender and Citizenship in Timor-Leste’
(2016) 17(1) Human Rights Review 51.
Kent, Lia, The Dynamics of Transitional Justice: International Models and Local Reali-
ties in East Timor (Routledge, 2012).
Mahoney, Chris, ‘A Political Tool? The Politics of Case Selection at the Special Court
for Sierra Leone’ in Kirsten Ainley, Rebekka Friedman, and Chris Mahony
(eds), Evaluating Transitional Justice: Accountability and Peacebuilding in Post-
Conflict Sierra Leone (Palgrave Macmillan, 2015).
Mani, Rama, ‘Rebuilding an Inclusive Political Community after War’ (2005) 36(4)
Security Dialogue 517.
Meernik, James, ‘Justice and Peace? How the International Criminal Tribunal
Affects Societal Peace in Bosnia’ (2005) 42(3) Journal of Peace Research 287.
Mertus, Julie, ‘Findings from Focus Group Research on Public Perceptions of the
ICTY’ (2007) 55(1) Südosteuropa 107.
Nagy, Rosemary, ‘Transitional Justice as Global Project: Critical Reflections’ (2008)
29(2) Third World Quarterly 275.
Newman, Edward, Roland Paris, and Oliver P Richmond, ‘Introduction’ in Edward
Newman, Roland Paris, and Oliver P Richmond (eds), New Perspectives on Lib-
eral Peacebuilding (United Nations University Press, 2009).
Olsen, Tricia, Leigh Payne, and Andrew Reiter, ‘The Justice Balance: When Tran-
sitional Justice Improves Human Rights and Democracy’ (2010) 32(4) Human
Rights Quarterly 980.
Ottendorfer, Eva, ‘Contesting International Norms of Transitional Justice: The Case
of Timor Leste’ (2013) 7(1) International Journal of Conflict and Violence 32.
Paris, Roland, At War’s End: Building Peace after Civil Conflict (Cambridge University
Press, 2004).
Professionals in Humanitarian Assistance and Protection (‘PHAP’), Transitional
Justice and Peacebuilding Processes (July 2009) Peacebuilding Initiative <www.
peacebuildinginitiative.org>.
Sesay, Mohamed Gibril and Mohamed Suma, Transitional Justice and DDR: The Case
of Sierra Leone: Research Brief (International Center for Transitional Justice,
2009).
240 LIA KENT

Sharp, Dustin, ‘Beyond the Post-Conflict Checklist: Linking Peacebuilding and

Transitional Justice through the Lens of Critique’ (2013) 14(1) Chicago Journal
of International Law 165.
Sharp, Dustin, ‘Emancipating Transitional Justice from the Bonds of the Para-
digmatic Transition’ (2015) 9(1) International Journal of Transitional Justice
150–169.
Shaw, Rosalind, ‘Linking Justice with Reintegration? Ex-Combatants and the
Sierra Leone Experiment’ in Rosalind Shaw and Lars Waldorf (eds), Localizing
Transitional Justice: Interventions and Priorities after Mass Violence (Stanford
University Press, 2010) 111.
Shaw, Rosalind, ‘Memory Frictions: Localizing the Truth and Reconciliation
Commission in Sierra Leone’ (2007) 1 International Journal of Transitional
Justice 183.
Sriram, Chandra Lekha, ‘Justice as Peace? Liberal Peacebuilding and Strategies of
Transitional Justice’ (2007) 21(4) Global Society 579.
Sriram, Chandra Lekha, Olga Martin-Ortega, and Johanna Herman, ‘Guidance
Paper: Evaluating and Comparing Strategies of Peacebuilding and Transitional
Justice’ (Working Paper No 2, Centre on Human Rights in Conflict, May 2009).
Subotić, Jelena, Hijacked Justice: Dealing with the Past in the Balkans (Cornell Uni-
versity Press, 2009).
UN Security Council, The Rule of Law and Transitional Justice, UN Doc S/2011/634
(12 October 2011).
UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-
Conflict Societies, UN Doc S/2004/616 (23 August 2004).
UNTAET Regulation 2000/11, On the Organization of Courts in East Timor, UN Doc
UNTAET/REG/2000/11 (6 March 2000).
UNTAET Regulation 2000/15, On the Establishment of Panels with Exclusive Juris-
diction over Serious Criminal Offences, UN Doc UNTAET/REG/2000/15 (6 June
2000).
Uvin, Peter, ‘The Development/Peacebuilding Nexus: A Typology of Changing Para-
digms’ (2002) 1(1) Journal of Peacebuilding and Development 12.
Waldorf, Lars, ‘Just Peace? Integrating DDR and Transitional Justice’ in Chandra
Lekha Sriram, Jemima García-Godos, Johanna Herman, and Olga Martin-
Ortega (eds), Transitional Justice and Peacebuilding on the Ground: Victims and
Ex-Combatants (Routledge, 2013).
Wallensteen, Peter and Margareta Sollenburg, ‘Armed Conflict 1989–1999’ (2000)
37(85) Journal of Peace Research 632.
Chapter 11

Arts and transitional justice

Olivera Simić

11.1 Introduction
Experiencing artistic installations can be significant for transitional justice pro-
cesses. Not only does an audience bear witness for harms done, but their pres-
ence also indicates public acknowledgment of crimes committed. This public
acknowledgement is important for transitional justice: it is a break from the nar-
rative of denial, which is often followed by strong feelings of shame and guilt
for what has been done by group members. The process of re-humanisation of
perpetrators is also necessary for any reconciliatory effort and rebuilding social
relationships.1 Art projects have been used as tools of transitional justice in
countries on all continents, to address atrocities committed by all kinds of non-
democratic regimes. In the following chapter, we will explore the role of the arts
in transitional justice processes. What is the power of art? Can art really make
a difference in a community? Can it make a difference for those going through
troubled times?

1 For example, a photo installation, ‘Entering the Tiger Zone’ by Timothy Williams, endeavours
to present perpetrators as humans rather than ‘evil others’. Timothy Williams, Entering the Tiger
Zone (2015) University of Marburg <www.uni-marburg.de/konfliktforschung/Termine/entering-
tiger-zone>. The exhibition is less about the everyday life of the perpetrators today, and more about
their everyday life back in the 1970s and the dynamics that led to their participation in the Khmer
Rouge massacres in Cambodia. Regarding the necessity for re-humanisation of perpetrators, see
Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice
without Lawyers (Cambridge University Press, 2010) 42; David Bloomfield, Teresa Barnes, and
Luc Huyse (eds), Reconciliation After Violent Conflict: A Handbook (International Institute for
Democracy and Electoral Assistance, 2003) 72; Geneviève Parent, ‘Reconciliation and Justice
after Genocide: A Theoretical Exploration’ (2010) 5 Genocide Studies and Prevention 287.
242 OlIverA SImIć

11.2 Defining arts in transitional justice

and their purpose
The field of transitional justice has only recently seen an upsurge of literature on
the role of the arts in post-conflict justice processes, which has underscored that it
is necessary to pay attention to ‘the cultural and individual dimensions of transi-
tional processes’.2 There is general consensus among transitional justice scholars
that judicial proceedings and accountability for human rights violations are neces-
sary, but not sufficient, to bring sustainable peace, democracy or reconciliation.
The law is, according to several scholars, ineffective in bringing transformative
change in social relations.3 As Martha Minow argues, ‘trials are not ideal’4 and the
law has limited capacity to capture and reflect on people’s experiences and incor-
porate them fully within the legal form. Trials, in large part, exclude the everyday
experiences of those who have lived through an armed conflict or dictatorship.
Simply put, the law and prosecutions must be accompanied by social and
institutional transformation in order to produce change in the affected society. In
societies that have experienced mass human rights violations, very few people
will seek justice before the courts and even fewer will qualify to obtain material
reparation from the state. Many survivors will instead receive some form of sym-
bolic reparation, such as an apology, while some will receive nothing at all. The
necessity to document and memorialise crimes against humanity, in forums other
than trials, thus becomes of paramount and enormous importance.5 These other
forms of symbolic reparations strive to achieve moral and not monetary satisfac-
tion for survivors.6
Still, empirical studies show that analysis of reparations largely focuses on
‘official state policy’ towards individuals, mainly in the form of money, prop-
erty or other forms of material reparations. Symbolic reparation may come, not
only in the form of an official apology, but also through artistic projects, and the
potential of these for transformation and acknowledgement is still largely under-
researched and under-theorised. For example, while recognising the importance

2 Pablo de Greiff, ‘On Making the Invisible Visible: The Role of Cultural Interventions in Transi-
tional Justice Processes’ in Clara Ramírez-Barat (ed), Transitional Justice, Culture and Society:
Beyond Outreach (Social Science Research Council, 2014) 11, 14.
3 See, eg, Laureen Snider, ‘Towards Safer Societies: Punishment, Masculinities and Violence
Against Women’ (1998) 38 British Journal of Criminology 1.
4 Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass
Violence (Beacon Press, 1998) 47.
5 Catherine Cole, ‘Performance, Transitional Justice, and the Law: South Africa’s Truth and Recon-
ciliation Commission’ (2007) 59 Theatre Journal 168, 169.
6 See Chapter 9 in this volume, Jemima García Godos, ‘Reparations’.
 ArtS AnD trAnSItIOnAl juStICe 243

of ‘collective and symbolic forms of reparation [to] promote societal reconcilia-

tion’, Olsen, Payne and Reiter exclude symbolic forms of reparation from their
analysis ‘because of the difficulties in finding full and systematic accounting’ of a
wide range of mechanisms.7
Although challenging for systematic research, symbolic reparation has been
recognised as an important part of reparation packages. In its final report of 1998,
the Reparation and Rehabilitation Committee of the Truth and Reconciliation
Committee (TRC) in South Africa, for example, recommended reparations as
necessary legal and moral obligations of the state to survivors of gross human
rights violations, designed to ‘restore human and civil dignity’ and enable victims
to come to terms with the past. According to the TRC report, ‘symbolic repara-
tions’ refers to measures that facilitate the ‘communal process of remembering
and commemorating the pain and victories of the past.’8 Such measures, which are
seen as mechanisms to restore the dignity of victims and survivors, may include,
but are not limited to, exhumations, tombstones, memorials, monuments or the
renaming of streets, parks, localities and public facilities.
Symbolic forms of reparation, according to Margaret Urban Walker, do not
involve monetary transfer or transfer of property, but can be diverse, ranging
from memorials to public apologies or educational projects.9 According to her,
all reparations have symbolic – that is, expressive or communicative – function.
Likewise, Brandon Hamber notes that monetary reparation is also just another
form of symbolic reparation, which serves as a symbolic marker of redress and
recognition.10
According to Walker, regardless of whether they are monetary or symbolic,
all reparations are seen by victims as communicative gestures which produce real
effects of moral, social, psychological and political kinds. Walker calls atten-
tion to the ‘expressive’ dimension of all types of reparations, which is the ‘com-
municative act of expressing acknowledgment, responsibility, and intent to do
justice’.11 For many victims of political violence, it is precisely the denial of their

7 Tricia D Olsen, Leigh A Payne, and Andrew G Reiter (eds), Transitional Justice in Balance: Com-
paring Processes, Weighing Efficacy (United States Institute of Peace Press, 2010) 37.
8 Reparation and Rehabilitation Committee, Parliament of the Republic of South Africa, Report
(1998) vol 6, part 2, 95.
9 Margaret Urban Walker, ‘The Expressive Burden of Reparations: Putting Meaning into Money,
Words, and Things’ in Alice MacLachlan and Allen Speight (eds), Justice, Responsibility and
Reconciliation in the Wake of Conflict (Springer, 2013) 205, 211.
10 Brandon Hamber, Transforming Societies After Political Violence: Truth, Reconciliation and Men-
tal Health (Springer, 2009).
11 Margaret Urban Walker, ‘Truth Telling as Reparations’ (2010) 41 Metaphilosophy 529.
244 OlIverA SImIć

victim status and social and political silence about their victimisation that are
most difficult to bear.12
In that sense, artistic exhibitions become one of the various communica-
tive acts that strive to bring forward survivors’ experiences of armed conflict and
political violence to a larger audience in order to break often entrenched silence
and denial about past crimes. These artistic processes should be understood as
a form of public recognition of survivors’ and victims’ suffering. The artworks
strive to engage the public on multiple levels to create potential for confront-
ing both injustice and historical narratives that need to be challenged. They can
raise questions of justice, explore alternative historical narratives, give a voice to
individual experiences far too often ignored and ensure that these stories do not
disappear altogether from the national memory. Artistic projects can also reach
much a wider audience than legal justice ever can. As Chilean born artist Alfredo
Jarr urged: ‘Enough of you speaking to me and me speaking to me. Me applaud-
ing to you and you applauding to me. Let’s get out, let’s reach a larger audience’.13
Theatrical performances, exhibitions and artistic installations can be made trans-
portable, allowing them to be staged or displayed in isolated and remote areas,
where the community may not necessarily engage with the press, internet and
formal judicial language.
Artistic projects have the potential to break through silence and to serve as
a symbolic form of public acknowledgement and recognition that crimes hap-
pened. Such acknowledgement carries, as expressed by Haldemann, an ‘idea of
a “different kind of justice”, one that is less vindictive and state-centred and is
more caring and responsive to human suffering’.14 Art can foster ‘precious sites of
reflection’, either collective or solitary, which in turn can allow creative and criti-
cal distance from the artwork.15 Artistic installations may have a ‘commemorative
function’ and represent some sort of ‘temporary monuments’; they ‘acknowledge
that something has happened and have testimonial value and value of symbolic
reparation’.16 Art can facilitate negotiation among victims, parties responsible

12 Brandon Hamber and Ingrid Palmary, ‘Gender, Memorialization, and Symbolic Reparations’
in Ruth Rubio-Marin (ed), The Gender of Reparations: Unsettling Sexual Hierarchies While
Redressing Human Rights Violations (Cambridge University Press, 2009) 324, 364.
13 Art21, Interview with Alfredo Jaar (‘The Gramsci Trilogy’, 11 March 2007) <www.art21.org/
texts/alfredo-jaar/interview-alfredo-jaar-the-gramsci-trilogy>.
14 Frank Haldemann, ‘Another Kind of Justice: Transitional Justice as Recognition’ (2008) 41 Cor-
nell International Law Journal 675.
15 Vikki Bell, The Art of Post-Dictatorship: Ethics and Aesthetics in Transitional Argentina (Rout-
ledge, 2014) 119.
16 Interview with Nataša Govedarica (Skype, 7 October 2013).
 ArtS AnD trAnSItIOnAl juStICe 245

for wrongdoings and their communities.17 In that sense, the audience is actively
engaged in an act of moral reparation by co-creating a ‘shared understanding’,
with the capacity to produce empathy, space for insight and a public discussion
forum about events and themes often pushed under the carpet by state officials.
Acting upon this urge to turn to new languages and forms to address issues
that are often silenced and unaddressed by the state authorities, artists have cre-
ated innovative arts projects in post-conflict/post-dictatorship countries, employ-
ing testimony, graphic arts, humour and cinema in order to respond to trauma
and authoritarianism. Art projects assist recognition of past injustices, serve as
symbolic reparation, provide important unofficial counterparts for truth-finding
and enable improvement of underrepresented groups.18
Artists look for different ways of communication in order to reach a larger
public, in order to make sense. When we say, for example, that 20,000 women
were raped, or every second woman, this can be meaningless because the sta-
tistics are too abstract. A strategy that artists often use is to reduce the scale to a
single human being with a name, a story. This can help an audience identify with
that person, and thus create conditions more conducive to empathy, solidarity and
engagement with their story; to make space for dialogue, challenge indifference
and inequality and create intellectual involvement; in short, to reimagine justice.

11.3 Documentary theatre: using authentic

testimonies and sources
Documentary theatre is a communicative act that strives to bring forward the sto-
ries of people’s experiences of war and violence. It uses archival and authen-
tic testimonies, collected in private settings and public legal spaces such as
courtrooms. These testimonies may have been buried in official documents and
archives or, too often, have not been archived at all. Documentary theatre takes
people’s experiences seriously, and has the capability to do so, as an innovative
medium that can capture an individual’s journey in dealing with the past and the
harm they have experienced. The use of archival material, including textual and
visual documents, has a long history as a means of addressing broad social and
political questions, histories of oppression and criminal justice systems, where
the creative work of memory and the past through recollection and re-negotiation

17 Urban Walker, ‘The Expressive Burden of Reparations’, n 9, 222.

18 Sanja Bahun, ‘Transitional Justice and the Arts: Reflections on the Field’ in Claudio Corradetti,
Nir Eisikovits, and Jack Volpe Rotondi (eds), Theorizing Transitional Justice (Ashgate, 2015)
153, 156.
246 OlIverA SImIć

has been widely explored.19 Artists recognise that a failure to respond to atrocity
leaves survivors with frozen capacities to act and produces wounded attachments
to devastations, which can contribute to cycles of intergenerational transmission
of trauma.20
Documentary theatre acknowledges and acts upon the need ‘to reconcep-
tualise transitional justice from the point of view of individual lived experi-
ences’.21 Such theatre is a site of social intervention that opens up a space for
the re-negotiation of lived experiences and also a site of practical endeavour
that may advance justice for past violence. As Giovanna Zapperi notes, the
reappearance of women, for example, in documentary theatre can reveal things
and events that have been repressed or overlooked. It can also remind us of the
constitutive relationship between time and the image: it is when it is visualised
that the past becomes recognisable and tangible.22 The artists working with
this form tend to believe that the focus on individual lives and experiences is
something that needs to be captured, whereas – or because – macro historical
and political events are often of importance to courts. This does not mean that
context is irrelevant, but that people’s lives and experiences are at the forefront
of their work.
The law, the courts and judges do not offer this kind of space or time or
freedom of expression to survivors. They are interested in evidence, not in a
story as such, and for the sake of evidence they will interrupt a witness when
testimony is no longer deemed relevant. The rigidity and formalities that the
rules of evidence and procedure require in the courtroom vanish in verbatim
theatre. According to Dijana Milošević, documentary theatre is a specific form
of theatre that uses:

testimonies, diaries, but also literature, visual art and music that speaks about
the theme. It is the theatre that does not ask audience to ‘judge’ events and people
what courts must do. Art, and specifically theatre art is able to record and revive
the live word and the presence of the performers.23

19 Catherine Russell, Experimental Ethnography: The Work of Film in the Age of Video (Duke Uni-
versity Press, 1999); Jeffrey Skoller, Shadows, Specters, Shards: Making History in Avant-Garde
Film (University of Minnesota Press, 2005).
20 Martha Minow, ‘Breaking the Cycles of Hatred’ in Nancy Rosenblum (ed), Breaking the Cycles of
Hatred: Memory, Law and Repair (Princeton University Press, 2002) 14, 16.
21 Romi Sigsworth and Nahla Valji, ‘Continuities of Violence Against Women and the Limitations of
Transitional Justice: The Case of South Africa’ in Susanne Buckley-Zistel and Ruth Stanley (eds),
Gender in Transitional Justice (Palgrave Macmillan, 2011) 115, 127.
22 Giovanna Zapperi, ‘Woman’s Reappearance: Rethinking the Archive in Contemporary Art –
Feminist Perspectives’ (2013) 105 Feminist Review 21.
23 Interview with Dijana Milošević (Skype, 12 January 2016).
 ArtS AnD trAnSItIOnAl juStICe 247

Documentary theatre has become increasingly popular because it is capable

of speaking with a live, everyday language about questions that audiences find
difficult to deal with. It offers provocation and controversy, which makes it attrac-
tive and topical in comparison with, for example, classical theatre. Documen-
tary theatre encourages dialogue and publicly speaks about truths left unspoken,
bringing to life personal narratives and memories, and often is the only public
place where marginalised perspectives can be heard. It is a forum that is capable
of keeping human experience alive and of encouraging rethinking, speaking up
and learning, which may prevent repetition of wrongdoings.24 Theatre plays a
powerful role in this process of reckoning with the past, since artists have the
power to speak out – and be heard – in the public domain.
Documentary theatre is a form often used by devised theatres such as Dah
theatre (Serbia) and Yuyachkani (Peru). It is known also under the name of ‘col-
laborative creation’ because production of the show is a cooperative work between
the director and actors. Devised theatre is an alternative to mainstream theatre.
‘Devising’ is a process in which the whole creative team develops a show collab-
oratively by sharing experiences, and exploring and experimenting with the nature
of performance. Theatre companies will select their sources of inspiration such as
a photograph, a poem, a short story or essay, a memory, interviews or a question,
and create a unique performance vocabulary informed by their source materials.
They will articulate how their sources have informed process and product, form
and content. The performances will often include movement, voice, visual image,
sonic landscape, text and scenic environments that communicate style and aesthet-
ics. Devising theatre strives to address challenges brought about by the cultural or
socio-political changes of the time. These changes and theatre companies’ preoc-
cupations are reflected in the themes, form and content of the shows. The work
they produce is not devised in a vacuum, but always reflects the broader context of
society and culture, the world, its past and contemporary events.25

Case study A: Dah theatre (Serbia)

Dah Theatre (Dah) was created in Belgrade by Dijana Milošević and Jadranka
Anđelić in 1991, at the beginning of the fall of Yugoslavia. At the time, Milošević
and Anđelić were driven ‘perhaps subconsciously, to oppose the destruction
with creation; to create, in the midst of a world falling apart, a microcosmos of
(continued)

24 Ibid.
25 For more on Devised Theatre, see, eg, Alison Oddey, Devising Theatre: A Practical and Theoreti-
cal Handbook (Routledge, 1994).
248 OlIverA SImIć

(continued)
theatre’.26 They had envisioned that their theatre would last for 15–20 years, but
25 years later Dah is still engaged in vital cultural work.
The war in the former Yugoslavia started in Slovenia and quickly spread to
Croatia, Bosnia and Herzegovina (BiH) and later on Kosovo. The whole region was
affected directly or indirectly. It was the war that brought the end of the one-party
system (Communist Party) and saw almost 100,000 people dead, while approxi-
mately 8,000 are still missing. The region is still recovering from the destruction
and mayhem that gripped it between 1991 and 2001.
Much has changed in the former Yugoslavia over the past two decades, but
many challenges remain the same, including a lack of financial support for the
work of theatre, and a determined denial of war crimes committed by one’s own
ethnic group. At the time when Dah was founded, there was no tradition of inde-
pendent professional groups, no cultural understanding of what these groups
were about, and no financial support to enable their existence. Dah, for its part,
was a genuine pioneer: it introduced many radically new ideas, including a the-
atre lab, theatre workshops and actors’ training. At the time, a civil war was rag-
ing in the former Yugoslavia – a war for which the then Serbian government had
an enormous responsibility. The circumstances for developing artistic projects
could not have been less favourable. Paradoxically, it was precisely those circum-
stances that made the existence of Dah both intensely meaningful and culturally
essential – the theatre’s performances acted as a way of opposing the violence
that engulfed all of us living in the region at the time.
Although Dah does not define itself as a documentary theatre, it uses this
particular form in some performances to bring people’s stories alive on the
stage. Three performances that engage with the question of responsibility to the
past – Crossing the Line, Story about Tea and The Shivering of the Rose – draw
extensively on historical facts and documentary material. In Crossing the Line,
documentary material is used, for the first time, throughout the entire perfor-
mance, while Story about Tea incorporates, among other literature, documen-
tary material about real-life war crimes committed in Štrpci.27 Dijana Milošević,
the director of Dah, commented on the importance of dealing with the past and
acknowledging survivors’ experiences. After Crossing the Line was performed in
a small town in BiH she reported:

I realised at one moment that the whole audience was weeping […]
once we finished the play, we received standing ovations and talked to

26 Dubravka Knežević, ‘Till the Last Breath’ (1995) Sept–Dec Scena 5.

27 Members of the Avengers (Osvetnici) military unit, commanded by Milan Lukić, with logistical
support from Serbia, were responsible for the abductions and then murder of 19 men in the Bos-
nian territory. Although Lukić was sentenced to 20 years of imprisonment by ICTY, his indictment
did not include the massacre of 19 men. Women in Black state that this situation exposes the limits
of ICTY. Only one person, Nebojša Ranisavljević, has been charged and convicted for this crime:
Dušan Komarčević, ‘Women in Black Remembered Abducted From a Train in Strpci: Those Who
Committed the Crimes Remain at Large’, E-Novine (online), 17 January 2016 <www.e-novine.
com/drustvo/59890-Kreatori-zloina-dalje-slobodi.html> [translation of: ‘Žene u crnom pamte
otete iz voza u Štrpcima: kreatori zločina i dalje na slobodi’].
 ArtS AnD trAnSItIOnAl juStICe 249

audience. I realised then how important it was for them to publically [sic]
hear their stories and in that way be acknowledged in their suffering.28

In The Shivering of the Rose Dah uses authentic testimonies of women from
BiH, but also personal diaries and literature from Argentina and Chile. The per-
formance deals with the post-traumatic memories of missing family members,
especially women, who are their beloved ones. Dah positions itself as a theatre
that can open doors to the victims to seek justice and as a space where people
can reconsider their views. As a theatre, it employs techniques that allow the
crossing of borders between the rational and the irrational, between reality
and metaphor. These border-crossing techniques inherent to transformational
theatre can at times open up a much larger space for potential reconciliation
than formal justice mechanisms. Milošević sees Dah as fundamentally a truth-
seeking mechanism:

Art seeks to reveal the truth. We are a mechanism of truth. We create

a space where it is possible for truth to be heard. I see us, artists, as a
consciousness of society. With our first performance, which was the anti-
war performance in 1992 [This Babylonian Confusion], we came out on the

Figure 11.1 maja mitić, The Shivering of the Rose, Dah theater.
Source: reproduced with permission of theater director. Photographed by una Škandro.

(continued)

28 Olivera Simić and Dijana Milošević, ‘Enacting Justice: The Role of Dah Theatre Company in Tran-
sitional Justice Processes in Serbia and Beyond’ in Peter D Rush and Olivera Simić (eds), The Arts
of Transitional Justice: Culture, Activism, and Memory After Atrocity (Springer, 2014) 99, 107.
250 OlIverA SImIć

(continued)

Figure 11.2 maja mitić, The Shivering of the Rose, Dah theater.
Source: reproduced with permission of theater director. Photographed by una Škandro.
Note: Zašto! [‘Why!’]

streets and talked about the war at the time when it was forbidden to talk
like that in Serbia. We have a great need to talk about those things, which
we are prohibited from talking about and about things that are happening;
to talk about the things that we are obsessed with, things that bother us.

One of the most important transitional justice functions that theatre can
offer is to inspire and encourage empathy and solidarity. Coming from Serbia
and being of Serbian origin, the troupe felt a personal urge to describe what was
happening around them, and because Serbia’s government had initiated the war.
As Milošević stated:

In our name the most unspeakable atrocities have been committed regard-
less of the other side’s responsibility for the war. To us this performance
[Crossing the Line] was a path towards self-healing and reconciliation with
our own people and with people from our former homeland. We are those
who were vulnerable, who felt guilty and who transformed our feeling of
guilt into a feeling of responsibility. We are the ones who lived here and did
not support what was happening, but our voices have not been heard. We
had an enormous need for our voices to be heard in the name of all those
people who had not agreed to and who didn’t support what was happening.
It is the power of theatre to give that voice, to give voice to the voiceless.29

29 Ibid 102.
 ArtS AnD trAnSItIOnAl juStICe 251

Case study B: Grupo Cultural Yuyachkani (Peru)

Peru’s most important theatre collective, Grupo Cultural Yuyachkani, has been
working since 1971 as an independent institution at the forefront of theatrical
experimentation, political performance and collective creation. Yuyachkani is a
Quechua word that means ‘I am thinking, I am remembering’. It is one of Latin
America’s oldest and most impressive activist theatre collectives, with a 40-year
history of performing in reaction to, and in defiance of, politics in Peru. The the-
atre group has devoted itself to the collective exploration of embodied social
memory, particularly in relation to questions of ethnicity, violence and memory in
Peru. It is well known for embracing both cosmopolitan and indigenous forms of
theatre, while addressing post-dictatorship and social issues in Latin America.
Its work has a strong commitment to grassroots community issues, mobilisation,
social justice and advocacy. Its members see the group and performance as a
space for social interventions, self-reflection and social intervention. The group
is strongly commited to the development and strengthening of public memory.30
In the 1960s and 1970s, many Latin American countries were governed by
military dictators, and Peru was no exception. The Peruvian Truth and Reconcili-
ation Commission was established in 2001 to examine abuses committed during
the 1980s and 1990s, when Peru was plagued by the worst political violence in
the history of the republic. The commission focused on forced disappearances,
massacres, human rights violations, terrorist attacks, and violence against
women – abuses that were committed by both the rebel groups and the mili-
tary of Peru during the internal armed conflict. The commission appointed many
sectors of civil society as members, including scholars, journalists, sociologists,
priests and artists.
To facilitate the truth-gathering process, as well as to publicly honour and
remember the dead, five members of Yuyachkani travelled to the mountain-
ous regions of the Andes most affected by the war. There, over a period of eight
months, they held workshops, performed in the streets and participated in local
demonstrations.31 Through a range of performances and street-art installations,
they converted ordinary streets and plazas into ritual spaces for reflection and
remembrance. As Ana Correa, a Yuyachkani troupe member, reported,

The Commission in Peru organised meetings where families of dis-

appeared could come to testify. […] We met with people everywhere,
in markets, public squares, churches […] we emotionally supported
people and families who suffered and testified. […] When they testi-
fied, I could really feel it […] you can really feel these personal stories;
(continued)

30 For more, see, Yuyachkani Cultural Group, Historia <www.yuyachkani.org/historia.html>;

Yuyachkani Cultural Group, Historia del Grupo <http://hemisphericinstitute.org/cuaderno/
yuyachkani/group.html>.
31 Salomón Lerner Febres, ‘Memory of Violence and Drama in Peru: The Experience of the Truth
Commission and the Yuyachkani Theater Group’ (Speech delivered at the Just Performance:
Enacting Justice in the Wake of Violence Symposium, Brandeis University, USA, 1–2 December
2011).
252 OlIverA SImIć

(continued)

Figure 11.3 Ana Correa as rosa Cuchillo.

Source: reproduced with permission of the theatre group.

Figure 11.4 Ana Correa as rosa Cuchillo.

Source: reproduced with permission of the theatre group.
 ArtS AnD trAnSItIOnAl juStICe 253

you cannot get them out of your head, and you feel them in your guts,
your soul while new questions keep coming up, questions that you keep
asking yourself as a human being. […] I feel there is a bridge between
families here, families that don’t have their children or their parents. I
feel I am intermediary to tell them that here the memory flourishes and
there is a justice […]

By listening and acting, Yuyachkani dignified the victims and their relatives
and transformed the personal stigma of abuse into the collective trauma of a
nation needing to heal. The troupe members heard stories and took testimoni-
als from those in the audience who had come to testify. Similarly to Milošević,
Ana Correa reflected on the socio-political situation in Peru at the moment she
started working as an actress in the theatre:

I have started working in the theatre 30 years ago. I have started work-
ing at very special political moment in my country, at the time when
military dictatorship started. I felt the need and desire to do something,
to talk to people and to talk about my feelings of what was happening
at that time.

Devised theatres like Dah and Yuyachkani ask audiences to engage more
actively with performance. The narratives they tell have no linearity and offer no
solutions to complex issues, but include images, multiple stories and actions,
often happening concomitantly. It is requested of audience members not to be
passive, but to be ‘active viewer[s], to be consumer[s], to reflect, to critically
think’.32 Such theatres also encourage free-thinking, because they bring to light
stories that are silenced or taboo; talk about the importance of remembrance of
the past; challenge the status quo; and offer opportunities to voice opposite, con-
tradictory sides and have them heard. As such, devised theatre is more complex
than classic theatre.

11.4 Photo exhibitions

With respect to photographs, Roland Barthes notes that they are always, to a cer-
tain extent, memento mori – the photographed images attest to what is already gone
‘whether or not the subject is dead’.33 Photographs, for Barthes, freeze the subject in
a moment of the past. Walter Benjamin, Susan Sontag and Barthes, among others,
refer to the ways in which photographic images ‘haunt us’, and thus pave the way
for their use by artists in installation contexts to visualise the past. Photographic
archives, according to Lerner, provide an ‘invaluable source of information’ and

32 Interview with Dijana Milošević, n 23.

33 Roland Barthes, Camera Lucida: Reflections on Photography (Farrar, Straus and Giroux, 1981) 96.
254 OlIverA SImIć

allow for reflection on pain and hope.34 They have a demonstrative, didactic func-
tion that presents evidence, but they also appeal to our emotions by representing
suffering and resistance. As Saona argues, ‘images become a preferred form of
testimonial, of truth-telling, because they seem to force the viewer to adopt the
perspective of the eyewitness’.35 Susan Sontag notes that ‘even if they are only
tokens […] they still perform a vital function. The images say […] don’t forget’.36

Case study C: Portraits of Reconciliation (rwanda)

The photographers Pieter Hugo and Lana Mesić went to southern Rwanda and
captured a greater series of unlikely, almost unthinkable, images than were
found in many other post-conflict contexts, including BiH. Most of these images
present survivors and perpetrators standing or sitting close to each other with
their bodies embodying what forgiveness and reconciliation mean to them today.
For the 20th commemoration of the 1994 genocide in Rwanda, a mini-exhibition
of the project was on display in The Hague city hall. Other exhibitions have taken
place in The Hague next to the Peace Palace, the International Criminal Court,
the Central Station and in the Het Nutshuis gallery. In late March 2015, the proj-
ect was presented in Rwanda itself. The project has also been featured in Zagreb,
New York, Tokyo, and Kigali and is accessible online.
The people who agreed to be photographed are part of a continuing national
effort towards reconciliation. They worked closely with the Association Modeste
et Innocent (AMI), a non-profit organisation established in 2000 and known for its
work in conflict resolution and the reconciliation process in Rwanda. AMI is rec-
ognised for bringing together former genocide perpetrators and genocide survi-
vors for reconciliation by using a community-based approach.37 In AMI’s program,
a small group of perpetrators and survivors are counselled over a few months,
culminating in the perpetrator’s formal request for forgiveness. Atonement is
a necessary precondition to forgiveness; acknowledgement of wrongdoing and
regret is crucial for a restorative approach to justice that takes into account its
communicative effects.38 If forgiveness is granted by the survivor, the perpetra-
tor and his family and friends typically bring a basket of offerings, usually food

34 Salomón Lerner Febres, ‘Prefacio’ in Commission for Truth and Reconciliation, In Order to
Remember – A Visual Narrative of the Internal Conflict in Perú [translation of: Comisión de la
Verdad y Reconciliación, Yuyanapaq: Relato Visual del Conflicto Armade Interno en el Perú]
(Fondo Editorial de la Pontificia Universidad Católica del Perú, 2003). See also the Museum of
Memory and Human Rights <www.museodelamemoria.cl/expos/yuyanapaq-para-recordar/>.
35 Margarita Saona, Memory Matters in Transitional Peru (Palgrave Macmillan, 2014) 51.
36 Susan Sontag, Regarding the Pain of Others (Picador, 2004) 115.
37 Peace Direct, Insight On Conflict: Association Modeste et Innocent (AMI), Peace Direct <www.
insightonconflict.org/conflicts/rwanda/peacebuilding-organisations/ami/>.
38 Cheah Wui Ling, ‘Justice as Practiced by Victims of Conflict: Post–World War II Movements as
Sites of Engagement and Knowledge’ in Martha Albertson Fineman and Estelle Zinsstag (eds),
Feminist Perspectives on Transitional Justice (Intersentia, 2013) 167.
 ArtS AnD trAnSItIOnAl juStICe 255

Figure 11.5 François (left) and epiphanie (right)

© Pieter Hugo/Creative Court.

and sorghum or banana beer bread. The accord is sealed with song and dance.39
Many of the victims and perpetrators are neighbours, living in close proximity to
one another, often sharing and helping one another.
François said:

I was in prison because I participated in the killing of her son. I went

to her and ask for forgiveness as I was feeling disturbed in my mind, I
could not let it rest if I didn’t ask for her pardon. Now, we share every-
thing. If she needs water, I fetch it for her. There is no suspicion between
us, neither at night nor in the daytime. We have no problem with each
other – we continue to live together. It is in this context that I asked for
her pardon, and now we live in harmony.

Epiphanie reflected on her experience:

He killed my child, then he came to ask me pardon. I immediately granted

it to him because he did not do it by himself – he was haunted by the devil.
I was pleased by the way he testified to the crime instead of keeping it in
(continued)

39 Susan Dominus and Pieter Hugo, ‘Portraits of Reconciliation’, The New York Times (online), 4 June
2014 <www.nytimes.com/interactive/2014/04/06/magazine/06-pieter-hugo-rwanda-portraits.
html?_r=0>.
256 OlIverA SImIć

(continued)

Figure 11.6 jean Pierre Karenzi (left) and viviane nyiramana (right)
© Pieter Hugo/Creative Court.

hiding, because it hurts if someone keeps hiding a crime he committed

against you. Before, when I had not yet granted him pardon, he could not
come close to me. I treated him like my enemy. But now, I would rather
treat him like my own child.

Reflecting on their experiences and willingness to forgive and reconcile, Jean

Pierre reported,

My conscience was not quiet, and when I would see her I was very
ashamed. After being trained about unity and reconciliation, I went to
her house and asked for forgiveness. Then I shook her hand. So far, we
are on good terms.

Viviane (pictured next to Jean Pierre) said,

He killed my father and three brothers. He did these killings with other
people, but he came alone to me and asked for pardon. He and a group of
other offenders who had been in prison helped me build a house with a
 ArtS AnD trAnSItIOnAl juStICe 257

covered roof. I was afraid of him – now I have granted him pardon, things
have become normal, and in my mind I feel clear.40

Reflecting on his experience during these photo shoots, Pieter Hugo stated
that the relationship between victims and the perpetrators varied widely. Some
pairs arrived and sat together easily, others were willing to be photographed, but
unable to go further. ‘There are clearly different degrees of forgiveness […] in the
photographs, the distance or closeness you see is pretty accurate’.41 While Hugo
intervened in the positions of participants, Mesić asked the participants to think
back to their moment of forgiveness, and if they felt comfortable in doing so, to
re-create that moment for her. In her photographs, many of the participants are
touching each other, and some are even hugging.42

Case study D: Yuyanapaq: Para Recordar (Peru)

The Truth and Reconciliation Commission (TRC) in Peru produced Yuyanapaq:
Para Recordar,43 a photo exhibition resulting from the investigations of the TRC.
The exhibit, which consists of37 selected black-and-white photographs, was first
staged by the TRC in 2003, and has been housed at the Museo de la Nación since
2009. The images are spread out through 27 rooms, and in the final room, vari-
ous audio tracks from the TRC hearings play in the background.44 The TRC has
chosen this medium to convey facts and also combat the indifference of the gen-
eral public. For the TRC members, photographs are invested with the capacity to
affect viewers on cognitive and emotional levels.45

Case study e: Ausencias [‘The Missing’] by Gustavo

Germano (Argentina)
During the military dictatorship in Argentina from 1976 to 1983, nearly 30,000
people disappeared without a trace. Argentine photographer Gustavo Germano
restages snapshots of Brazilian and Argentine families whose loved ones are
(continued)

40 n 67 at 3.
41 Ibid.
42 Rabiaâ Benlahbib, Pieter Hugo, and Lana Mesić, ‘Rwanda 20 Years: Portraits of Reconciliation’
(2014) 2 Dar Lugar 1 [translation of: Ruanda 20 Años: Retratos de Reconciliación].
43 Febres, ‘Prefacio’, n 34.
44 Carolina A Miranda, Remembering Peru’s Internal Conflict: Yuyanapaq at the Museo Nacional in
Lima (8 June 2009) c-monster.com <http://c-monster.net/2009/06/08/yuyapanaq/>.
45 Saona, n 35, 213.
258 Olivera Simić

(continued)

Figure 11.7 Gustavo Germano, Ausencias [Absences].

Source: reproduced with permission of the photographer.

Figure 11.8 Gustavo Germano, Ausencias [Absences].

Source: reproduced with permission of the photographer.
 ArtS AnD trAnSItIOnAl juStICe 259

among the ‘disappeared’, people who were tortured and murdered by dictatorial
regimes in Latin America from the 1960s to 1980s. He defines it as an exercise
of reflection on temporality and as a threshold that brings viewers to an illusory
parallel dimension where a viewer can understand what the disappearance of a
human being means. Ausencias strives to make visible those who are not; to dis-
play a history frozen in a space. The images powerfully convey the time that the
victims of repression have missed in their life, and the time the family lived without
enjoying their presence. Germano is a relative of a missing person. When he was
11, his brother, Eduardo, who at that time was 18, was abducted and disappeared.
Ausencias has travelled throughout Europe and Latin America since 2007.46

11.5 Points of debate and controversy

Artistic installations have limitations, in the sense that they can bring very modest
transformation, while the larger transformation still needs to come from structural
and legal reforms.47 Nevertheless, art in the transitional justice context can serve
as a gesture of political action against impunity and collective amnesia; an action
which resists denial and acknowledges harm. Art is an important tool of symbolic
justice that needs to be cherished and accounted for as a creative innovation to
respond to past atrocity.
In artistic spaces, audiences may share time and physical space, opening up
possibilities for dialogue and interaction, for sharing thoughts and feelings. As
Susanne Kardstet argues, legal settings constrain such ‘socioaffective mode[s] of
responses’ and often disappoint victims.48 However, while aesthetic experience
as symbolic justice can ‘subvert political power and re-create solidarity’,49 it can
also narrate the past in a way that can become an obstacle towards a reconcilia-
tory future. As Susanne Buckley-Zistel argues, transitional justice in post-conflict
societies is always a political process, and we have to maintain a critical stance
towards the political implications of its application.50 As such, the arts need more

46 Gustavo Germano, Ausencias Argentina (10 January 2016), Gustavo Germano Gallery <www.
gustavogermano.com/>.
47 Rubio-Marin, n 12, 17.
48 Susanne Karstedt, ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspec-
tive’ (2016) 8(1) Emotion Review 50, 53.
49 Ksenija Bilbija, Jo Ellen Fair, Cynthia E Milton, and Leigh A Payne, The Art of Truth-Telling
About Authoritarian Rule (The University of Wisconsin Press, 2005).
50 Susanne Buckley-Zistel, ‘Transitional Justice in Divided Societies: Potentials and Limits’ (Speech
delivered at the 5th European Consortium for Political Research General Conference, Potsdam
University, Germany, 10–12 September 2009).
260 OlIverA SImIć

interrogation and emphasis, as they have the potential to open or close space for
critical reconsideration of memory work, which should ‘reinforce the unification
of citizens, not their division’.51
Artistic installations have the potential to create narratives that can strengthen
or weaken the social fabric of the nation. They can create narratives of social
trauma through aesthetic choices that privilege mutual negotiation of conflicting
narratives and appeal to recognition of different individual experiences with vio-
lence. However, they can also reinforce one particular narrative over others. This
is important since audiences are more prone to respond to this form of bearing
witness than, for example, to courtroom testimony.
Aesthetic experience (both the production and the reception of art) may
result in symbolic reparation and healing52 of a particular victim subject or
whole community. One can argue that the arts may assist survivors’ well-being
and psychological healing. Aesthetic practices involve possible reconciliation
of inner and outer conflict. However, it would be naive to think that documen-
tary theatre or any other form of art, on its own, can trigger significant change
or by itself bring satisfaction to survivors. While it can serve as symbolic rec-
ognition of a victim’s harm, and serve as a ‘symbolic closure’, it still needs to
be accompanied by other initiatives.53 Art alone cannot address the needs of the
victims or communities who still strive to afford basic needs such as education,
health care and housing.
According to one theatre activist, ‘Theatre […] is [a] very useful and effec-
tive means which would need to be accompanied by complementary means in
order to mobilize society on transitional justice’.54 Nola Chilton, a documentary
theatre director from Israel, also has no illusions about what such theatre can do:
‘It can’t change very much, but it can at least bring people together’.55 Similarly,
Dijana Milošević notes,

Devised theatre can open space for discussion about certain topics, but it would
be naive to believe that it can make transformative changes. […] It can change

51 Mirjana Spasovska, ‘New Government, New History – New Divisions?’, Radio Slobodna Evropa
(online), 23 June 2012 [translation of: ‘Нова влада, нова историја – нови поделби?’] <www.
makdenes.org/content/article/24623301.html>.
52 Estelle Barrett, ‘Reconciling Difference: Art as Reparation and Healing’ (2003) 4 (1) Double Dialogues
1, 4 <www.doubledialogues.com/article/reconciling-difference-art-as-reparation-and-healing/>.
53 Brandon Hamber and Richard Wilson, ‘Symbolic Closure through Memory, Reparation and
Revenge in Post-conflict Societies’ (2002) 1 (1) Journal of Human Rights 35.
54 Nadia Siddiqui, Hadi Marifat, and Sari Kuovo, ‘Culture, Theatre and Justice: Examples from
Afghanistan’ in Rush and Simić, n 28, 129.
55 Linda Ben-Zvi, ‘Staging the Other Israel: The Documentary Theatre of Nola Chilton’ (2006) 50(3)
The Drama Review 42, 44.
 ArtS AnD trAnSItIOnAl juStICe 261

individual lives of spectators, to empower them, to make them more proactive and
in that way it can have wider effects, but without other social mechanisms, such
as law, courts, human rights, economy, it cannot resolve any structural problems.

Despite their growing numbers, projects of symbolic reparation still remain

largely under-researched and under-theorised, not because they are unimportant,
but because of the difficulty of finding systematic accounting for the wide range
of processes involved.56 As Simić and Daly argue, this may be in part because
researchers do not have access to sites, local languages or adequate contact with
local people to document such initiatives fully and accurately. In part, it may also
be because civil society and local justice mechanisms have only recently received
attention in the transitional justice literature, and in part because such mechanisms
are often overlooked in researchers’ analyses of reparations and reconciliation.57

11.6 Summary
Like all types of symbolic reparation, documentary theatre cannot make signifi-
cant individual or societal changes, but it can influence and contribute to trans-
formation. For reparations to fully achieve their potential, it is necessary that
corrective, rehabilitative social programmes are developed to meet the economic,
social and psychological needs of victims, communities and society at large. Sym-
bolic reparations such as, for example, the statue built in Shabunda which serves
as a memorial to the suffering of women in war have been welcomed by women
survivors of sexual violence in the Democratic Republic of Congo, but a clear
preference was expressed for tangible benefits to address the more concrete needs
of victims, to which a symbolic component might be attached.58
It would be naive to suggest that the arts alone can bring long-lasting peace,
but artistic projects can provide a necessary means of reflection on past or pres-
ent and ultimately hope for the future. Such symbolic representations of what
happened can help concretise a traumatic event, serve as focal points in the griev-
ing process, and be a physical or visual representation of what was lost.59 They
can also aid recovery and help an individual to come to terms with the event

56 Olsen, Payne, and Reiter, n 7, 37.

57 Olivera Simić and Kathleen Daly, ‘“One Pair of Shoes, One Life”: Steps towards Accountability
for Genocide in Srebrenica’ (2011) 5 International Journal of Transitional Justice 477, 491.
58 Read more about Shabunda Memorial in United Nations Office of the High Commissioner for
Human Rights, Report of the Panel on Remedies and Reparations for Victims of Sexual Violence
in the Democratic Republic of Congo to the High Commissioner for Human Rights, March 2011,
15–16, 22, 46 <www.refworld.org/docid/4d708ae32.html>.
59 Ibid.
262 OlIverA SImIć

over which they grieve while materialising society’s willingness to do things

differently.60

11.7 Discussion and tutorial questions

1) In what ways can art help societies overcome the legacy of recent human
rights violations?
2) What is the responsibility of artists in relation to crimes committed in ‘their
name’ (by their own group members)? What do you think of Milošević’s
statement about ‘responsibility’ that prompted her and Dah troupe members
to act?
3) Do artists have the moral right to perform while people around them are suf-
fering terribly?
4) Can art installations be a way of creating peace and bringing justice to the
victims of war?
5) What is the significance of documentary theatre in transitional justice
processes?
6) Can photo exhibitions spark tensions rather than bring cohesion and unity
among different communities? In what circumstances?

Suggested reading
A’ness, Francine, ‘Resisting Amnesia: Yuyachkani, Performance, and the Postwar
Reconstruction in Peru’ (2004) 56 Theatre Journal 395.
Barat, Clara Ramírez (ed), Transitional Justice, Culture and Society: Beyond Outreach
(Social Science Research Council, 2014).
Barnett, Dennis and Arthur Skelton, Theatre and Performance in Eastern Europe:
The Changing Scene (Rowman and Littlefield, 2007).
Bisschoff, Lizelle and Stefanie van de Peer, Art and Trauma in Africa: Representa-
tions of Reconciliation in Music, Visual Arts, Literature and Film (IB Tauris, 2012).
Campbell, Colm and Catherine Turner, ‘Utopia and the Doubters: Truth, Transition
and the Law’ (2008) 28 Legal Studies 374.
Cleveland, William, Art and Upheaval: Artists on the World’s Frontlines (New Village
Press, 2008).

60 Pablo de Greiff, ‘Justice and Reparations’ in Pablo de Greiff (ed), The Handbook of Reparations
(Oxford University Press, 2006) 451–477.
 ArtS AnD trAnSItIOnAl juStICe 263

Cohen, Cynthia, Roberto Gutiérrez Varea, and Polly O Walker (eds), Acting Together:
Performance and the Creative Transformation of Conflict: Volume I: Resistance
and Reconciliation in Regions of Violence (New Village Press, 2011).
Cohen, Cynthia, Roberto Gutiérrez Varea, and Polly O Walker (eds), Acting Together:
Performance and the Creative Transformation of Conflict: Volume II: Building Just
and Inclusive Communities (New Village Press, 2011).
Mengel, Ewald and Michaela Borzaga (eds), Trauma, Memory, and Narrative in the
Contemporary South African Novels (Rodopi, 2012).
Milošević, Dijana, ‘The Role of the Artist in the Dark Times’ in Dennis Barnett and
Arthur Skelton (eds), Theatre and Performance in Eastern Europe: The Changing
Scene (Rowman and Littlefield, 2007).
Möller, Frank, Visual Peace: Images, Spectatorship, and the Politics of Violence (Pal-
grave Macmillan, 2013).
Simić, Olivera, ‘Breathing Sense into Women’s Lives Shattered by the War: Dah
Theatre Belgrade’ (2010) 14 Law Text Culture 117.
Simić, Olivera, ‘Stories We Tell: Documentary Theater, Performance and Justice in
Transition’ in Lavinia Stan and Nadya Nedelsky (eds), Post-Communist Tran-
sitional Justice: Lessons from Twenty-Five Years of Experience (Cambridge Uni-
versity Press, 2015).
Thompson, James, Jenny Hughes, and Michael Balfour (eds), Performance in Place
of War (The University of Chicago Press, 2009).

Other resources
For Those Who Can Tell No Tales (Directed by Jasmila Žbanić, Deblokada Produkcija, 2013).
Grbavica: Esma’s Secret (Directed by Jasmila Žbanić, Produced by Tanja Aćimović,
Dogwoof Pictures, 2006).
Jarr, Alfredo, The Rwanda Project: 1994–2000 (2006) Open Democracy <www.
opendemocracy.net/arts/rwanda_3412.jsp>.
The Milk of Sorrow (Directed by Claudia Llosa, Generalitat de Catalunya, 2009).
Playback Theatre <www.playbacktheatre.org/>.
Ubaldo, Rafiki, Temples of Memory: Rwanda, Temples of Memory <www.
templesofmemory.org/>.

Bibliography
Articles/books/reports
Bahun, Sanja, ‘Transitional Justice and the Arts: Reflections on the Field’ in Clau-
dio Corradetti, Nir Eisikovits, and Jack Volpe Rotondi (eds), Theorizing Transi-
tional Justice (Ashgate, 2015).
Barthes, Roland, Camera Lucida: Reflections on Photography (Farrar, Straus and
Giroux, 1981).
Bell, Vikki, The Art of Post-Dictatorship: Ethics and Aesthetics in Transitional Argen-
tina (Routledge, 2014).
264 OlIverA SImIć

Benlahbib, Rabiaâ, Pieter Hugo, and Lana Mesić, ‘Rwanda 20 Years: Portraits of
Reconciliation’ (2014) 2 Dar Lugar 1 [translation of: Ruanda 20 Años: Retratos
de Reconciliación].
Ben-Zvi, Linda, ‘Staging the Other Israel: The Documentary Theatre of Nola Chil-
ton’ (2006) 50(3) The Drama Review 42.
Bilbija, Ksenija, Jo Ellen Fair, Cynthia E Milton, and Leigh A Payne, The Art of Truth-
Telling About Authoritarian Rule (The University of Wisconsin Press, 2005).
Bloomfield, David, Teresa Barnes, and Luc Huyse (eds), Reconciliation After Vio-
lent Conflict: A Handbook (International Institute for Democracy and Electoral
Assistance, 2003).
Buckley-Zistel, Susanne and Ruth Stanley (eds), Gender in Transitional Justice (Pal-
grave Macmillan, 2011).
Clark, Phil, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda:
Justice without Lawyers (Cambridge University Press, 2010).
Cole, Catherine, ‘Performance, Transitional Justice, and the Law: South Africa’s
Truth and Reconciliation Commission’ (2007) 59 Theatre Journal 168.
Corradetti, Claudio, Nir Eisikovits, and Jack Volpe Rotondi (eds), Theorizing Transi-
tional Justice (Ashgate, 2015).
de Greiff, Pablo (ed), The Handbook of Reparations (Oxford University Press,
2006).
de Greiff, Pablo, ‘Justice and Reparations’ in Pablo de Greiff (ed), The Handbook of
Reparations (Oxford University Press, 2006).
de Greiff, Pablo, ‘On Making the Invisible Visible: The Role of Cultural Interven-
tions in Transitional Justice Processes’ in Clara Ramírez-Barat (ed), Transi-
tional Justice, Culture and Society: Beyond Outreach (Social Science Research
Council, 2014).
Fineman, Martha Albertson and Estelle Zinsstag (eds), Feminist Perspectives on
Transitional Justice (Intersentia, 2013).
Haldemann, Frank, ‘Another Kind of Justice: Transitional Justice as Recognition’
(2008) 41 Cornell International Law Journal 675.
Hamber, Brandon, Transforming Societies After Political Violence: Truth, Reconcilia-
tion and Mental Health (Springer, 2009).
Hamber, Brandon and Ingrid Palmary, ‘Gender, Memorialization, and Symbolic
Reparations’ in Ruth Rubio-Marin (ed), The Gender of Reparations: Unsettling
Sexual Hierarchies While Redressing Human Rights Violations (Cambridge Uni-
versity Press, 2009).
Hamber, Brandon and Richard Wilson, ‘Symbolic Closure through Memory, Rep-
aration and Revenge in Post-conflict Societies’ (2002) 1(1) Journal of Human
Rights 35–53.
Karstedt, Susanne, ‘The Emotion Dynamics of Transitional Justice: An Emotion
Sharing Perspective’ (2016) 8(1) Emotion Review 50.
Knežević, Dubravka, ‘Till the Last Breath’ (1995) Sept–Dec Scena 5.
Ling, Cheah Wui, ‘Justice as Practiced by Victims of Conflict: Post-World War II
Movements as Sites of Engagement and Knowledge’ in Martha Albertson
 ArtS AnD trAnSItIOnAl juStICe 265

Fineman and Estelle Zinsstag (eds), Feminist Perspectives on Transitional Jus-

tice (Intersentia, 2013).
MacLachlan, Alice and Allen Speight (eds), Justice, Responsibility and Reconciliation
in the Wake of Conflict (Springer, 2013).
Minow, Martha, Between Vengeance and Forgiveness: Facing History after Genocide
and Mass Violence (Beacon Press, 1998).
Minow, Martha, ‘Breaking the Cycles of Hatred’ in Nancy Rosenblum (ed), Break-
ing the Cycles of Hatred: Memory, Law and Repair (Princeton University Press,
2002).
Oddey, Alison, Devising Theatre: A Practical and Theoretical Handbook (Routledge,
1994).
Olsen, Tricia D, Leigh A Payne and Andrew G Reiter (eds), Transitional Justice in Bal-
ance: Comparing Processes, Weighing Efficacy (United States Institute of Peace
Press, 2010).
Parent, Geneviève, ‘Reconciliation and Justice after Genocide: A Theoretical Explo-
ration’ (2010) 5 Genocide Studies and Prevention 287.
Ramírez-Barat, Clara (ed), Transitional Justice, Culture and Society: Beyond Out-
reach (Social Science Research Council, 2014).
Reparation and Rehabilitation Committee, Parliament of the Republic of South
Africa, Report (1998) vol 6, part 2.
Rosenblum, Nancy (ed), Breaking the Cycles of Hatred: Memory, Law and Repair
(Princeton University Press, 2002).
Rubio-Marin, Ruth (ed), The Gender of Reparations: Unsettling Sexual Hierarchies
While Redressing Human Rights Violations (Cambridge University Press, 2009).
Rush, Peter D and Olivera Simić (eds), The Arts of Transitional Justice: Culture, Activ-
ism, and Memory after Atrocity (Springer, 2014).
Russell, Catherine, Experimental Ethnography: The Work of Film in the Age of Video
(Duke University Press, 1999).
Saona, Margarita, Memory Matters in Transitional Peru (Palgrave Macmillan, 2014).
Siddiqui, Nadia, Hadi Marifat, and Sari Kuovo, ‘Culture, Theatre and Justice:
Examples from Afghanistan’ in Peter D Rush and Olivera Simić (eds), The Arts
of Transitional Justice: Culture, Activism, and Memory after Atrocity (Springer,
2014).
Sigsworth, Romi and Nahla Valji, ‘Continuities of Violence Against Women and
the Limitations of Transitional Justice: The Case of South Africa’ in Susanne
Buckley-Zistel and Ruth Stanley (eds), Gender in Transitional Justice (Palgrave
Macmillan, 2011).
Simić, Olivera and Kathleen Daly, ‘“One Pair of Shoes, One Life”: Steps Towards
Accountability for Genocide in Srebrenica’ (2011) 5 International Journal of
Transitional Justice 477.
Simić, Olivera and Dijana Milošević, ‘Enacting Justice: The Role of Dah Theatre Com-
pany in Transitional Justice Processes in Serbia and Beyond’ in Peter D Rush
and Olivera Simić (eds), The Arts of Transitional Justice: Culture, Activism, and
Memory After Atrocity (Springer, 2014).
266 OlIverA SImIć

Skoller, Jeffrey, Shadows, Specters, Shards: Making History in Avant-Garde Film (Uni-
versity of Minnesota Press, 2005).
Snider, Laureen, ‘Towards Safer Societies: Punishment, Masculinities and Vio-
lence Against Women’ (1998) 38 British Journal of Criminology 1.
Sontag, Susan, Regarding the Pain of Others (Picador, 2004).
Stan, Lavinia and Nadya Nedelsky (eds), Post-Communist Transitional Justice: Les-
sons from Twenty-Five Years of Experience (Cambridge University Press, 2015).
Urban Walker, Margaret, ‘The Expressive Burden of Reparations: Putting Meaning
into Money, Words, and Things’ in Alice MacLachlan and Allen Speight (eds),
Justice, Responsibility and Reconciliation in the Wake of Conflict (Springer, 2013).
Urban Walker, Margaret, ‘Truth Telling as Reparations’ (2010) 41 Metaphilosophy 529.
Zapperi, Giovanna, ‘Woman’s Reappearance: Rethinking the Archive in Contempo-
rary Art – Feminist Perspectives’ (2013) 105 Feminist Review 21.

Other
Art21, Interview with Alfredo Jaar (‘The Gramsci Trilogy’, 11 March 2007) <www.
art21.org/texts/alfredo-jaar/interview-alfredo-jaar-the-gramsci-trilogy>.
Barrett, Estelle, ‘Reconciling Difference: Art as Reparation and Healing’ (2003) 4
Double Dialogues 1 <www.doubledialogues.com/article/reconciling-difference-
art-as-reparation-and-healing/>.
Buckley-Zistel, Susanne, Transitional Justice in Divided Societies: Potentials and Lim-
its (Speech delivered at the 5th European Consortium for Political Research
General Conference, Potsdam University, Germany, 10–12 September 2009).
Dominus, Susan and Pieter Hugo, ‘Portraits of Reconciliation’ The New York
Times (online), 4 June 2014 <www.nytimes.com/interactive/2014/04/06/
magazine/06-pieter-hugo-rwanda-portraits.html?_r=0>.
Febres, Salomón Lerner, Memory of Violence and Drama in Peru: The Experience of
the Truth Commission and the Yuyachkani Theater Group (Speech delivered at
the Just Performance: Enacting Justice in the Wake of Violence Symposium,
Brandeis University, USA, 1–2 December 2011).
Febres, Salomón Lerner, ‘Prefacio’ in Commission for Truth and Reconciliation, In
Order to Remember – A Visual Narrative of the Internal Conflict in Perú [transla-
tion of: Comisión de la Verdad y Reconciliación, Yuyanapaq: Relato Visual del
Conflicto Armade Interno en el Perú] (Fondo Editorial de la Pontificia Universi-
dad Católica del Perú, 2003).
Germano, Gustavo, Ausencias Argentina (10 January 2016) Gustavo Germano Gal-
lery <www.gustavogermano.com/>.
Interview with Nataša Govedarica (Skype, 7 October 2013).
Interview with Dijana Milošević (Skype, 12 January 2016).
Komarčević, Dušan, ‘Women in Black Remembered Abducted From a Train in
Strpci: Those Who Committed the Crimes Remain at Large’ E-Novine (online),
17 January 2016 <www.e-novine.com/drustvo/59890-Kreatori-zloina-dalje-
slobodi.html> [translation of: ‘Žene u Crnom Pamte Otete iz Voza u Štrpcima:
Kreatori Zločina i Dalje Na Slobodi’].
 ArtS AnD trAnSItIOnAl juStICe 267

Miranda, Carolina A, Remembering Peru’s Internal Conflict: Yuyanapaq at the

Museo Nacional in Lima (8 June 2009) c-monster.com <http://c-monster.
net/2009/06/08/yuyapanaq/>.
Museum of Memory and Human Rights <www.museodelamemoria.cl/expos/
yuyanapaq-para-recordar/>.
Parkin Daniels, Joe, ‘Colombian Artist Melts Guns into Tiles to Make “Anti-
monument” to Conflict’ The Guardian (online), 11 December 2018
<www.theguardian.com/world/2018/dec/10/doris-salcedo-colombian-
artist-melts-guns-tiles-peace-monument>
Peace Direct, Insight on Conflict: Association Modeste et Innocent (AMI), Peace Direct
<www.insightonconflict.org/conflicts/rwanda/peacebuilding-organisations/
ami/>.
Spasovska, Mirjana, ‘New Government, New History – New Divisions?’, Radio Slo-
bodna Evropa (online), 23 June 2012 (translation of: ‘Нова влада, нова историја –
нови поделби?’) <www.makdenes.org/content/article/24623301.html>.
United Nations Office of the High Commissioner for Human Rights, Report of the
Panel on Remedies and Reparations for Victims of Sexual Violence in the Dem-
ocratic Republic of Congo to the High Commissioner for Human Rights, March
2011 <www.refworld.org/docid/4d708ae32.html>.
Williams, Timothy, Entering the Tiger Zone (2015) University of Marburg <www.uni-
marburg.de/konfliktforschung/Termine/entering-tiger-zone>.
Yuyachkani Cultural Group, Historia <www.yuyachkani.org/historia.html>.
Yuyachkani Cultural Group, Historia del Grupo <http://hemisphericinstitute.org/
cuaderno/yuyachkani/group.html>.
Chapter 12

Memorials and transitional justice

Susanne Buckley-Zistel and Annika Björkdahl

12.1 Introduction1
The year 2015 was full of commemorations: 100 years after the Armenian geno-
cide, 70 years after the liberation of Auschwitz, and 20 years after the genocide
of Srebrenica. All three events are referred to as genocides, all three events are
remembered in form of memorials. Memorials portray pain and suffering, some-
times figuratively, sometimes abstract. They provide a place for public commem-
orations and quiet mourning. They seek to link the past to the present through
continuously retelling what once happened. They serve as a reminder of people
lost and pain endured.
Post-conflict memory landscapes embed and convey meaning and are thus
inexorably linked to the legacy of the conflict, to struggles over interpretations
about the violent past and to the sites where remembering takes place. Construct-
ing memorials after atrocities has become an important aspect of coming to terms
with atrocities and thus forms a central component of transitional justice. This
chapter takes a look at how memorials function in this context. In contrast to mea-
sures such as tribunals and truth commissions, memorials – and commemoration
more generally – are a more recent acquisition in the repertoire of dealing with the
past. Even though memorials have been around for a long time, connecting them
to more constructive ways of coming to terms with the past and promoting their
establishment as part of transitional justice processes in post-violence societies is
a relatively new phenomenon. Thus, this chapter aims to address the following

1 Susanne Buckley-Zistel is grateful for the senior fellowship of the Käte Hamburger Kolleg for
Global Cooperation Research at the University of Duisburg-Essen, Germany, in the context of
which this chapter was written. Annika Björkdahl appreciates the funding from the Swedish
Research Council (D0017001) that made this research possible.
270 BUCKLEY-ZISTEL AND BJÖRKDAHL

questions: what functions do memorials play in the transition to justice? Who

engages with commemoration at memorials and for what ends? What are the ways
in which memorials work in the context of transitional societies?

12.2 Key concepts, definitions and approach

Memorials are material or virtual objects which serve to represent events or per-
sons who should not be forgotten. In the context of transitional justice the lat-
ter mainly refers to victims of human rights abuses during wars, ethno-political
conflicts, repressive dictatorships, terrorist attacks, and apartheid, as well as
genocides. Their main objectives are based on a number of political and ethical
assumptions, such as providing an adequate site for mourning, holding perpetra-
tors accountable, vindicating the dignity of victims, putting past wrongs right and
contributing to reconciliation.
Memorials often employ a common aesthetic language communicating a key
message: we must not forget! It is important to note, though, that memorials can
never be an accurate replica of the past but only offer a particular interpretation
of an event, which may be contested or subject to change over time. Neverthe-
less, they seek to fix and store the representation of the atrocity through turning
it into a monument that prevails and is available to future generations, often with
the intention to educate the youth and in doing so to prevent the recurrence of the
atrocity. Never again! is thus a maxim of many sites. In this sense, memorials
exist in the present to tell us something about the past while seeking to affect the
future.
Memorials may be material and tangible, but they are also increasingly
virtual and web-based allowing for the participation of a larger group of activ-
ists in different geographic locations.2 For Judy Barsalou, three forms of mate-
rial memorials – as well as memorialisation – can be distinguished: authentic
sites, at the places where the atrocities occurred; constructed sites, which may
be anywhere and are often more abstract and conceptual; and activities, such as
commemorations and peace marches.3 A number of different actors may initiate

2 See, eg, Digital Monument to the Jewish Community in the Netherlands (2001) Jewish Histori-
cal Museum <www.joodsmonument.nl/?lang=en>; Human Rights & Democracy for Iran, Omid:
A Memorial in the Defense of Human Rights in Iran (2016) Abdorrahman Boroumand Founda-
tion <www.iranrights.org/memorial>; Korean War Veterans Digital Memorial (2015) Korean War
Legacy Foundation <www.kwvdm.org/>; Lives of the First World War (12 May 2014) Imperial
War Museum <https://livesofthefirstworldwar.org/>.
3 Judy M Barsalou, ‘Reflecting the Fractured Past: Memorialisation, Transitional Justice and the
Role of the Outsiders’ in Susanne Buckley-Zistel and Stefanie Schäfer (eds), Memorials in Time of
Transition (Intersentia, 2014) 49.
 MeMorIals and transItIonal justICe 271

memorial sites, ranging from those behind civil society initiatives to national govern-
ments or international organisations. Erecting memorials, such as murals in Belfast,
Northern Ireland, or on Cairo’s Tahrir Square, Egypt, can be spontaneous and inex-
pensive, rendering it a suitable tool for community action.4 The process can, however,
be very slow if the different parties involved – including different groups of victims –
struggle over the form of and meaning portrayed by a memorial. For instance, the
Memorial to the Sinti and Roma Victims of National Socialism or Memorial to the
Sinti and Roma of Europe murdered by the National Socialist regiem was inaugurated
in 2012 in Berlin, after 20 years of intense debate about its message and aesthetic form.
In the context of transitional justice, memorials are often referred to as sym-
bolic reparations, in contrast to material reparations such as financial compensa-
tion. This ties in with an increased focus on victims more generally, as expressed
by the Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law by the United Nations.5 Repara-
tions are often also listed as an instrument of restorative justice because they seek
to improve community relations, and recent truth commissions, such as in Liberia
and in East Timor, have included the quest for memorials in their recommenda-
tions, alongside other mechanisms such as prosecution or institutional reform.6
Importantly, the way the past is depicted in a memorial depends on the par-
ticular experience of violence.7 After dictatorship and political repression, where
violence was mainly top-down and exercised by the government, in many cases
a culture of impunity prevails and information about the whereabouts of the dis-
appeared remains concealed. In such a scenario, memorials often point at the
absence of individuals. Where possible, lobby groups or victims’ associations
construct them at authentic places, such as prisons or torture centres. Robben
Island, a former prison where Nelson Mandela was held during Apartheid, or
the torture centre Memorial Londres 38 in Santiago di Chile, from where many
political activists were disappeared, illustrate this tendency. Ethno-political con-
flicts where violence occurred between two social groups, in contrast, often either

4 Brandon Hamber, Liz Ševčenko, and Ereshnee Naidu, ‘Utopian Dreams or Practical Possibilities?
The Challenges of Evaluating the Impact of Memorialization in Societies in Transition’ (2010)
4(3) International Journal of Transitional Justice 397.
5 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Vio-
lations of International Human Rights Law and Serious Violations of International Humanitarian
Law, GA Res 60/147, UN GA, 60th sess, 64th plen mtg, Agenda Item 71(a), UN Doc A/Res/60/147
(adopted and proclaimed 16 December 2005) <www.unhcr.org/refworld/docid/4721cb942.html>.
6 Ereshnee Naidu, ‘Memorialisation in Postconflict Societies in Africa: Potentials and Challenges’
in Buckley-Zistel and Schäfer, n 3, 33.
7 Barsalou, n 3, 52–55.
272 BUCKLEY-ZISTEL AND BJÖRKDAHL

lead to the construction of memorials which reinforce the division of the society
by claiming an exclusive victim status, such as the Ovcara Memorial Center in
Vukovar, Croatia, or to attempts to foster some form of mutual understanding
and potential future reconciliation, as exemplified by the Sierra Leone Peace
Museum. When violence took on an extreme form, to the point of annihilation,
such as in the case of genocides, memorials may portray shock and horror – as in
many Rwandan memorials and the Cambodian killing fields – through displaying
human remains, including bones and skulls. One strategy here is to emphasise the
enormity of the crime and the magnitude of the destruction.

12.3 overview
It is not surprising that memorials have entered the field of transitional justice as
potential mechanisms to deal with the legacy of a violent past. Since 1970 and
1980 there has been a memory boom,8 in particular regarding the commemoration
of the Holocaust and World War II, leading to what Daniel Levy has termed the
memory imperative.9 Remembering has become a duty. This coincides with an
important shift in the culture of remembrance away from commemorating war
heroes who supposedly testify to a nation’s strength and invincibility, such as
depicted in memorials to fallen soldiers or to veterans. More recently, victims –
chief carriers of the moral weight regarding the atrocities committed – have
become the focus of attention of commemorations.10 This is, for instance, cen-
tral to the rising number of memorials built in the shape of so-called walls of
names, such as at the Potočari Memorial in Srebrenica, Bosnia, or walls with
photographs, such as at the Kigali Memorial Center, Rwanda, or the Tuol Sleng
Genocide Museum, Cambodia. Naming or depicting victims identifies them as
individuals, preventing their submersion in an anonymous and amorphous mass
of people killed, and gives them back some dignity.
Transitional justice, too, has in recent years strengthened its focus on vic-
tims, leading to its almost natural intersection with the field of memory studies.11
In its initial phase, the focus was mainly on perpetrators in order to identify and
hold them accountable, not at least due to a strong focus on criminal prosecution.

8 Jay Winter, ‘Notes on the Memory Boom: War, Remembrance and the Uses of the Past’ in Duncan
Bell (ed), Memory, Trauma and World Politics: Reflections on the Relationship Between Past and
Present (Palgrave Macmillan, 2006) 61.
9 Daniel Levy, ‘Changing Temporalities and the Internalization of Memory of Culture’ in Yifat Gut-
man, Adam D Brown, and Amy Sodaro (eds), Memory and the Future: Transnational Politics,
Ethics and Society (Palgrave Macmillan, 2010) 18.
10 Ibid 62.
11 See also Chapter 2 in this volume, Andrew G Reiter, ‘The development of transitional justice’.
 MeMorIals and transItIonal justICe 273

At present, victims are increasingly identified as target audiences of transitional

justice, as well as its agents. The notion of agency is apparent in the context of
retributive justice whereby victims now participate in criminal proceedings at the
International Criminal Court, of restorative justice due to their active role in truth
commissions, as well as in the design and organisation of memorials and memo-
rial sites.12
Parallel to the inclusion of victims in memorial processes, the aesthetic form
of some memorials has changed, giving way to a new memorial culture. There has
been a shift away from figurative depictions of strong heroic persons or national
symbols – set in solid stone such as marble or granite, and leaving no room for
interpretation – to more conceptual sites which encourage onlookers to think
and reflect. Instead of dictating one particular interpretation of past events, they
invite viewers to form their own opinion, in a sense liberating and democratising
remembrance. It is no longer the initiators or artists who dictate memory; rather,
visitors may draw on their own, personal experience to create meaning. Consider-
ing that memorials often make reference to repressive dictatorships, this form of
liberating the mind is an important symbolic, yet highly political, step.
These more recent sites avoid sculptural structures. Some, such as the State
War Memorial in Perth, employ water features, with still water reflecting visitors
and the sky, or running water, pointing to the moving of time, such as the 9/11
Memorial in New York. Others take the form of gardens serving as places for
reclusion and reflection (for example, the Sharpeville Memorial Garden or the
Kigali Memorial Center in Rwanda), open spaces inviting opening minds, or nar-
row spaces transmitting the claustrophobic experience of death and destruction.
Maya Lin’s Vietnam Veterans Memorial in Washington, a gap in the ground remi-
niscent of an open wound, or Peter Eisenman’s Memorial to the Murdered Jews
of Europe in Berlin, which consists of 2,711 narrowly assembled stelae (concrete
blocks), serve to illustrate this trend. In and of themselves, these sights have no
symbolic significance to link them to the atrocities; it is the personal experience
and interpretation of the visitor that matters.
It is important to note, however, that despite this recent trend, memorials with
more imposing interpretations of the past abound, such as the Memorial in Com-
memoration of Famines’ Victims in Ukraine. The above examples suggest mem-
ory culture should thus be read as a comment on and criticism of authoritative

12 Thorsten Bonacker, Anika Oettler, and Christoph Safferling, ‘Valorising Victims’ Ambivalences
in Contemporary Trends in Transitional Justice’ in Thorsten Bonacker and Christoph Safferling
(eds), Victims of International Crimes: An Interdisciplinary Discourse (Asser Press/Springer,
2013) 280.
274 BUCKLEY-ZISTEL AND BJÖRKDAHL

memorials of past and present, which is why they are often referred to as counter-
memorials. We shall return to this aspect again below.

Function of memorials
In the context of transitional justice, memorials fulfil different functions which –
at the far end of the spectrum – may lead to a better understanding between the
parties to the conflict and an increase of knowledge about and acknowledgement
of the crimes committed on one side, or a perpetuation of the division between
the parties and a politicisation of remembrance on the other.13 Regarding their
positive impact, first, they may serve to (re-)establish the dignity of the victims
through offering a gesture of symbolic reparation. This carries the message that
individuals or groups are now accepted and respected by the society. In cases
where victims were persecuted due to their faith, race or ethnicity, sexual orien-
tation or political views, publicly acknowledging this aspect affirms this part of
their identity.
Second, memorials have the potential to stimulate public debates about the
crimes committed, including discussions about their causes and consequences,
and in some cases also about the conditions to which victims of these human rights
abuses are subjected at present, such as continued discrimination and marginalisa-
tion. They may turn into sites of conscience at which various interest groups can
influence ongoing discussions and stimulate civil engagement to prevent similar
atrocities being committed in the future.14 This may be of great significance for
societies in transition.
Third, from the perspective of transforming the conflict that caused the human
rights abuses, memorials are occasionally intended to improve the relationship
between the parties to the conflict and to arrive at some form of rapprochement
between them. Some memorials provide spaces where people affected can share
their experiences and views about past events in order to reduce divisions and
strengthen commonalities. This is sometimes linked to promoting a form of mem-
ory which contributes to nation-building.15
So far, the function of memorials in the context of transitional justice has
been portrayed in a rather positive way. Yet how about the situation in which
the suffering of victims of human rights abuses is not publicly known or is even

13 See also Susanne Buckley-Zistel and Stefanie Schäfer, ‘Memorials in Time of Transition’ in Buck-
ley-Zistel and Schäfer, n 3, 9.
14 Sebastian Brett et al, Memorialization and Democracy: State Policy and Civic Action (Interna-
tional Center for Transitional Justice, 2007) 7.
15 Timothy G Ashplant, Graham Dawson, and Michael Roper (eds), Commemorating War: The Poli-
tics of Memory (Transaction Publishers, 2004) 7.
 MeMorIals and transItIonal justICe 275

subject to denial? In these cases, memorials are sites of resistance to a culture of

impunity and function to draw attention to what is silenced, as depicted in the
memorial to homosexuals elaborated in the next section. For affected groups, this
is often an important element in times of transition. Moreover, since the interpre-
tation of the past may be contested by the parties to the conflict, memorials may
turn into sites at or about which this contestation is fought out. The case of the
memorial in Srebrenica (discussed below) serves to illustrate this point.
In addition to public functions of memorials, they also serve a deeply private
purpose as sites of bereavement and reflection.16 For those left behind, memorials
may turn into spaces where they feel close to their deceased or disappeared loved
ones. Taking care of commemoration sites may then turn into a ritual which helps
with the personal grieving process, similar to looking after the grave of a loved one.17
Bearing these functions in mind, the following section introduces two memo-
rials which were erected in different contexts and which serve different functions.
While the memorial in Srebrenica responds to a form of conflict that is legally
defined as genocide, the memorial in Berlin is dedicated to victims of repression.
The first was established almost instantly, the second took more than 70 years to
materialise.

Case study a: Srebrenica-Potocari Memorial Centre

The Dayton Peace Accord marked the end of the war in Bosnia-Herzegovina
(BiH) and the beginning of a transition to peace and justice. How to deal with
the atrocities committed during the war and how to address calls for justice
has become contested in the deeply divided society of BiH. To acknowledge
past sufferings, rehabilitate the dignity of victims and support personal griev-
ing processes, a number of memorials have been erected. The largest and per-
haps most renowned of them is the Srebrenica-Potocari Memorial Centre, outside
the small town of Srebrenica in eastern Bosnia and Herzegovina, constructed
to commemorate the genocide that took place there in July 1995 when more
than 8,000 men and boys were killed by the Bosnian Serb forces. The memo-
rial addresses the absences brought about by sudden and violent killings – the
losses of the embodied presence, participation in everyday life and relationships,
emotional equilibrium among bereaved people and, ultimately, the memory of
someone who once lived.
During the 1992–1995 war, the town of Srebrenica was under siege. Due to
imminent threats against its population it was designated by the UN as one of six
(continued)

16 Jay Winter, Sites of Memory, Sites of Mourning: The Great War in European Cultural History
(Cambridge University Press, 1995) 3.
17 Julia Viebach, ‘Alétheia and the Making of the World: Inner and Outer Dimensions of Memorials
in Rwanda’ in Buckley-Zistel and Schäfer, n 3, 89.
276 BUCKLEY-ZISTEL AND BJÖRKDAHL

(continued)
‘safe areas’ in BiH and protected by 400 Dutch peacekeepers. As a consequence,
many Bosniaks sought refuge in the town to escape the ethnic cleansing that
took place in eastern BiH and the town’s population increased dramatically. In
1995, the town was taken over by the Bosnian Serb forces, and many fled to the
UN camp a few kilometres away in the village of Potocari. There the UN peace-
keepers watched as Europe’s largest single war crime since World War II was
committed. After being separated from their families by Bosnian Serb forces,
some 15,000 men and boys fled through the woods trying to reach the town of
Tuzla and the territory controlled by the Bosnian Army. The flood of Bosniaks out
of Potocari has been called the put smrti – the ‘journey of death’ – and Potocari
became the site of the only war crime in Europe that has been defined as geno-
cide since the Holocaust. Today, the town hosts the largest memorial in BiH in
what is now the Serb-led entity Republika Srpska (RS).
The construction of the Srebrenica-Potocari Memorial Centre was con-
tested from its inception. The first commemoration, organised by a small group
of surviving family members, mostly women, occurred on 11 July 1999, when
they gathered in Potocari and held a funeral service for the killed and miss-
ing. The materialisation of the memorial was largely influenced by the deter-
mined efforts of victim-advocacy groups such as the Mothers of Srebrenica and
followed by the support of international actors. Victims and survivors of the
genocide fought hard for the memorial to be built in Srebrenica itself. Fierce
opposition came from the nationalist Bosnian Serb political elite, of whom many
denied the genocide, obstructed the processes and demanded such a memorial
to be erected in the Federation of BiH, where Bosniaks today are the majority.18
In 2000, after years of contestation, the High Representative, Wolfgang Petri-
tsch, used his executive powers to place the memorial outside Srebrenica at
the Potocari base in accordance with the views of the victims and survivors of
the genocide. The memorial was finally inaugurated by then US President Bill
Clinton on 20 September 2003.

aesthetic language
The memorial complex is composed of three parts. One is the ‘Battery factory
Potocari’, used as a base by the Dutch battalion Dutchbat, but which is now
reconstructed as a museum space, hosting the Memorial Room. The cemetery
includes a memorial wall where the names of the victims buried in the cemetery
following the July 1995 genocide are inscribed. The number of killed and buried
marks the entrance of the cemetery: ‘8,372’ is inscribed on a block of marble, fol-
lowed by an ellipsis indicating that this figure is not final as there are people still
missing and unidentified.19 So far 5,500 victims have been buried at the cemetery,
all with a tombstone bearing their name and birth year and a phrase from the
Qur’an. A single wooden cross stands out at the grave of a Catholic inhabitant of

18 Christian Braun, ‘The Srebrenica-Potočari Memorial: Promoting (In)Justice?’ in Buckley-Zistel

and Schäfer, n 3, 189.
19 Ibid.
 MeMorIals and transItIonal justICe 277

Figure 12.1 Inside the Memorial room in Potocari-srebrenica.

Source: Photographed by susanne Buckley-Zistel.

the town who was killed during the genocide and thus buried in the cemetery in
2010 when his remains were recovered.
The hall, where approximately 4,000 refugees stayed for two days in July
1995 under deteriorating conditions, is dreary and depressing, cold and empty,
except for two large black cubic constructions situated opposite each other in
the middle of the building. In one of the two cubic spaces, there are 20 personal
narratives displayed with a photo, a short life story and one personal belong-
ing of a victim who is buried or still missing. These narratives reveal that it was
not only combatants who were killed as the stories include old men and chil-
dren who could not have been combatants. In the other cubic space, a 30-minute
documentary film, A Cry from the Grave by Muhamed Mujkic, a filmmaker from
BiH, and the British director Leslie Woodhead, is screened.20 The film provides a
reconstruction of day-by-day events preceding and following the Srebrenica fall.
It is based on the recordings made during the exhumation of mass graves, testi-
monies of the surviving families, and testimonies of the Dutch ‘blue helmets’, as
well as original video recordings from July 1995. The row of pictures and posters
with quotes, maps and court verdicts on the walls of the hall provides a frame-
work to the narratives presented in the documentary and the personal stories on
(continued)

20 Olivera Simić, ‘Remembering, Visiting and Placing the Dead: Law, Authority and Genocide in
Srebrenica’ (2009) 13 Law Text Culture 273.
278 BUCKLEY-ZISTEL AND BJÖRKDAHL

(continued)

display. A quote from the ICTY verdict against the Serb general Radislav Krstic,
which refers to the events that took place here as a ‘genocide’, attracts the atten-
tion of the visitors.21 Of 20 persons indicted for the Srebrenica event, final judge-
ment has been issued against 15 accused to date. These do not include the case
of the former Serbian president Slobodan Miloševic, which was terminated fol-
lowing his death, or ongoing cases such as the trials against Radovan Karadzic
and Ratko Mladic. The genocide verdict has given Srebrenica a special status that
resonates with and reinforces the cosmopolitan meta-narrative of Never again.

stimulating public debate and awareness to prevent re-occurrence

by emphasising victimhood
Apart from attempting to preserve the memory of genocide and define it as ‘the
site of memory’, the purpose of the memorial is also to prevent similar atroci-
ties from happening again and reinforce the moral imperative of Never again.
Thus, the Memorial Centre aims to develop educational and research dimen-
sions. A good example for this is the Summer Research University Srebrenica-
Potocari, initiated in 2010, which included about 15 participants the first year. This
annual three-week program is aimed at postgraduates and researchers involved
in Genocide Studies.
The Srebrenica-Potocari Memorial Centre is also central to the three-day
commemorative ‘peace march’, an annual event since 2005 that begins on the
morning of 8 July in a field near the village of Nezuk. The participants then
retrace the 110-kilometre trek made by the column of 15,000 Bosniak men and
boys, starting from the point of survival for those who broke free into the territory
controlled by the Bosnian army; then, step by step and hour by hour, they make
their way through the hills, valleys, woods and villages where the column was
ambushed and cut off and where some 6,000 men and boys (of the more than
8,000 victims in total) perished en route to safety. It is a march to commemorate
their suffering and their courage that ends at the Srebrenica-Potocari Memorial
Centre. Some survivors of the original trek, Bosniaks of all generations, men and
women, boys and girls, joined ranks as did international tourists from across the
globe. Much of the commemorative activities around the Srebrenica genocide
involve movement into and across space, pilgrimages of remembrance to places
weighted by the spectre of past violence.
Today, it still remains ‘a highly contested site that plays a central role in the
ongoing struggles around victim hegemony in the region at large’.22 Nettlefield
and Wagner note that wartime strategies that resulted in war crimes ‘evolved
into a post-war strategy to expunge their experiences of recent history through

21 Prosecutor v Radislav Krstić (International Criminal Tribunal for the Former Yugoslavia, Records
of Proceedings, Case No IT-98-33, 1998–2004) <www.icty.org/case/krstic/4>.
22 Johanna Mannergren Selimovic, ‘Frictional Commemoration: Local Agency and Cosmopolitan
Politics at Memorial Sites in Bosnia-Herzegovina and Rwanda’ in Annika Björkdahl et al (eds),
Peacebuilding and Friction: Global and Local Encounters in Post-Conflict Societies (Routledge,
2016).
 MeMorIals and transItIonal justICe 279

denial, distortion, and revision of facts’.23 This affects not only Srebrenica survi-
vors but everyone in Bosnia, especially in the Republika Srpska (RS), but also in
neighbouring Serbia, where, as in RS, the genocide is still often denied.
The narratives presented in the memorial cannot and do not seek to incor-
porate the Serbs and are clearly targeted at Bosniak or international visitors.
This is understandable as the people killed on the Potocari site were all Bosniaks
(with the exception of very few Croats). The exclusion of the Bosnian Serb narra-
tives of the war is why many local Serbs do not visit the memorial and it is also
why the Bosnian Serbs recently have established a small memorial room of their
own in Srebrenica to commemorate those Bosnian Serbs that were killed in the
nearby villages during the war.
Preserving the memory of the fall of the safe area of Srebrenica and the
genocide in its aftermath is not reduced to the marking of 11 July or confined
to Potocari. However, to identify one particular place as a site of memory raises
some critical questions concerning what is remembered and what is forgotten.
If some places are remembered and present in the spatial narrative of the past,
there are other places that continue to be silenced, absent and forgotten. Other
mass killings of Bosniaks and Croats – such as the one in Brcko, for example,
where an estimated number of victims in Camp Luka reached 3,000; in the Omar-
ska, Keraterm and Manjaca concentration camps near Prijedor; and the killings
of Serbs in small villages such as Bratunac and Celebici – have been covered
by international and national media (daily press, national news), but they do not
draw as much attention as Srebrenica commemorations.
One of the motivations behind the memorial was the necessity of finding out
and offering the exact sequence of events, their time and spatial frame, prov-
ing culpabilities, punishing those responsible and keeping alive memories of the
crime. In this regard, the memorial fully satisfies its primary function: fighting
against oblivion.

Case study B: Memorial to the Homosexuals Persecuted

under the National Socialist Regime
The Memorial to the Homosexuals Persecuted under the National Socialist Regime
was designed by Michael Elmgreen and Ingar Dragset and inaugurated in Berlin
on 27 May 2008. It was built following a decision of the German parliament in
1999 that a memorial for Holocaust victims should be established and that all
other victims of National Socialism shall be commemorated as well. In 2003, the
parliament sealed the construction of the memorial and determined its location
in the Tiergarten, right in the administrative and commercial centre of the city,
where it is easily accessible to tourists.
(continued)

23 Lara Nettlefield and Sarah Wagner, Srebrenica in the Aftermath of Genocide (Cambridge Univer-
sity Press, 2014).
280 BUCKLEY-ZISTEL AND BJÖRKDAHL

(continued)

Figure 12.2 Memorial to the Homosexuals Persecuted under the national socialist
regime.
Source: Photographed by susanne Buckley-Zistel.

Prosecution of homosexuality began with the National Socialism takeover

in 1933, when it was branded as aberrant, and all clubs, associations and pub-
lishing houses were closed down.24 In 1935, this obtained its legal basis in the
amendment of §175 of the German Criminal Code, which condemned same-sex
relations amongst men, leading to criminal prosecution of homosexuals. Accord-
ing to the plaque at the memorial site, approximately 50,000 men were sentenced
and 5,000 to 15,000 were deported to concentration camps, where they had to
wear a pink triangle (‘Rosa Winkel’ in German) to mark their ‘offence’ and by
implication their socially unacceptable sexual orientation, leading to their stig-
matisation amongst other inmates.
Prior to the establishment of the Memorial to the Homosexuals in Berlin
there were a number of smaller initiatives, since the 1960s or 1970s increasingly

24 Angelika von Wahl, ‘How Sexuality Changes Agency: Gay Men, Jews, and Transitional Justice’ in
Susanne Buckley-Zistel and Ruth Stanley (eds), Gender in Transitional Justice (Palgrave Macmil-
lan, 2012) 204.
 MeMorIals and transItIonal justICe 281

with reference to the Rosa Winkel.25 After the German Federal President Richard
von Weizäcker publicly acknowledged in Parliament that homosexuals had been
victims of Nazi persecution in 1985, memorial sites in the former concentra-
tion camps Dachau and Sachsenhausen, as well as a full advent exhibition at
Sachsenhausen in 2000, followed.26 Since the memorial in Berlin was inaugu-
rated 83 years after the beginning of National Socialism, there are hardly any
detainees or concentration camp survivors left to use it as a site for personal
grievance or reflection. Due to the temporal distance, moreover, the campaigns
for its establishment were not driven by survivors themselves, as is often the
case with memorials, but by members of the contemporary gay community and
by associations of homosexuals who were concerned about discrimination in
both the past and in the present.

aesthetic language
The memorial consists of a single, tall concrete stela (block) with a small square
window through which the visitor can watch a film depicting the kiss of a same-
sex couple. Initially, it was a 90-second film loop of two men kissing. This was
replaced intermittently by a film of other same-sex couples – both male and
female – kissing interchangeably. The concealed screening of the same-sex kiss-
ing scenes render them visible and invisible at the same time; they are hidden
from view by being inside the stela, but they are nonetheless there.27 This oscilla-
tion between presence and absence continues today, as one of the artists states:
‘Today we accept homosexuals, but we don’t want to see them’.28 The memorial
thus draws past injustices into the present and serves as a symbol against cur-
rent and future stigmatisation of homosexuals. The plaque next to the memo-
rial offers a historical account of the persecution of homosexuals under National
Socialism, in German and in English, and declares that it serves as a ‘lasting
symbol against exclusion, intolerance and animosity towards gays and lesbians’.
Through using a stela, the aesthetic language of the memorial connects to
Eisenman’s Memorial to the Murdered Jews of Europe comprising 2,711 stelae,
which is located on the other side of the street, and establishes a bond between
various victim groups of National Socialism and averting discussions about com-
petitive victimhood.29 According to one of the artists, ‘It was the same suffering,
(continued)

25 Thomas O Haakenson, ‘(In)Visible Trauma: Michael Elmgreen and Ingar Dragset’s Memorial to
the Homosexuals Persecuted under the National Socialist Regime’ in Bill Niven and Chloe Paver
(eds), Memorialization in Germany Since 1945 (Palgrave Macmillan, 2010).
26 Erik N Jensen, ‘The Pink Triangle and Political Consciousness: Gays, Lesbians, and the Memory
of Nazi Persecution’ (2011) 11(1) Journal of the History of Sexuality 319, 336.
27 Haakenson, n 25, 152.
28 Author’s translation. Cited in Benjamin Drechsel and Fabian Pingel, ‘Bilderstreit in der Endloss-
chleife’ (2010) 3 Politische Ikonographie 1, 7.
29 Apart from that, the German homosexual community has avoided comparing its experience to
the Jewish Holocaust instead rather aligning itself with communists and socialists. Jensen, n 26,
342.
282 BUCKLEY-ZISTEL AND BJÖRKDAHL

(continued)
the same history, but at the same time there were many differences’.30 The
repeated use of the stelae also draws attention to the obliteration of the plight of
homosexuals in the decades following National Socialism – compared to other
victim groups who were able to stand up for their rights – as well as to the igno-
rance of discrimination against them at present.

re-establishing dignity, encouraging public debates

Re-establishing the dignity of victims was the key impetus behind the Memo-
rial to the Homosexuals Persecuted under the National Socialist Regime. This
was important regarding the period of National Socialism but also because
persecution did not end with the demise of National Socialism in 1945. In
West Germany, §175 was applied until 1969. It was not lifted until 1994, and
it took until 2002 to legally rehabilitate men who had been sentenced on its
basis. Keeping the law after the end of National Socialism was unusual, as
the Allies did not otherwise allow the retaining of laws which had increased in
severity under the Nazis.31 Some homosexuals even had to continue serving
their sentence set under the regime. Moreover, between 1950 and 1969, over
100,000 legal investigations were opened and 59,316 men were sentenced for
being homosexual.32
As a consequence, in the first decades after National Socialism there was
a culture of silence around the persecution and prosecution of homosexuals.
The continuing criminalisation and stigmatisation kept victims from coming
forward to tell their stories or even to demand reparations. While Jews, Sinti
and Roma were labelled victims of the Nuremberg Laws and were eligible for
compensation – and other victims of fascism had access to some form of mon-
etary and social rehabilitation – homosexuals, ‘asocials’, criminals, victims of
euthanasia and forced sterilisation, and displaced persons had no right to claim
reparations.33 To finally gain some public recognition through the memorial was
thus a major achievement. In this sense, the memorial serves as a belated sign
of resistance in a former culture of impunity.
A further achievement of the memorial is to encourage public debates about
past injustices. Against the backdrop of silence in the years following National
Socialism, it helps to draw their plight into the public realm. The main contention
about the memorial was and is not about its existence per se, but about who it is
for. In its initial conception, the memorial was for gay men only, since they were
singled out by §175, and there is very little record and evidence of lesbians being
targeted during National Socialism and the ensuing decades. From a feminist
perspective it was argued that women, too, were affected by the Nazi regime even

30 ‘Remembering Different Histories: Monument to Homosexual Holocaust Victims Opens in

Berlin’, Spiegel (online), 27 May 2008 <www.spiegel.de/international/germany/remembering-
different-histories-monument-to-homosexual-holocaust-victims-opens-in-berlin-a-555665.html>.
31 von Wahl, n 24, 205.
32 Ibid.
33 Ibid.
 MeMorIals and transItIonal justICe 283

though they were less frequently sentenced and arrested, and that women (as
well as men) continue to suffer from homophobia today, again linking past and
present.34 The conceptual opening up of the memorial to both sexes led to heated
debates about historical accuracy on the one hand and the perpetual exclusion
and invisibility of (homosexual) women in society on the other.

12.4 Conclusion
This chapter elaborates on how memorialisation, memorials and transitional jus-
tice are closely related. Often serving as a reminder of a tragic past, memorials
are established in post-conflict societies as an attempt to prevent the recurrence of
such tragedies. In this context, memorials are often regarded as having a positive
impact on transitional justice processes. Yet, transitional justice in transitional
societies is always a political process, and we have to maintain a critical stance
towards the political implications of commemorating a past.
We should be aware that only certain memories, testimonies and events
become part of the official narrative of the past and are thus to be commemorated,
while others that challenge this narrative are to be forgotten. Memorials in such
settings tend to provide the victors or power holders with a mechanism of imag-
ining a new nation through the narratives of the past that they disseminate. The
memories reflected in and reproduced by such memorials are deeply contested,
severely politicised and highly divisive, and as memorials are open to an infinite
number of interpretations, they can readily slide into contested and contradictory
narratives about history, specific events, victimhood and victory.35 This in turn
may be counterproductive to reconciliation and conflict transformation.
The creation of any memorial actively or potentially excludes those who do
not subscribe to it, or who are embraced within the meanings attached to that
memorial. Thus, the memoryscape of transitional societies often also includes
counter-memorials as discussed above. In parallel to official memorialisation and
memorials, groups and individuals who feel excluded, silenced or forgotten initi-
ate non-official, alternative, grassroots ways of representing the past. Counter-
memorials that do not represent the ‘right memory’ can become a collective social

34 Christiane Wilke, ‘Remembering Complexity? Memorials for Nazi Victims in Berlin’ (2013) 7(1)
International Journal of Transitional Justice 136.
35 Nicholas Saunder, ‘Matter and Memory in the Landscapes of Conflict: The Western Front 1914–
1999’ in Barbara Bender and Margot Winer (eds), Contested Landscapes: Movement, Exile and
Place (Berg, 2001).
284 BUCKLEY-ZISTEL AND BJÖRKDAHL

symbol with the ability to encapsulate and perpetuate certain identities, and claims
may be established that resist a uniform and exclusive memorialisation process.
Counter-memorials are important as they reveal the danger of uniform or
hegemonic interpretations of the past and encourage multiple understandings
of the past. Furthermore, by communicating narratives of the past to the public,
memorials also introduce a new type of agent to the field of transitional justice
in addition to victims and perpetrators: the visitor. In doing so, they displace the
dichotomy of victims and perpetrator, by not belonging to either group. More
research focusing on counter-memorials that represent resistance to official com-
memorations, and research on the bystander and the external gaze of the tourist, is
needed. One example is Berlin’s Jewish Museum, designed by Daniel Libeskind.
The architect designed a building with six voids to remind everybody who enters
that no matter what they see of Jewish history (as exhibited in this museum), it
is going to be disrupted, interrupted by the memory of the Holocaust. Another
famous example is Maya Lin’s Vietnam Veterans Memorial, in Washington, D.C.,
which is a place where Vietnam veterans come to remember their fallen com-
rades, and where Americans can begin to remember how they received the vet-
erans when they came back from Vietnam. The memorial reflects America’s loss
and its divided society and its ambivalence.36
Commemorative landscapes, particularly those which evoke the memory of
war, are clearly gendered, as they produce and reproduce the experiences and
narratives of men, and often silence women’s interpretations of the war. Feminist
scholars have raised the question: what role do commemorations and memorials
play in dispelling or affirming the gender order in post-conflict contexts?37 In
transitional societies and in war-torn societies, male war heroes or war veterans
are frequently commemorated, but the varied experiences of women often remain
excluded or silenced in the construction of the meta-narratives of the past that is
represented in the memorials. Thus there is an urgent need to discuss the gendered
nuances of commemorations in transitional societies through a critical examina-
tion of commemorative material culture such as monuments and memorials.

36 Yad Vashem Shoah Resource Center, Holocaust Monuments and Counter-Monuments (24 May
1998) International School for Holocaust Studies <www.yadvashem.org/odot_pdf/Microsoft%20
Word%20-%203659.pdf>.
37 Hamzah Muzaini and Brenda SA Yeoh, ‘War Landscapes as “Battlefields” of Collective Memo-
ries: Reading the Reflections at Bukit Chandu, Singapore’ (2005) 12 Cultural Geographies 1288;
Sara McDowell, ‘Commemorating Dead “Men”: Gendering the Past and Present in Post-Conflict
Northern Ireland’ (2008) 15(4) Gender, Place & Culture 335–354; Janice Jones Monk, ‘Gender in
the Landscape: Expressions of Power and Meaning’ in Kay Anderson and Fay Gale (eds), Invent-
ing Places: Studies in Cultural Geography (Longham, 1992).
 MeMorIals and transItIonal justICe 285

Post-memory is another critical, yet under-explored aspect of the connection

between memorialisation, memory and transitional justice. For Marianna Hirsch,
the term ‘describes the relationship that the “generation after” bears to the per-
sonal, collective, and cultural trauma of those who came before – to experiences
they “remember” only by means of the stories, images, and behaviors among
which they grew up’.38 By handing down through the generations a version of
events that reproduces identity and anchors memory in the site of the most intense
experiences, memorials are key to transferring memory across generations and
to intergenerational commemoration and remembering. Memorials such as the
one in Srebrenica-Potočari risk fetishising the place, as its name will forever be
associated with genocide, and obscure a wider social memory capable of accom-
modating different recollections and interpretations.39
Clearly, memorials derive their importance from the ideas and values that are
projected through them.40 These ideas and values are not fixed in time and can be
dissonant, and they can reject official historical narratives to present an alterna-
tive reading of place and memory. Due to their construction and representation of
a particular past, they acquire certain functions, as discussed in this chapter, and
thus lend themselves to affecting societies in transition as central to the idea of
transitional justice, yet with both negative and positive repercussions.

12.5 summary
Memorials present an attempt to fixate and store memories. They are symbolic
reparations and serve to remember past events or persons that should not be
forgotten in the present, such as victims of war, of repressive dictatorships,
of terrorist attacks, and of apartheid as well as genocide. The chapter demon-
strates that memorials link the past, the present and the future. There has been a
shift in commemorations from war heroes to victims, parallel to a shift in focus
of transitional justice from perpetrators to victims. The chapter distinguishes
between three forms of memorials: authentic sites, at the place where atrocities
were committed, such as the Srebrenica-Potočari Memorial Centre; constructed
sites, often more abstract, such as the Memorial to the Homosexuals Persecuted
under the National Socialist Regime; and commemorations, such as the peace
march to Srebrenica-Potočari. Memorials can fulfil different functions: they can
restore the dignity of victims, stimulate public debates about past injustices,

38 Marianna Hirsch, ‘The Generation of Postmemory’ (2008) 29 (1) Poetics Today 103.
39 Brian Graham and Peter Howard, ‘Introduction: Heritage and Identity’ in Brian Graham and Peter
Howard (eds), The Research Companion to Heritage and Identity (Ashgate, 2008).
40 Ibid.
286 BUCKLEY-ZISTEL AND BJÖRKDAHL

serve as a sign of resistance in a culture of impunity, break silences about past

injustices, contribute to conflict transformation and aid the nation-building pro-
cess by helping to construct shared collective identities as well as provide a
space for private reflection and mourning. We can also see that memorials are
often contested in transitional societies as they represent a particular historical
narrative of the past.

12.6 discussion and tutorial questions

1) What forms do memorials take around the world, and what role does the form
of a violent conflict – dictatorship, ethno-political war, genocide, and so on –
play in shaping the impact of memorials?
2) How do memorials reflect the object of commemoration such as victims or
war heroes?
3) What is the role of memorialisation in dealing with the past?
4) What is the relationship between memorials and other transitional justice
tools? And how can memorials advance the goals of other transitional justice
initiatives?

suggested reading
Bell, Duncan (ed), Memory, Trauma and World Politics: Reflections on the Relationship
Between Past and Present (Palgrave, 2006).
Buckley-Zistel, Susanne and Stefanie Schäfer (eds), Memorials in Times of Transi-
tion (Intersentia, 2014).
Center for Non-Violent Action: War of Memories: Places of Suffering and Remem-
brance of War in Bosnia-Herzegovina (CNA, 2016).
Nettlefield, Lara and Sarah Wagner, Srebrenica in the Aftermath of Genocide (Cam-
bridge University Press, 2014).
Young, James, The Texture of Memory: Holocaust Memorials and Meaning (Yale Uni-
versity Press, 1993).

other resources
Digital Monument to the Jewish Community in the Netherlands (2001) Jewish Histori-
cal Museum <www.joodsmonument.nl/?lang=en>.
Human Rights & Democracy for Iran, Omid: A Memorial in the Defense of Human
Rights in Iran (2016) Abdorrahman Boroumand Foundation <www.iranrights.
org/memorial>.
International Coalition of Sites of Conscience <www.sitesofconscience.org/en/
home/>.
 MeMorIals and transItIonal justICe 287

Korean War Veterans Digital Memorial (2015) Korean War Legacy Foundation <www.
kwvdm.org/>.
Lives of the First World War (12 May 2014) Imperial War Museum <https://livesoft-
hefirstworldwar.org/>.
Srebrenica – A Cry From the Grave (Directed by Leslie Woodhead, Antelope Produc-
tions, 2000) <www.youtube.com/watch?v=Fliw801iX84>.

Bibliography
articles/books/reports
Ashplant, Timothy G, Graham Dawson, and Michael Roper (eds), Commemorating
War: The Politics of Memory (Transaction Publishers, 2004).
Barsalou, Judy M, ‘Reflecting the Fractured Past: Memorialisation, Transitional
Justice and the Role of the Outsiders’ in Susanne Buckley-Zistel and Stefanie
Schäfer (eds), Memorials in Time of Transition (Intersentia, 2014).
Bonacker, Thorsten, Anika Oettler, and Christoph Safferling, ‘Valorising Victims’
Ambivalences in Contemporary Trends in Transitional Justice’ in Thorsten
Bonacker and Christoph Safferling (eds), Victims of International Crimes: An
Interdisciplinary Discourse (Springer, 2013).
Braun, Christian, ‘The Srebrenica-Potocari Memorial: Promoting (In)Justice?’ in
Susanne Buckley-Zistel and Stefanie Schäfer (eds), Memorials in Time of Tran-
sition (Intersentia, 2014).
Brett, Sebastian, Louis Bickford, Liz Ševcenko, and Marcela Rios, Memorialization
and Democracy: State Policy and Civic Action (International Center for Transi-
tional Justice, 2007).
Buckley-Zistel, Susanne and Stefanie Schäfer, ‘Memorials in Time of Transition’
in Susanne Buckley-Zistel and Stefanie Schäfer (eds), Memorials in Time of
Transition (Intersentia, 2014).
Drechsel, Benjamin and Fabian Pingel, ‘Bilderstreit in der Endlosschleife’ (2010)
3 Politische Ikonographie <http://edoc.hu-berlin.de/kunsttexte/2010-3/drech-
sel-benjamin-2/PDF/drechsel.pdf>.
Graham, Brian and Peter Howard, ‘Introduction: Heritage and Identity’ in Brian
Graham and Peter Howard (eds), The Research Companion to Heritage and
Identity (Ashgate, 2008).
Haakenson, Thomas O, ‘(In)Visible Trauma: Michael Elmgreen and Ingar Drag-
set’s Memorial to the Homosexuals Persecuted under the National Socialist
Regime’ in Bill Niven and Chloe Paver (eds), Memorialization in Germany Since
1945 (Palgrave Macmillan, 2010).
Hamber, Brandon, Liz Ševcenko, and Ereshnee Naidu, ‘Utopian Dreams or Practi-
cal Possibilities? The Challenges of Evaluating the Impact of Memorializa-
tion in Societies in Transition’ (2010) 4(3) International Journal of Transitional
Justice 397.
Hirsch, Marianna, ‘The Generation of Postmemory’ (2008) 29(1) Poetics today 103.
288 BUCKLEY-ZISTEL AND BJÖRKDAHL

Jensen, Erik N, ‘The Pink Triangle and Political Consciousness: Gays, Lesbians,
and the Memory of Nazi Persecution’ (2011) 11(1) Journal of the History of Sex-
uality 319.
Levy, Daniel, ‘Changing Temporalities and the Internalization of Memory of Cul-
ture’ in Yifat Gutman, Adam D Brown, and Amy Sodaro (eds), Memory and the
Future: Transnational Politics, Ethics and Society (Palgrave Macmillan, 2010).
Mannergren Selimovic, Johanna, ‘Frictional Commemoration: Local Agency and
Cosmopolitan Politics at Memorial Sites in Bosnia-Herzegovina and Rwanda’
in Annika Björkdahl, Kristine Höglund, Gearoid Millar, Jair van der Lijn, and
Willemijn Verkoren (eds), Peacebuilding and Friction: Global and Local Encoun-
ters in Post-Conflict Societies (Routledge, 2016).
McDowell, Sara, ‘Commemorating Dead “Men”: Gendering the Past and Present in
Post-Conflict Northern Ireland’ (2008) 15(4) Gender, Place & Culture 335–354.
Muzaini, Hamzah and Brenda SA Yeoh, ‘War Landscapes as “Battlefields” of Col-
lective Memories: Reading the Reflections at Bukit Chandu, Singapore’ (2005)
12 Cultural Geographies 1288.
Naidu, Ereshnee, ‘Memorialisation in Postconflict Societies in Africa: Potentials
and Challenges’ in Susanne Buckley-Zistel and Stefanie Schäfer (eds), Memo-
rials in Time of Transition (Intersentia, 2014).
Nettlefield, Lara and Sarah Wagner, Srebrenica in the Aftermath of Genocide (Cam-
bridge University Press, 2014).
Saunder, Nicholas, ‘Matter and Memory in the Landscapes of Conflict: The West-
ern Front 1914–1999’ in Barbara Bender and Margot Winer (eds), Contested
Landscapes: Movement, Exile and Place (Berg, 2001).
Simic, Olivera, ‘Remembering, Visiting and Placing the Dead: Law, Authority and
Genocide in Srebrenica’ (2009) 13 Law Text Culture 273.
Viebach, Julia, ‘Alétheia and the Making of the World: Inner and Outer Dimensions
of Memorials in Rwanda’ in Susanne Buckley-Zistel and Stefanie Schäfer
(eds), Memorials in Time of Transition (Intersentia, 2014).
Von Wahl, Angelika, ‘How Sexuality Changes Agency: Gay Men, Jews, and Tran-
sitional Justice’ in Susanne Buckley-Zistel and Ruth Stanley (eds), Gender in
Transitional Justice (Palgrave Macmillan, 2012).
Wilke, Christiane, ‘Remembering Complexity? Memorials for Nazi Victims in Ber-
lin’ (2013) 7(1) International Journal of Transitional Justice 136.
Winter, Jay, ‘Notes on the Memory Boom: War, Remembrance and the Uses of the
Past’ in Duncan Bell (ed), Memory, Trauma and World Politics: Reflections on the
Relationship Between Past and Present (Palgrave Macmillan, 2006).
Winter, Jay, Sites of Memory, Sites of Mourning: The Great War in European Cultural
History (Cambridge University Press, 1995).

other
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims
of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, GA Res 60/147, UN GA, 60th sess, 64th plen
 MeMorIals and transItIonal justICe 289

mtg, Agenda Item 71(a), UN Doc A/Res/60/147 (adopted and proclaimed 16

December 2005) <www.unhcr.org/refworld/docid/4721cb942.html>.
Prosecutor v Radislav Krstić (International Criminal Tribunal for the Former Yugo-
slavia, Records of Proceedings, Case No IT-98-33, 1998–2004) <www.icty.org/
case/krstic/4>.
‘Remembering Different Histories: Monument to Homosexual Holocaust Victims
Opens in Berlin’ Spiegel (online), 27 May 2008 <www.spiegel.de/international/
germany/remembering-different-histories-monument-to-homosexual-
holocaust-victims-opens-in-berlin-a-555665.html>.
Yad Vashem Shoah Resource Center, Holocaust Monuments and Counter-Monuments
(24 May 1998) International School for Holocaust Studies <www.yadvashem.
org/odot_pdf/Microsoft%20Word%20-%203659.pdf>.
Chapter 13

Measuring the success (or failure)

of transitional justice

Andrew G Reiter

13.1 Introduction
As the previous chapters have demonstrated, transitional justice mechanisms are
complex, time-consuming, and often expensive. The UN spent nearly US$2 bil-
lion on the International Criminal Tribunal for the former Yugoslavia (ICTY),
which lasted from 1993 to 2017.1 Reparations programs can be costly for societ-
ies emerging from war and needing to rebuild. Likewise, vetting programs often
remove skilled officials from government at the very crucial moment when the
best and brightest are needed to help the country move forward. Moreover, many
transitional justice processes are extremely controversial, leading to intense pub-
lic debates, protests, and even violence. In 1998, military officers assassinated
a commissioner of Guatemala’s Truth Commission just two days after its final
report was released.2 Argentina experienced a series of military revolts following
high-profile trials in the aftermath of its transition to democracy in 1983.3 It comes
as no surprise then that policymakers want to know that transitional justice actu-
ally works and is thus worth the costs; and many policymakers, non-governmental
organisations (NGOs), and academics have attempted to evaluate the relative suc-
cess of transitional justice mechanisms.
This chapter proceeds by first outlining three distinct levels of analysis at
which transitional justice can be evaluated: the micro, or individual level; the

1 Robert M Hayden, From Yugoslavia to the Western Balkans: Studies of a European Disunion,
1991–2011 (Brill, 2013) 278.
2 Raúl Molina Mejía, ‘The Struggle against Impunity in Guatemala’ (1999) 26(4) Social Justice 55,
64.
3 Leigh A Payne, Uncivil Movements: The Armed Right Wing and Democracy in Latin America
(Johns Hopkins University Press, 2000) 51–100.
292 Andrew G reIter

meso, or institutional level; and the macro, or national level. It then surveys
attempts to measure the success of transitional justice on all three levels of
analysis. It pays particular attention to the methods used, the overall conclusions
drawn from existing studies, and the limitations of research in this area of tran-
sitional justice. Finally, the chapter concludes with a reflection on what it means
for transitional justice policies to be successful, and whether we can or should
evaluate these initiatives in the same ways in which we evaluate other political
and social policies.

13.2 How do we know if transitional

justice works?
Measuring the success of transitional justice can occur at roughly three distinct
levels of analysis, each with its own strengths and weaknesses. First and fore-
most, researchers focus on the micro or individual level and study how people
experience and perceive transitional justice efforts. A high-profile trial may be
lauded, but will have little impact if victims do not feel justice was served. Rep-
arations programs may look good from the outside, but are the lives of indi-
vidual victims being improved? We can also study whether individual victims
and perpetrators feel healed or atoned after participating in various transitional
justice mechanisms, and how societal attitudes change over time. In examining
the individual level, researchers conduct interviews, focus groups, and surveys
of victims, perpetrators, and members of society as a whole in places where tran-
sitional justice was pursued to gauge their perceptions of events and to under-
stand their individual experiences. Survey work is also important for assessing
levels of reconciliation, ideally being used to track societal attitudes over time
and across groups within society.
Second, there is an acknowledgement that transitional justice mechanisms
vary significantly in quality. A trial that ends in a verdict metes out more justice
than legal proceedings that fail to finish. Some reparations programs provide more
aid to victims than do others. Some truth commissions are cursory reviews of
past events, while others are thorough and highly participatory investigations. In
examining the success of transitional justice at this meso or institutional level,
researchers strive to collect detailed information on the many specific judicial
proceedings, laws, programs, and institutions related to transitional justice. They
often compile this information in qualitative datasets that are publicly available,
or publish qualitative narratives in the form of books, articles, or reports. The goal
at this level is to assess whether or not transitional justice mechanisms carried out
their work as intended and achieved their stated objectives.
Yet those engaged in transitional justice also want to know if these mecha-
nisms achieve larger, long-term societal goals such as peace and reconciliation.
 SuCCeSS (or fAIlure) of trAnSItIonAl juStICe 293

Indeed, policymakers often pursue these mechanisms precisely because of the

view that they are a necessary component of transitioning from war to peace and
from authoritarianism to democracy, and because of the promise that they will
aid divided societies in reconciling differences and learning to live side by side
without violence. At this macro or national level, we can examine, for example,
whether countries that pursued particular transitional justice mechanisms are
more peaceful or democratic than similar countries that did not. This can take the
form of qualitative case studies that comparatively trace the pathways of similar
countries, or quantitative analyses of larger datasets of countries that rely on sta-
tistical techniques to control for differences and similarities between cases and
isolate the effects of transitional justice.
Finally, some researchers – particularly international relations scholars – take
this macro level a bit further and attempt to examine the impact of transitional
justice at the global or international level. Countries do not pursue transitional jus-
tice mechanisms in isolation, but look to past experiences of other countries and
respond to pressures from powerful states, international organisations, and influ-
ential non-governmental organisations. Over time, we might see global norms
emerge, whereby certain approaches to past human rights violations become
expected and other approaches become scorned or even taboo. Here researchers
typically quantitatively examine global trends in the use of transitional justice
mechanisms over time, often coupled with case studies that demonstrate why
policymakers pursued particular mechanisms.
In all three levels of analysis, one important question confronts research-
ers: how long do we have to wait? A key trial verdict or the release of a truth
commission report can quickly change the narrative within a country and dis-
credit long-standing myths maintained by former perpetrators. The process of
participating in a truth commission or local justice process can be cathartic
for victims and perpetrators. The impact of transitional justice might then be
seen almost immediately. Yet democracies take time to consolidate, countries
need to be at peace for a sufficient time before we can say that they have
avoided renewed war, and reparations are intended to improve the lives of
victims over the long term. It may then take years or even decades to be able to
fully assess whether transitional justice has been successful in achieving these
lofty goals. Finally, for the emergence of international norms and for a goal
like reconciliation, it may take many generations to truly be able to determine
whether transitional justice has worked. The difficult state of race relations
in the United States, 150 years after the Civil War and the end of slavery, for
example, demonstrates that well-entrenched prejudices and structural inequali-
ties are extremely difficult to overcome. We should not then expect instant
improvements from societies emerging from repression and genocide in the
late twentieth and early twenty-first centuries.
294 Andrew G reIter

13.3 the micro or individual level:

recognition, reparation, and reconciliation
Transitional justice aims, first and foremost, to recognise past wrongs, repair dam-
ages, and bring about reconciliation to divided societies. Scholars and policymakers,
therefore, focus much of their research at the local community or individual level.
Do victims feel as though transitional justice efforts have effectively recognised
their experiences, have these initiatives improved their livelihoods, and have views
between perpetrator and victim communities changed as a result? Answering these
questions at the micro level typically requires methodologies that are in-depth and
intensive, including ethnographic research, focus groups, interviews, and surveys.
Truly understanding the needs and priorities of victims and how transitional
justice mechanisms resonate in societies requires researchers to immerse them-
selves within the populations. Ethnographers and forensic anthropologists observe
individuals and groups, conduct extensive on-the-ground interviews, and aim to
bring out a local perspective in their analysis. In a study of communities in the
highlands of Ayacucho, for example, Kimberly Theidon illustrates the roles that
public confessions and apologies, healing rituals, and storytelling have played in
helping those in Peru move forward after its long civil war.4
Conducting surveys is also a central focus of micro level research. Doing so
allows researchers to gain insight into the diverse experiences of those affected by
periods of human rights violations. Indeed, we may not know the extent of victim-
hood in a case or understand who exactly victims are until we conduct surveys.
Surveys can also reveal the needs of victims, and their preferences and priorities
for how transitional justice mechanisms should address them. Moreover, surveys
are vital in attempting to assess the impact of transitional justice on reconciliation,
enabling researchers to gauge societal attitudes and views on national and regional
identity. Successful survey research can shed light on many important questions,
including the degree of support for particular transitional justice mechanisms, the
effects of participating in a truth commission or standing as a witness at a trial,
and the rates of mental and physical health problems following conflict within the
population.5 The Reconciliation Barometer Project is a well-known example of an
effort to conduct a broad survey across time in a post-conflict society.6

4 Kimberly Theidon, Intimate Enemies: Violence and Reconciliation in Peru (University of Penn-
sylvania Press, 2012).
5 Roman David, ‘What We Know About Transitional Justice: Survey and Experimental Evidence’
(2017) 38(1) Advances in Political Psychology 151.
6 Kim Wale, Confronting Exclusion: Time for Radical Reconciliation, SA Reconciliation Barometer
Survey: 2013 Report (Institute for Justice and Reconciliation, 2013) <http://reconciliationbarometer.
org/wp-content/uploads/2013/12/IJR-Barometer-Report-2013-22Nov1635.pdf>.
 SuCCeSS (or fAIlure) of trAnSItIonAl juStICe 295

The overall result of micro level research can be to provide a clear pic-
ture of variations in how transitional justice mechanisms are perceived by and
impact individuals. It may be the case, for example, that a trial remains unknown
throughout most of the country, or that key segments of the population feel as
though a verdict was too lenient, leading us to question whether the trial should be
considered successful in achieving its primary goal of delivering justice. In Cam-
bodia, for example, the government established a hybrid tribunal with the United
Nations – the Extraordinary Chambers in the Courts of Cambodia – to bring to
trial former members of the genocidal Khmer Rouge regime that ruled from 1975
to 1979. Yet a population-based survey conducted in 2010 demonstrated that
many Cambodians were unaware of the trial, and that a strong majority (83 per
cent) felt that the government should be focusing on improving the everyday lives
of its citizens rather than delving into the past.7
Research can also help to determine how widespread knowledge of a truth
commission is, whether a final report has actually been accessed by victims and
members of the population at large, and what the overall perception is of the com-
mission’s work. If citizens view the commission as being biased, then its results
will have less impact no matter how robust its operations were. An evaluation of
Sierra Leone’s Truth and Reconciliation Commission, for example, found that its
restorative approach to justice clashed with local conceptualisations of justice,
leading to negative views of its work by many citizens in the country.8 We can
also assess whether victims and their families actually received the money and
benefits that were promised to them when reparations programs were established,
and whether or not they feel their lives were improved because of it. The repara-
tions program in Malawi, for example, has been lauded by politicians aiming to
show that they are addressing past human rights violations, but heavily criticised
by victims who complain of incomplete compensation, poor communication, and
favouritism.9 In some cases, reparations programs, no matter how generous, can
be perceived as ‘blood money’ and rejected by victims. The Mothers of the Plaza
de Mayo, in Argentina, for example, split into two organisations, in part over the
issue of reparations, when some members rejected government compensation for

7 Phuong Pham, Patrick Vinck, Mychelle Balthazard, and Sokhom Hean, After the First Trial: A
Population-Based Survey on Knowledge and Perceptions of Justice and the Extraordinary Cham-
bers in the Courts of Cambodia (Human Rights Center, University of California, Berkeley, 2011)
<www.law.berkeley.edu/files/HRC/Publications_After-the-First-Trial_06-2011.pdf>.
8 Gearoid Millar, ‘Local Evaluations of Justice through Truth Telling in Sierra Leone’ (2011) 12(4)
Human Rights Review 515.
9 Diana Cammack, ‘Reparations in Malawi’ in Pablo de Greiff (ed), The Handbook of Reparations
(Oxford University Press, 2006) 215.
296 Andrew G reIter

their missing children, ‘since to accept reparation is to acknowledge death’.10 Yet

in other cases, small sums or symbolic reparations bring with them a level of
recognition that dramatically changes how victims feel about government and
society – and only micro level research can uncover these differences.
Research at the micro level also aims to uncover local meanings of success
for transitional justice. A broad concept like ‘reconciliation’ can have different
meanings in different cultures, and scholars argue that we cannot measure the
effectiveness of transitional justice in bringing about reconciliation until we come
to terms with what it means to local people in the communities affected by vio-
lence. In examining the impact of the South African Truth and Reconciliation
Commission, for example, Antjie Krog has emphasised the importance of the
concept of ubuntu, or ‘interconnectedness-towards-wholeness’, in how victims
understand forgiveness and reconciliation.11 There is thus a view that we must
strive to understand and consider local and individual views of concepts such as
peace, reconciliation, apology, and reparations to be able to assess the effective-
ness of transitional justice mechanisms.
With all research at the micro level, timing is important. Some researchers
attempt to investigate the impact of transitional justice immediately, to minimise
the effect of other factors that can influence individual views. Yet others stress
the need for waiting and thus gaining a longer-term retrospective from individu-
als. Ideally, surveys and interviews are conducted repeatedly over time, allowing
researchers to track any important changes.
Overall, micro level research is an important component in assessing the suc-
cess of transitional justice. Only by tapping into community and individual views
and understandings of transitional justice mechanisms can we truly comprehend
their success. We may find that mechanisms that appear to be working well are
having little impact on the ground, or that they are affecting different communities
and individuals in divergent ways. Moreover, micro level research can cause us to
reassess how we should even approach the question of how to measure success.
Yet there are significant limitations to micro level research, beyond the
practical barriers of cost and time necessary to conduct studies at the individual
level. First, it can be difficult for researchers to figure out who to interview or
survey in the first place. Typically, there are not convenient lists of victims for
researchers to use, and researching particular groups can introduce bias – the
composition of one refugee camp, for example, could be drastically different

10 Brandon Hamber and Richard A Wilson, ‘Symbolic Closure through Memory, Reparation and
Revenge in Post-Conflict Societies’ (2002) 1(1) Journal of Human Rights 35, 45.
11 Antjie Krog, ‘“This Thing Called Reconciliation […]” Forgiveness as Part of an Interconnected-
ness-Towards-Wholeness’ (2008) 27(4) South African Journal of Philosophy 353, 353.
 SuCCeSS (or fAIlure) of trAnSItIonAl juStICe 297

than others, leading to skewed conclusions about victimhood in a country.

Researchers also need appropriate language skills and well-connected local
contacts, and may need to overcome hesitation on the part of communities to
open up about sensitive issues to outsiders. Second, this type of research relies
on self-reported data, and individuals can recall past events incorrectly, and
misunderstand crucial concepts or questions, especially given the difficulty of
translating particular concepts such as truth and justice across cultures. Lastly,
micro level research fails to address the larger institutional and national-level
goals of transitional justice mechanisms. National improvements in human
rights protections and democratic freedoms may not always be perceptible by
individuals. Or perhaps a vetting program is not well received or understood by
the local population, but is extremely effective at removing human rights abus-
ers from office. Micro level research can thus be complemented by research at
the meso and macro levels respectively.

13.4 the meso or institutional level: justice,

truth, and reform
Above the micro or individual level, researchers evaluate transitional justice at
the meso or institutional level by conducting institutional assessments of specific
mechanisms themselves. Here the task is to examine the creation and functioning
of transitional justice mechanisms such as courts, truth commissions, and repara-
tions programs. How effectively are they designed and how well do they carry out
their intended tasks?
States pursue many trials for former perpetrators, but a sizeable number
never reach a verdict. The trial of Slobodan Milošević at the ICTY, for example,
failed to issue a verdict prior to his death in 2006, and despite many days under
house arrest, Augusto Pinochet was never convicted of any crime in the UK or
Chile prior to this death in 2006. The success of a trial can, therefore, be partially
measured by whether the prosecution was completed, a verdict was rendered, and
a sentence was imposed. Others would go even further to define success as guilty
verdicts only and measure that success by the extent of the sentence, viewing
long prison sentences as a better outcome than ‘slaps on the wrist’ in the form of
fines or short jail time. Those investigating the success of transitional justice also
take breadth into consideration. A country that has witnessed hundreds of trials of
former members of its authoritarian regime, like Argentina or Greece, could be
considered more successful in pursuing justice than those who pursue only a few
token trials. In other words, how comprehensive were the trial proceedings and
how effective were they at meting out justice to perpetrators of human rights vio-
lations? There has been extensive work at this level into trials in Latin America,
with major NGOs and academic institutions tracking and analysing prosecutions
298 Andrew G reIter

in key cases, including Argentina, Chile, and Peru.12 The major international tri-
bunals have also received significant attention from researchers.
Likewise, governments often announce commissions to investigate past
human rights violations, but the success of many in doing so is unclear. At times,
these announcements are political posturing and the commissions that are cre-
ated never complete their work, by design or due to lack of funding and support.
Yet other commissions conclude their investigations and release public reports.
Researchers typically assess the success of truth commissions along two dimen-
sions: robustness and output. The robustness of a commission can be measured
by how well it was funded and staffed, and the breadth of its mandate. More
comprehensive commissions with greater resources and more investigatory pow-
ers are considered stronger or more successful. Regarding output, researchers ask
whether the commission produced a final report of its findings, whether that report
was made public, and whether that report named the names of individual per-
petrators. In addition, researchers examine the recommendations truth commis-
sions make in their final reports – such as reparations programs and institutional
reforms – and whether they are in turn implemented by the government. Overall,
more robust truth commissions can uncover a more detailed and respected truth
about past atrocities, and where the findings are public and recommendations are
implemented, truth commissions represent a greater deterrent and should be more
successful in preventing future crimes. Some researchers also contend that vic-
tim participation in the truth commission process is an important component for
measuring its success. The ability for victims to testify and tell their stories can
be cathartic and thus can make the commission more successful in bringing about
reconciliation to society. The foundational academic work in this area is Priscilla
Hayner’s book, which examines the similarities and differences and varying lev-
els of success of 40 truth commissions used around the world.13 More recent work
has examined the effectiveness of truth commissions across a much wider spec-
trum of outcomes, using dozens of measures to assess their impact and legacy.14
Like truth commissions, reparations programs vary considerably on how
robust they are and in their output.15 Those that cover a larger percentage of vic-
tims and provide more substantial awards are generally considered more success-
ful than minimal efforts to provide primarily symbolic funds to isolated victim

12 Cath Collins, Lorena Balardini, and Jo Marie Burt, ‘Mapping Perpetrator Prosecutions in Latin
America’ (2013) 7(1) International Journal of Transitional Justice 8.
13 Priscilla Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commis-
sions (Routledge, 2nd edn, 2011).
14 Jeremy Sarkin (ed), The Global Impact and Legacy of Truth Commissions (Intersentia, 2019).
15 de Greiff (ed), The Handbook of Reparations, n 9.
 SuCCeSS (or fAIlure) of trAnSItIonAl juStICe 299

groups. Moreover, some reparations programs function more effectively than

others. Scholars thus ask how well programs are publicised and what types of
outreach are undertaken, how easily victims can file claims, and how efficiently
and fairly decisions are made. Finally, timing is important when analysing this
mechanism as well. Victims should receive reparations in a timely manner so as
to allow them to improve their livelihoods. Programs that drag on for many years
without compensating victims are considered less successful. Similarly, vetting
programs that apply widely to the government and military may be viewed as
qualitatively better than the purging of a handful of high-ranking officials, though
researchers also attempt to account for the procedural fairness of the process in
evaluating this mechanism.16
With respect to amnesties, measures of success vary considerably and
research at this meso level has used several important criteria.17 Those that are
debated by legislative bodies or informed by public referenda are considered
more legitimate than other amnesties enacted unilaterally by executive decree,
particularly if they are done so by non-democratic governments. With amnesties,
breadth is generally treated in the opposite fashion from other mechanisms. Here
scholars typically view the most successful amnesties as those that are narrow –
complying with international law and requiring recipients to comply with certain
conditions (for example, participation in disarmament, demobilisation, and reinte-
gration programs) to obtain their benefits – though the most successful amnesties
typically cover both sides in a conflict – the government and rebel groups chal-
lenging it – rather than simply the state’s own forces.
Overall, research at the meso or institutional level is typically done through
qualitative case studies, often buttressed by on-site observation of mechanisms in
action, extensive archival research, and interviews with politicians and bureau-
crats associated with the creation and operation of the transitional justice efforts.
Research at this level is invaluable at providing a clear picture of how transi-
tional justice mechanisms are operating and determining how successful they are
at carrying out many of their tasks. Yet there are also major limitations. A focus
on institutional effectiveness can ignore variations in impact and perceptions at
the individual level. In other words, a mechanism may look great ‘on paper’ but
have had less than the expected impact on the ground. In addition, by focusing
on each mechanism, studies at this level can overlook how they fit into the tran-
sitional experience and comprehensive transitional justice efforts undertaking by

16 Alexander Mayer-Rieckh and Pablo de Greiff (eds), Justice as Prevention: Vetting Public Employ-
ees in Transitional Societies (Social Science Research Council, 2007).
17 Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Jus-
tice Divide (Hart Publishing, 2008).
300 Andrew G reIter

countries. It is difficult to assess a mechanism’s overall contribution to larger

goals like peace and democracy without understanding how it complements or
complicates other transitional justice initiatives. Research at the macro level can
aid in answering these larger questions.

13.5 the macro or national level: peace,

democracy, and human rights
While micro and meso level studies can reveal a great deal about how well partic-
ular transitional justice mechanisms work and touch people’s lives, they tell us lit-
tle about the overall value of transitional justice endeavours to countries emerging
from conflict or authoritarianism. Scholars and policymakers alike now champion
transitional justice as a necessary and vital undertaking for states to success-
fully overcome past legacies of violence.18 As transitional justice competes with
other important tasks for transitioning states, such as economic development, it is
important to know if transitional justice really does help to contribute to stronger
democracies, improved human rights records, and more peaceful societies.
Early approaches to studying these effects at the national level were com-
parative case studies. Researchers selected anywhere from several to a dozen or
more cases that shared similarities. Often the cases were from the same region
or experienced similar types of transitions during the same period. Yet the cases
differed in their use of transitional justice and in the state of their democracy
and human rights protections today. This allowed researchers to look for rela-
tionships between choices and these important outcomes. The methods used
here were largely qualitative, relying on process. Transitional justice events were
traced over time in each case, and the outcomes were usually subjective, based on
the researcher’s knowledge of the cases, though some studies used external mea-
sures from other sources. One important work, for example, examined 19 cases of
democratic transition in Europe, Latin America, and South Africa.19 Another com-
pared the effects of transitional justice in 32 post-conflict countries.20 Although
these were significant contributions that began to highlight national-level impact,
the studies were limited in their scope. Even the largest of those studies covered
only a small, unrepresentative sample of the overall number of countries that have

18 United Nations, ‘Guidance Note of the Secretary General: United Nations Approach to Transi-
tional Justice’ (10 March 2010).
19 Alexandra Barahona de Brito, Carmen González-Enríquez, and Paloma Aguilar (eds), The Politics
of Memory: Transitional Justice in Democratizing Societies (Oxford University Press, 2001).
20 Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of
International Justice’ (2003–2004) 28(3) International Security 5.
 SuCCeSS (or fAIlure) of trAnSItIonAl juStICe 301

used transitional justice, and were therefore unable to draw broad conclusions
about the effects of mechanisms.
More recently, there has been a proliferation of quantitative studies draw-
ing on cross-national databases of transitional justice mechanisms.21 Scholars first
collect information on what mechanisms countries around the world have used,
then use various statistical techniques to see if there are any correlations between
those choices and measures of peace, democracy, and human rights, controlling
for other factors that might explain those outcomes. The Transitional Justice Data-
base Project, Post-Conflict Justice Dataset, and Transitional Justice Research Col-
laborative are some of the most prominent examples of cross-national databases
on multiple transitional justice mechanisms.22 These studies are notable for their
scope. They can reveal the existence of global trends and patterns that other stud-
ies are unable to show, and are able to make more general statements about the
effectiveness of transitional justice that may be skewed by smaller studies of cases
that may, in reality, be outliers.
The findings of these works to date, however, have been mixed. Studies have
found conversely that trials and truth commissions are both positive for human
rights, that truth commissions have a negative effect on democracy and human
rights, that trials and amnesties when used in combination are the most beneficial,
and that transitional justice has little effect on levels of peace.23 These inconsis-
tencies are due in part to some significant limitations in this type of research.
To statistically test for the effectiveness of transitional justice, scholars typically
use very blunt measures of mechanisms – for example, whether a country used a
truth commission or not – ignoring significant variations in their type and quality.
Moreover, the outcomes of interest are drawn from other existing datasets, all of
which have their own inherent flaws. To measure a country’s level of democracy
in given year, for example, most scholars use the 20-point ‘Polity Score’ from the
Polity IV dataset maintained by the Center for Systemic Peace, which ranges from

21 Louise Mallinder and Catherine O’Rourke, ‘Databases of Transitional Justice Mechanisms and
Contexts: Comparing Research Purposes and Design’ (2016) 10(3) International Journal of Tran-
sitional Justice 492.
22 Tricia D Olsen, Leigh A Payne, and Andrew G Reiter, ‘Transitional Justice in the World, 1970–
2007: Insights from a New Dataset’ (2010) 47(6) Journal of Peace Research 803; Helga Malmin
Binningsbø et al, ‘Armed Conflict and Post-Conflict Justice, 1946–2006: A Dataset’ (2012) 49(5)
Journal of Peace Research 731; Geoff Dancy, Bridget E Marchesi, Tricia D Olsen, Leigh A Payne,
Andrew G Reiter, and Kathryn Sikkink, ‘Bars and Bargains: New Findings on Transitional Justice
in Emerging Democracies’ (2019) 63(1) International Studies Quarterly 99.
23 Oskar NT Thoms, James Ron, and Roland Paris, ‘State-Level Effects of Transitional Justice: What
Do We Know?’ (2010) 4(3) International Journal of Transitional Justice 329.
302 Andrew G reIter

˗10 (fully autocratic) to 10 (fully democratic).24 Yet many in the field have ques-
tioned whether the dataset accurately captures the aspects of a regime necessary
to assess its level of democracy.25 Scholars also disagree on how to define mecha-
nisms and how to select which cases to include (having different methodologies
to determine which countries experienced transitions to democracy, for example),
leading to very different datasets to examine the same questions. Recent work
has argued that existing studies fail to sufficiently account for differences in the
context of countries in which transitional justice is implanted, suggesting that
where countries start may have more of an impact on the success and failure of
transitional justice rather than the mechanisms themselves.26 Finally, the element
of time is contested here. Does it make sense to examine levels of democracy and
human rights records for countries five years after they transitioned to democ-
racy? Ten? Twenty? How long does a country have to avoid renewed civil war to
be able to say that it has become more peaceful?
While these limitations will never be completely overcome, quantitative
cross-national studies are becoming more reliable. New data collection efforts
are producing more nuanced measures of transitional justice mechanisms and sta-
tistical techniques are becoming far more sophisticated. Most importantly, even
where these types of studies are limited, they serve as valuable direction pointers
for researchers working at the micro and meso levels of analysis, identifying key
variables that should be studied further and highlighting case studies that would
be valuable to the field.
Some scholars have further broadened this national level approach to examine
global trends in transitional justice use and impact. In doing so, they ask two primary
questions. First, are there patterns or trends in state behaviour that suggest the pres-
ence of global transitional justice norms? Second, are those new norms successful in
creating a global deterrent that is improving human rights and preventing atrocity?
As discussed in Chapter 2 in this volume (Andrew G Reiter, ‘The devel-
opment of transitional justice’), several international relations scholars, most
prominently Kathryn Sikkink, have argued that a justice cascade now exists
in the world, whereby states are increasingly holding perpetrators of human

24 Monty Marshall and Keith Jaggers, Polity IV Project: Political Regime Characteristics and Tran-
sitions 1800–2013 (6 June 2014) Systemic Peace <www.systemicpeace.org/polityproject.htm>.
25 See, eg, Kristian S Gleditsch and Michael D Ward, ‘Double Take: A Reexamination of Democracy
and Autocracy in Modern Polities’ (1997) 41(3) Journal of Conflict Resolution 361.
26 Elin Skaar, Camila Gianella Malca, and Trine Eide, After Violence: Transitional Justice, Peace,
and Democracy (Routledge, 2015); Samar El-Masri, Tammy Lambert, and Joanna R Quinn (eds),
Transitional Justice in Comparative Perspective: Preconditions for Success (Routledge, 2020);
Roger Duthie and Paul Seils (eds), Justice Mosaics: How Context Shapes Transitional Justice in
Fractured Societies (International Center for Transitional Justice, 2017).
 SuCCeSS (or fAIlure) of trAnSItIonAl juStICe 303

rights violations accountable for their actions. Some of the evidence for this
centres on the advent of UN-led criminal tribunals following the end of the
Cold War, the creation of the International Criminal Court, and the prominence
of new doctrines, such as the Responsibility to Protect, in international politi-
cal and legal discourse. Yet much of the argument is buttressed by quantita-
tive analysis of global databases of transitional justice mechanisms. Using a
global database of judicial proceedings for individual criminal responsibility
for past human rights violations, Sikkink demonstrates a dramatic increase in
the pursuit of justice around the world beginning in the early 1990s.27 There is
debate, however, within the scholarly community on the extent of this trend.
There have been far more countries transitioning to democracy since the early
1990s, and so some of the global increase in the number of trials may simply
be due to there being more opportunities for trials – the rate by which tran-
sitioning countries pursue prosecutions may not have changed as much over
time as we assume. In addition, by counting all years in which prosecutions
are underway, the database perhaps exaggerates the rise of justice, and differ-
ent databases, focusing on verdicts only, find less of an increase.28 Moreover,
analysis of databases of amnesty laws also finds an upsurge in recent decades,
a trend that would seem to stand in opposition to the norms behind the justice
cascade.29 A new study finds that trials and amnesties both work, but improve
different types of human rights.30
Assessing the extent to which the rise of accountability has served as a
global deterrent is even more difficult. As discussed above, evidence about the
impact of transitional justice on peace, democracy, and human rights within indi-
vidual countries is mixed. Moreover, the extension of this to the global level is
part of a socialisation process that admittedly will require time, even a generation
or more, to take hold. Researchers are, however, beginning to examine recent
downward trends in war and improvements in human rights, and transitional
justice may be one component of a larger set of factors working together to make
the world less violent.31

27 Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World
Politics (Norton, 2011).
28 Tricia D Olsen, Leigh A Payne, and Andrew G Reiter, Transitional Justice in Balance: Comparing
Processes, Weighing Efficacy (United States Institute of Peace Press, 2010).
29 Mallinder, n 17.
30 Dancy et al, n 22.
31 Joshua S Goldstein, Winning the War on War: The Decline of Armed Conflict Worldwide (Dutton,
2011).
304 Andrew G reIter

Case study: the impact of transitional justice in Guatemala

In 1954, Guatemalan President Jacobo Árbenz was deposed in a US-sponsored
military coup. A series of conservative and anticommunist military governments
followed, leading to armed resistance from the left. By the mid-1960s a full-fledged
civil war had developed. In the early 1980s fighting intensified between a new mili-
tary regime, led by General Efraín Ríos Montt, and the now united Guatemalan
National Revolutionary Unity rebels, with the military engaging in a ‘scorched-
earth pacification campaign’ against the rural, predominantly Mayan, population.
Forced disappearances were widespread, and it is estimated that the conflict left
up to 200,000 people dead or missing. A slow transition to democracy began in
1986, and a peace agreement formally ended the conflict a decade later in 1996.
Following the end of the conflict and the transition to democracy, transitional
justice efforts were widespread. The peace accords included the Law on National
Reconciliation, which provided an amnesty for both sides of the conflict for all
crimes except genocide and other serious crimes against humanity under inter-
national law. The accords also created the Commission for Historical Clarification
to investigate crimes committed during the civil war. It began operation in 1997
and produced a final report in February 1999. Later, in 2004, a major reparations
program, the National Reparations Commission, was created, with the goal of
awarding nearly US$500 million in payments to victims. In addition, a DNA data-
bank has been established to help identify remains to return them to their fami-
lies. Trials were sporadic for the first decade following the end of the war, but have
picked up in recent years, including a high-profile conviction of Montt for geno-
cide in 2013, though the ruling was subsequently overturned by the Constitutional
Court (attempts to retry him were underway when he died in April 2018).32
There has been a corresponding amount of research into whether or not all
of these transitional justice initiatives have been successful. At the macro level,
research has generally highlighted Guatemala’s success. There have been no
authoritarian reversals, measures of democracy illustrate significant improve-
ment from the mid-1980s to present, human rights protections have improved
moderately, the peace agreement has remained intact, and there has been no
renewed warfare. Moreover, the truth commission was influential throughout
Latin America and Montt became the first former head of state to be convicted
of genocide in his own country, suggesting that Guatemala is adding its own
streams to the rising justice cascade.
At the meso and micro levels, however, the assessment of Guatemala’s
transitional justice has been more mixed. The truth commission was received
well by the human rights community in Guatemala, and its hard-hitting final
report revealed the true extent of the conflict that had been downplayed by the
government and stated clearly that genocide had been perpetrated.33 Yet Priscilla

32 Elizabeth Malkin, ‘Guatemalan Court Overturns Genocide Conviction of Ex-Dictator’, New

York Times (online), 20 May 2013 <www.nytimes.com/2013/05/21/world/americas/guatemalas-
highest-court-overturns-genocide-conviction-of-former-dictator.html?_r=0>.
33 Christian Tomuschat, ‘Clarification Commission in Guatemala’ (2001) 23(2) Human Rights Quar-
terly 233.
 SuCCeSS (or fAIlure) of trAnSItIonAl juStICe 305

Hayner notes that it led to few prosecutions, no subsequent vetting programs,

and despite the eventual disbanding of some security forces, most of its rec-
ommendations remain unimplemented.34 Likewise, the new Human Rights
Ombudsman’s office, created following the conflict, has been criticised for being
ineffective,35 and the difficulty in trying Montt demonstrates the lack of judicial
reform to date.
Moreover, scholars studying local initiatives for social reconstruction have
criticised these national transitional justice mechanisms, noting that it is ‘not
clear how much difference these efforts – while necessary – have made in peo-
ple’s daily experience’.36 They contend that national-level efforts have failed to
capture the meaning of the conflict for those affected by the violence, and argue
that national transitional justice programs need to more effectively complement
local efforts to heal the deeply divided society. The reparations program in par-
ticular has been criticised for not being sufficiently locally contextualised.37 The
outcomes used at the macro level miss the fact that Guatemala is now dominated
by criminal gangs and has one of the highest homicide rates in the world, and
that at the local level society remains deeply divided. Most researchers conclude
that transitional justice overall in Guatemala has had some success, but it can
achieve only so much in a country where economic and institutional reforms
remain unfulfilled and racism and discrimination against indigenous communi-
ties remains high.38

13.6 Is doing something better than doing

nothing?
As the discussion in this chapter makes clear, despite a variety of approaches
and methods, existing studies on the impact of transitional justice have been
mixed and unconvincing. More rigorous research and new methodological
approaches will certainly help, and mixed-method and multi-level research
will provide the fullest picture of transitional justice processes. In addition, the
passing of time will allow for follow-up interviews, longitudinal surveys, and

34 Hayner, n 13, 281.

35 Michael Dodson and Donald W Jackson, ‘Horizontal Accountability in Transitional Democracies:
The Human Rights Ombudsman in El Salvador and Guatemala’ (2004) 46(4) Latin American
Politics and Society 1.
36 Laura J Arriaza and Naomi Roht-Arriaza, ‘Weaving a Braid of Histories: Local Post-Armed Con-
flict Initiatives in Guatemala’ in Rosalind Shaw and Lars Waldorf (eds), Localizing Transitional
Justice: Interventions and Priorties after Mass Violence (Stanford University Press, 2010) 205, 206.
37 Lieselotte Viaene, ‘Life Is Priceless: Mayan Q’eqchi’ Voices on the Guatemalan National Repara-
tions Program’ (2010) 4(1) International Journal of Transitional Justice 4.
38 Naomi Roht-Arriaza, ‘Guatemala: Lessons for Transitional Justice’ in Cheryl Lawther, Dov Jacobs,
and Luke Moffett (eds), Research Handbook on Transitional Justice (Edward Elgar, 2017) 445.
306 Andrew G reIter

a greater number of observations for statistical models. In the future, we will

thus be able to say more about the extent to which transitional justice works
than we can today.
Yet we may always be destined to feel unsatisfied with the ability of tran-
sitional justice to accomplish its goals. In part, this may be due to the goal or
outcome-oriented view of transitional justice held by most researchers and poli-
cymakers. McAdams contends that transitional justice may be better concep-
tualised as a ‘process in which the outcome is uncertain but the undertaking is
valued in itself’.39 In other words, we may not ever truly achieve justice or truth
or reconciliation. Transitional justice may never be done or completed. Yet the
process of wrestling with the past itself may be positive, indeed vital, for demo-
cratic societies. In this view, transitional justice may work simply by continually
being pursued.

13.7 Summary
Evaluating the impact of transitional justice has become a central goal of schol-
ars and policymakers. In assessing whether or not transitional justice works,
researchers focus on a variety of outcomes at three distinct levels of analysis. At
the individual or micro level, researchers use ethnographic studies, interviews,
and surveys to determine how specific mechanisms impact the lives of victims
and perpetrators, how they are perceived by different segments of the population,
and the extent to which they alter views and bring about reconciliation within the
society at large. At the meso or institutional level, researchers use a variety of
qualitative and quantitative methods to evaluate the quality of specific transitional
justice mechanisms and to assess whether or not they achieve their stated goals.
Finally, at the macro or national level, studies of transitional justice impact typi-
cally rely on quantitative, statistical methods to determine if particular choices are
correlated with long-term success on measures of democracy and human rights.
Some researchers have also begun to examine global trends in transitional jus-
tice and the possibility that new norms are successful in improving democracy
and human rights worldwide. Each approach has its strengths and weaknesses,
and research on transitional justice impact overall is hindered by the difficulty
of defining and measuring important concepts like democracy and reconcilia-
tion. Even if convincing evidence of transitional justice impact remains elusive,

39 A James McAdams, ‘Transitional Justice: The Issue that Won’t Go Away’ (2011) 5(2) Interna-
tional Journal of Transitional Justice 304, 312.
 SuCCeSS (or fAIlure) of trAnSItIonAl juStICe 307

however, there may still be important reasons to pursue these mechanisms in post-
conflict and post-authoritarian societies.

13.8 discussion and tutorial questions

You are proposing a new study to determine if a transitional justice mecha-
nism works. Select one mechanism, perhaps something that has been in the
news recently, one on which you are conducting research, or one from course
readings.

1) What outcomes are you most interested in seeing if this mechanism pro-
duces? What level of analysis is this? How would you define or measure this
outcome?
2) What kind of research would you have to conduct to see if the mechanism has
been successful? Briefly outline what your study would look like.
3) What are the limitations of your approach? What other types of research
might be useful to complement your study?

Suggested reading
David, Roman, ‘What We Know About Transitional Justice: Survey and Experimen-
tal Evidence’ (2017) 38(1) Advances in Political Psychology 151.
Mallinder, Louise and Catherine O’Rourke, ‘Databases of Transitional Justice
Mechanisms and Contexts: Comparing Research Purposes and Design’ (2016)
10(3) International Journal of Transitional Justice 492.
Palmer, Nicola, Julia Viebach, Briony Jones, Zoe Norridge, Andrea Grant, Alisha
Patel, Leila Ullrich, Djeyoun Ostowar, and Phyllis Ferguson, Transitional Jus-
tice Methods Manual: An Exchange on Researching and Assessing Transitional
Justice (Swisspeace and Oxford Transitional Justice Research, 2013) <www.
swisspeace.ch/fileadmin/user_upload/Media/Publications/TJ_Methods_
Manual_homepage.pdf>.
Thoms, Oskar NT, James Ron, and Roland Paris, ‘State-Level Effects of Transi-
tional Justice: What Do We Know?’ (2010) 4(3) International Journal of Transi-
tional Justice 329.
van de Merwe, Hugo, Victoria Baxter, and Audrey R Chapman (eds), Assessing the
Impact of Transitional Justice: Challenges for Empirical Research (United States
Institute of Peace Press, 2009).

other resources
Seeking Truth in the Balkans (Directed and produced by Erin Lovall and June
Vutrano, 2014).
308 Andrew G reIter

Bibliography
Arriaza, Laura J and Naomi Roht-Arriaza, ‘Weaving a Braid of Histories: Local
Post-Armed Conflict Initiatives in Guatemala’ in Rosalind Shaw and Lars Wal-
dorf (eds), Localizing Transitional Justice: Interventions and Priorities after Mass
Violence (Stanford University Press, 2010) 205.
Binningsbø, Helga Malmin, Cyanne Loyle, Scott Gates, and Jon Elster, ‘Armed Con-
flict and Post-Conflict Justice, 1946–2006: A Dataset’ (2012) 49(5) Journal of
Peace Research 731.
Cammack, Diana, ‘Reparations in Malawi’ in Pablo de Greiff (ed), The Handbook of
Reparations (Oxford University Press, 2006) 215.
Collins, Cath, Lorena Balardini, and Jo Marie Burt, ‘Mapping Perpetrator Pros-
ecutions in Latin America’ (2013) 7(1) International Journal of Transitional
Justice 8.
Dancy, Geoff, Bridget E Marchesi, Tricia D Olsen, Leigh A Payne, Andrew G
Reiter, and Kathryn Sikkink, ‘Bars and Bargains: New Findings on Transi-
tional Justice in Emerging Democracies’ (2019) 63(1) International Studies
Quarterly 99.
David, Roman, ‘What We Know About Transitional Justice: Survey and Experimen-
tal Evidence’ (2017) 38(1) Advances in Political Psychology 151.
de Brito, Alexandra Barahona, Carmen González-Enríquez, and Paloma Aguilar
(eds), The Politics of Memory: Transitional Justice in Democratizing Societies
(Oxford University Press, 2001).
de Greiff, Pablo (ed), The Handbook of Reparations (Oxford University Press, 2006).
Dodson, Michael and Donald W Jackson, ‘Horizontal Accountability in Transitional
Democracies: The Human Rights Ombudsman in El Salvador and Guatemala’
(2004) 46(4) Latin American Politics and Society 1.
Duthie, Roger and Paul Seils (eds), Justice Mosaics: How Context Shapes Transi-
tional Justice in Fractured Societies (International Center for Transitional Jus-
tice, 2017).
El-Masri, Samar, Tammy Lambert, and Joanna R Quinn (eds), Transitional Justice in
Comparative Perspective: Preconditions for Success (Routledge, 2020).
Gleditsch, Kristian S and Michael D Ward, ‘Double Take: A Reexamination of
Democracy and Autocracy in Modern Polities’ (1997) 41(3) Journal of Conflict
Resolution 361.
Goldstein, Joshua S, Winning the War on War: The Decline of Armed Conflict World-
wide (Dutton, 2011).
Hamber, Brandon and Richard A Wilson, ‘Symbolic Closure through Memory, Rep-
aration and Revenge in Post-Conflict Societies’ (2002) 1(1) Journal of Human
Rights 35.
Hayden, Robert M, From Yugoslavia to the Western Balkans: Studies of a European
Disunion, 1991–2011 (Brill, 2013).
Hayner, Priscilla, Unspeakable Truths: Transitional Justice and the Challenge of Truth
Commissions (Routledge, 2nd edn, 2011).
 SuCCeSS (or fAIlure) of trAnSItIonAl juStICe 309

Krog, Antjie, ‘“This Thing Called Reconciliation […]” Forgiveness as Part of an

Interconnectedness-Towards-Wholeness’ (2008) 27(4) South African Journal of
Philosophy 353.
Malkin, Elizabeth, ‘Guatemalan Court Overturns Genocide Conviction of Ex-
Dictator’, New York Times (online), 20 May 2013 <www.nytimes.com/2013/05/21/
world/americas/guatemalas-highest-court-overturns-genocide-conviction-
of-former-dictator.html?_r=0>.
Mallinder, Louise, Amnesty, Human Rights and Political Transitions: Bridging the
Peace and Justice Divide (Hart Publishing, 2008).
Mallinder, Louise and Catherine O’Rourke, ‘Databases of Transitional Justice
Mechanisms and Contexts: Comparing Research Purposes and Design’ (2016)
10(3) International Journal of Transitional Justice 492.
Marshall, Monty and Keith Jaggers, Polity IV Project: Political Regime Characteristics
and Transitions 1800–2013 (6 June 2014) Systemic Peace <www.systemicpeace.
org/polityproject.html>.
Mayer-Rieckh, Alexander and Pablo de Greiff (eds), Justice as Prevention: Vetting
Public Employees in Transitional Societies (Social Science Research Council,
2007).
McAdams, A James, ‘Transitional Justice: The Issue That Won’t Go Away’ (2011)
5(2) International Journal of Transitional Justice 304.
Mejía, Raúl Molina, ‘The Struggle against Impunity in Guatemala’ (1999) 26(4)
Social Justice 55.
Millar, Gearoid, ‘Local Evaluations of Justice through Truth Telling in Sierra Leone’
(2011) 12(4) Human Rights Review 515.
Olsen, Tricia D, Leigh A Payne, and Andrew G Reiter, Transitional Justice in Bal-
ance: Comparing Processes, Weighing Efficacy (United States Institute of Peace
Press, 2010).
Olsen, Tricia D, Leigh A Payne, and Andrew G Reiter, ‘Transitional Justice in the
World, 1970–2007: Insights from a New Dataset’ (2010) 47(6) Journal of Peace
Research 803.
Payne, Leigh A, Uncivil Movements: The Armed Right Wing and Democracy in Latin
America (Johns Hopkins University Press, 2000).
Pham, Phuong, Patrick Vinck, Mychelle Balthazard, and Sokhom Hean, After the
First Trial: A Population-Based Survey on Knowledge and Perceptions of Jus-
tice and the Extraordinary Chambers in the Courts of Cambodia (Human Rights
Center, University of California, Berkeley, 2011) <www.law.berkeley.edu/files/
HRC/Publications_After-the-First-Trial_06-2011.pdf>.
Roht-Arriaza, Naomi, ‘Guatemala: Lessons for Transitional Justice’ in Cheryl
Lawther, Dov Jacobs, and Luke Moffett (eds), Research Handbook on Transi-
tional Justice (Edward Elgar, 2017) 445.
Sarkin, Jeremy (ed), The Global Impact and Legacy of Truth Commissions (Intersen-
tia, 2019).
Sikkink, Kathryn, The Justice Cascade: How Human Rights Prosecutions Are Chang-
ing World Politics (Norton, 2011).
310 Andrew G reIter

Skaar, Elin, Camila Gianella Malca, and Trine Eide, After Violence: Transitional Jus-
tice, Peace, and Democracy (Routledge, 2015).
Snyder, Jack and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in
Strategies of International Justice’ (2003–2004) 28(3) International Security 5.
Theidon, Kimberly, Intimate Enemies: Violence and Reconciliation in Peru (University
of Pennsylvania Press, 2012).
Thoms, Oskar NT, James Ron, and Roland Paris, ‘State-Level Effects of Transi-
tional Justice: What Do We Know?’ (2010) 4(3) International Journal of Transi-
tional Justice 329.
Tomuschat, Christian, ‘Clarification Commission in Guatemala’ (2001) 23(2) Human
Rights Quarterly 233.
United Nations, ‘Guidance Note of the Secretary-General: United Nations Approach
to Transitional Justice’ (10 March 2010).
Viaene, Lieselotte, ‘Life Is Priceless: Mayan Q’eqchi’ Voices on the Guatemalan
National Reparations Program’ (2010) 4(1) International Journal of Transitional
Justice 4.
Wale, Kim, Confronting Exclusion: Time for Radical Reconciliation, SA Reconcilia-
tion Barometer Survey: 2013 Report (Institute for Justice and Reconciliation,
2013) <http://reconciliationbarometer.org/wp-content/uploads/2013/12/IJR-
Barometer-Report-2013-22Nov1635.pdf>.
Chapter 14

Expanding transitional justice

Lars Waldorf

14.1 Introduction
Transitional justice is undergoing its own transition. As it spread across the globe,
transitional justice addressed new contexts, assumed new forms, and advanced
new goals. In the process, it moved well beyond its initial incarnation as a legal-
institutional mechanism of democratic transition. Transitional justice is now more
commonly viewed as either a set of rights (to truth, justice, and reparations) or a
tool kit of mechanisms (trials, truth commissions, and reparations programs) that
can be applied before, during, and after transitions – or even in the absence of any
transition. Hence, transitional justice now encompasses a truth commission to
deal with the historic abuses of ‘Indian residential schools’ in Canada as well as
community-based, participatory theatre to deal with ongoing, gross violations of
human rights and humanitarian law in Afghanistan’s armed conflict.
Since 2006, there has been a steady expansion of transitional justice so that it
covers a wider range of violations, actors, and measures over a longer time period.
This is most evident in the broad mandates of recent truth commissions, such as
those in Kenya and Tunisia. Strikingly, this expansionism is fueled not by suc-
cess but rather by disappointment with transitional justice’s results. Proponents
of expansion have argued that transitional justice can succeed only if it becomes
more responsive to victims’ needs and economic injustices. Some even propose
supplementing or replacing transitional justice with transformative justice. What
these different approaches have in common is a desire to shift the focus from rec-
tifying past abuses to preventing ongoing or future abuses – that is, from correc-
tive to distributive justice. These approaches align transitional justice more firmly
with peacebuilding and development.
The expansion and transformation of transitional justice is not without
risks. First, it makes promises that will be hard, if not impossible, to meet in
the resource-poor environments where most transitional justice takes place. Such
312 LARS WALDORF

promises could well raise unreasonable expectations among victims and survi-
vors of gross human rights abuses that might be cruelly disappointed. Second,
and relatedly, it could overwhelm transitional justice mechanisms that often labor
under the triple burden of inadequate support, funding, and expertise. Finally, it is
likely to prompt more political opposition and spoiler behavior from those elites
whose economic interests are threatened.
This chapter begins by sketching the political and intellectual background
for the push to expand transitional justice. Next, it explores four key aspects of
transitional justice’s recent expansion: encompassing economic abuses; exposing
the role of economic actors; extending the length of transitions; and enlarging the
measure of guarantees of non-recurrence. The chapter then looks at further efforts
to make transitional justice more transformative, either through gender-just repa-
rations or wholesale transformation. Finally, the chapter considers the ongoing
controversies around the expansion and transformation of transitional justice.

14.2 Background
Transitional justice emerged out of the democratic transitions in Latin America
and Eastern Europe in the 1980s and 1990s. With communism’s collapse and the
Left’s decline, the scholars and activists working on those transitions adopted a
post-utopian ‘reparations politics’ focused on correcting the past.1 That historical
and intellectual context helps explain why their focus was on ‘legal-institutional
reform, rather than transformation at the socio-economic level.’2 Hence, it was
‘prosecutions, truth-telling, restitution, and reform of abusive state institutions –
not some other measures of justice, such as those associated with claims for dis-
tributive justice – [that] were recognized as the legitimate justice initiatives’ during
political transitions.3
By the mid-2000s, the context had shifted dramatically. For one thing, many
political transitions had dead-ended in illiberal democracies, thereby discrediting
the teleology of ‘transitology.’ With this ‘end of the transition paradigm’,4 transi-
tional justice could be decoupled from transitions and expanded to other contexts,
issues, and actors. For another thing, human rights organizations had increas-
ingly pushed for the justiciability of socio-economic rights and its attendant

1 John Torpey, Making Whole What Has Been Smashed: On Reparation Politics (Harvard Univer-
sity Press, 2006) 7.
2 Paige Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional
Justice’ (2009) 31 Human Rights Quarterly 347.
3 Ibid 326 (emphasis in the original).
4 Thomas Carothers, ‘The End of the Transition Paradigm’ (2002) 13 Journal of Democracy 1–21.
 EXPANDING TRANSITIONAL JUSTICE 313

redistributive consequences.5 With this development, transitional justice could be

expanded beyond corrective justice for civil and political rights violations to a
more distributive justice for socio-economic rights violations.
In 2006, Louise Arbour, then United Nations High Commissioner for Human
Rights, gave a public lecture in which she called on transitional justice to become
more ambitious and more transformative by engaging with violations of socio-
economic rights. In a much-quoted passage, Arbour stated:

Transitional justice must have the ambition of assisting the transformation of

oppressed societies into free ones by addressing the injustices of the past through
measures that will procure an equitable future. It must reach to, but also beyond
the crises and abuses committed during the conflict which led to the transition,
into the human rights violations that pre-existed the conflict and caused, or con-
tributed to it. When making that search, it is likely that one would expose a great
number of violations of economic, social and cultural rights.6

Arbour criticized transitional justice’s predominant focus on violations of civil

and political rights (especially bodily integrity rights like the right to be free from
torture). Invoking the Vienna Declaration, she reminded her audience that civil
and political rights are ‘indivisible and interdependent and interrelated’ with eco-
nomic, social, and cultural rights.7 Arbour also argued that transitional justice
needed to address those violations of economic and social rights that reportedly
contribute to many conflicts:

Given transitional justice’s additional objective of bringing about social transforma-

tion that will prevent a resurgence of conflict, it is not only important to build dispute
resolution institutions, but perhaps even more effective to attack the sources of the
legitimate grievances that, if unaddressed, are likely to fuel the next conflagration.8

For Arbour, distributive justice was closely connected to preventing conflict and
gross human rights violations.

5 See, eg, Paul J Nelson and Ellen Dorsey, New Rights Advocacy: Changing Strategies of Develop-
ment and Human Rights NGOs (Georgetown University Press, 2008).
6 Louise Arbour, ‘Economic and Social Justice for Societies in Transition’ (Second Annual Tran-
sitional Justice Lecture, New York University Law School, New York, 25 October 2006). The
speech was subsequently reworked into an article. Louise Arbour, ‘Economic and Social Justice
for Economies in Transition’ (2007) 40 New York University Journal of International Law and
Politics 1–27.
7 Vienna Declaration and Programme of Action Adopted by the World Conference on Human Rights
in Vienna on 25 June 1993. In truth, though, cultural rights remain relatively neglected by transi-
tional justice scholarship, policy, and practice.
8 Arbour, n 6, 8.
314 LARS WALDORF

14.3 Expanding transitional justice

Since Arbour’s speech, transitional justice has expanded in four important ways.
First, it has sought to tackle a range of economic abuses from economic rights vio-
lations to corruption to structural violence. Second, it has paid increasing atten-
tion to accountability for corporate and other economic actors with respect to both
physical integrity and economic abuses. Third, it has extended its temporal focus
beyond a narrow political or war-to-peace transition. Finally, transitional justice
has multiplied the mechanisms used, especially under the rubric of guarantees of
non-recurrence.

Encompassing economic abuses

Arbour’s speech resonated widely. In particular, scholars, policymakers, and
advocates took up her call for transitional justice to address gross violations of
socio-economic rights.9 For example, Rama Mani insisted that transitional justice
‘will lose credibility in the predominantly impoverished and devastated societies
where it operates’ if it does not tackle social injustice, corruption, and resource
exploitation.10 The International Center for Transitional Justice made efforts to
link transitional justice and development.11 The UN’s transitional justice policy
decided to ‘take account of the root causes of conflict and repressive rule, and
address violations of all rights, including economic, social and cultural rights.’12
The first UN Special Rapporteur on the promotion of truth, justice, reparation, and
guarantees of non-recurrence, Pablo de Greiff, devoted one of his first reports to
describing how transitional justice can promote sustainable development.13 His
successor as Special Rapporteur has made the intersection of socio-economic
rights and the Sustainable Development Goals a priority.14

9 For a more sceptical view, see Lars Waldorf, ‘Anticipating the Past: Transitional Justice and Socio-
Economic Wrongs’ (2012) 21 Social and Legal Studies 171.
10 Rama Mani, ‘Editorial: Dilemmas of Expanding Transitional Justice, or Forging the Nexus
between Transitional Justice and Development’ (2008) 2 International Journal of Transitional
Justice 253–254.
11 Pablo de Greiff and Roger Duthie (eds), Transitional Justice and Development: Making Con-
nections (Social Science Research Council and the International Center for Transitional Justice,
2009).
12 UN Secretary General, Guidance Note of the Secretary General: United Nations Approach to
Transitional Justice (March 2010) 7.
13 Pablo de Greiff, Report of the Special Rapporteur on the promotion of truth, justice, reparation,
and guarantees of non-recurrence, A/68/345, 23 August 2013.
14 Fabián Salvioli, Report of the Special Rapporteur on the promotion of truth, justice, reparation,
and guarantees of non-recurrence, A/73/336, 23 August 2018, paras 4–5, 50–64.
 EXPANDING TRANSITIONAL JUSTICE 315

Scholars and policymakers who want transitional justice to address socio-

economic wrongs nonetheless differ over exactly which abuses it should cover.
A narrower approach would focus on economic crimes and serious violations
of socio-economic rights.15 A middle view would add corruption and plunder of
natural resources.16 The most expansive approach would further include structural
violence (that is, systematic discrimination and inequality).17 Scholars and policy-
makers also invoke competing rationales for including socio-economic wrongs in
transitional justice: ‘pragmatic (based on sustainable peace and root causes), phil-
osophical (based on distribution or equity after conflict) and sociological (based
on survivors’ preferences).’18
These debates play out in the creation and operation of various transi-
tional justice mechanisms. Several truth commissions have used their hear-
ings, reports, and recommendations to address socio-economic wrongs, ranging
from violations of the right to health in Timor Leste to land-related injustices
in Kenya.19 Tunisia’s Transitional Justice Law, and the mechanisms it created,
sought accountability for corruption. The Special Rapporteur worried that this
would overburden Tunisia’s truth commission, carry large reputational risks,
and ultimately distract it from its core mission of truth-seeking.20 He repeatedly
expressed a more general concern about

the expansion of the temporal, thematic and functional dimensions of truth com-
mission mandates, without any corresponding increase in their powers. […] it
should come as no surprise that these trends are accompanied by a decline in the
take-up of truth commission recommendations.21

15 See, eg, Evelyne Schmid and Aoife Nolan, ‘“Do No Harm?” Exploring the Scope of Economic and
Social Rights in Transitional Justice’ (2014) 8 International Journal of Transitional Justice 362.
16 See, eg, Dustin N Sharp, ‘Introduction: Addressing Economic Violence in Times of Transition’ in
Dustin N Sharp, Justice and Economic Violence in Transition (Springer, 2014).
17 See, eg, Lisa J Laplante, ‘Transitional Justice and Peacebuilding: Diagnosing and Addressing the
Socioeconomic Roots of Violence through a Human Rights Framework’ (2008) 2 International
Journal of Transitional Justice 331.
18 Zinaida Miller, ‘(Re)Distributing Transition’ (2013) 7 International Journal of Transitional Justice
377. Scholars who combine all arguments include Louise Arbour and Dustin Sharp. See Arbour,
n 6; Sharp, n 16.
19 Commission for Reception, Truth and Reconciliation for Timor-Leste, Chega! (2005) ch. 7.9;
Kenya Truth, Justice and Reconciliation Commission, Report of Truth, Justice and Reconciliation
Commission, vol IV (2013) 48–57.
20 Pablo de Greiff, Report of the Special Rapporteur on the Promotion of Truth, Justice, Repa-
ration, and Guarantees of Non-recurrence: Mission to Tunisia, A/HRC/24/42/Add.1, 30 July
2013, para. 38.
21 Pablo de Greiff, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation,
and Guarantees of Non-recurrence on His Global Study on Transitional Justice, A/HRC/36/50/
Add.1, 7 August 2017, para. 80.
316 LARS WALDORF

Despite such concerns, future truth commissions are likely to focus on an expan-
sive range of socio-economic wrongs.

Exposing economic actors

Initially, transitional justice focused primarily on state actors as well as non-
state actors closely linked to the state (such as paramilitaries). This made sense
as communist regimes in Eastern Europe and authoritarian regimes in Latin
America were mostly responsible for extra-judicial executions, disappear-
ances, and torture. In addition, international law and human rights advocacy
have traditionally emphasized state responsibility. Yet, as transitional justice
was applied to post-conflict contexts, it increasingly engaged with a range of
non-state armed actors.
Famously, the South African Truth and Reconciliation Commission went
further than any previous transitional justice mechanism in examining the larger
political and ethical responsibility of non-state actors. It held public hearings into
how the media, faith organizations, and most importantly the business community
had enabled the apartheid regime to commit executions, disappearances, and tor-
ture. In its final report, the commission made specific findings and recommenda-
tions directed at these sectors. With regard to business, it stated:

Actions taken against trade unions by the state, at times with the collusion of cer-
tain businesses, frequently led to gross violations of human rights. […] The busi-
ness sector failed, in the hearings, to take responsibility for its involvement in state
security initiatives.22

The commission also set out some possibilities for how businesses could make
reparations, including ‘a retrospective surcharge on corporate profits extending
back to a date to be suggested.’23 Once it became clear that the new South African
government would not seek reparations against businesses, the Khulumani Sup-
port Group, a victims’ organization, pursued a civil case against several multina-
tional corporations and banks in US courts under the Alien Tort Statute.24 Despite
the legal and political hurdles encountered by such litigation, victims and their advo-
cates continue to explore various ways to hold a broad range of business actors

22 Truth and Reconciliation Commission of South Africa, Final Report, vol 5 (1988) 252. The com-
mission distinguished among different degrees of culpability. Ibid 24–27.
23 Ibid 319.
24 For a good overview of this litigation, see Charles P Abrahams, ‘Lessons from the South African
Experience’ in Sabine Michalowski (ed), Corporate Accountability in the Context of Transitional
Justice (Routledge, 2013) 162–173.
 EXPANDING TRANSITIONAL JUSTICE 317

accountable for gross human rights violations through transitional justice and
other mechanisms25 – most recently in Colombia.26

Extending transitions
Transitions were initially seen as short windows of opportunity between the fall
of an ancien régime and the consolidation of a new democratic regime. With the
expansion of transitional justice to cover war-to-peace transitions, the transition
period lengthened to encompass the implementation of peace accords as well as
the disarmament, demobilization and reintegration of combatants. However, as
transitional justice has grown in ambition, there have been calls to further extend
the transition period. Dustin Sharp, for example, proposes ‘a (re)conceptualization
of the field to involve a transition to positive peace.’27 This means replacing the
transitional moment with the long durée: ‘as the achievement of positive peace is
a long-term endeavor, the notion of justice for positive peace implies preventative
strategies that look beyond the confines of an unspecified political transition.’28
The other factor prompting reconsideration of the temporal dimension has
been the use of transitional justice mechanisms long after the consolidation of
a democratic political transition. Brazil set up a truth commission 26 years after
the military dictatorship ended. Spain passed a Historical Memory Law, which
provides material and symbolic reparations to victims of Franco’s dictatorship,
30 years after the first democratic elections following Franco’s death. Argentina,
Chile, Guatemala, Peru, and Uruguay are now prosecuting former government
and military officials for gross human rights violations committed during the mili-
tary dictatorships of the 1980s and 1990s. While some argue that Argentina, Bra-
zil, and Spain are still in transition, others think it would be better to use the more
open-ended notion of ‘contending with the past’ instead of ‘transitional justice.’29

25 See, e.g., Michalowski, n 24; PAX, Peace, everyone’s business! Corporate accountability in tran-
sitional justice: lessons for Colombia (2017); Tara Van Ho, ‘Business and Human Rights in Tran-
sitional Justice: Challenges for Complex Environments’ in Surya Deva and David Birchall (eds),
Research Handbook in Business and Human Rights (2020).
26 Sabine Michalowski et al, Entre coaccion y colaboracion – verdad judicial, actores economicos y
conflicto armado en Colombia (Dejusticia, 2018); PAX, n 25, section 11.
27 Dustin N Sharp, ‘Emancipating Transitional Justice from the Bonds of the Paradigmatic Transition’
(2015) 9 International Journal of Transitional Justice 158. Johan Galtung famously distinguished
‘negative peace’, the absence of war, from ‘positive peace’, the absence of structural violence.
Johan Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6 Journal of Peace Research 167.
28 Sharp, ‘Introduction’, n 16, 23.
29 Christine Bell, The Fabric of Transitional Justice: Binding Local and Global Political Settlements
(University of Edinburgh School of Law, 2019) 19. One difficulty with this suggestion is that tri-
als, truth commissions, and reparations in places like Colombia and the Democratic Republic of
Congo are contending with present as well as past abuses.
318 LARS WALDORF

Taking a middle approach, Cath Collins argues that what is happening in many
Latin American states today is ‘post-transitional justice.’30 While the mechanisms
may be the same, the socio-political context and aims are very different:

First, where transitional justice is centrally concerned with attaining and preserv-
ing the minimum institutional requirements of formal democracy, post-transitional
justice focuses on subsequent questions of the quality, reach, and perfectibility of
that democracy. Second, post-transitional justice accordingly questions the com-
prehensiveness and sufficiency of initial transitional justice compromises. […]
Third, […] post-transitional justice has been largely non-state, driven by private
actors operating both ‘above’ and ‘below’ the state.31

Whether conceptualized as transitional or post-transitional justice, what is clear is

that accountability and truth-seeking are long-term ventures that evolve over time
in response to changing socio-political contexts.

Enlarging measures
As the ambit and ambitions of transitional justice grew, policymakers and practi-
tioners had to enlarge the measures beyond trials, truth commissions, reparations,
and lustration/vetting. They enlisted a diverse range of activities – including con-
stitutional reform, educational curricula, and arts projects – into an expanding
praxis of transitional justice. To provide some conceptual and policy coherence,
the UN Special Rapporteur and other scholar-practitioners have used the notion
of ‘guarantees of non-recurrence’ to bring together this disparate array of newer
measures.
Guarantees of non-recurrence started out as a subset of reparations (alongside
restitution, compensation, rehabilitation, and satisfaction).32 The 2005 UN Basic
Principles and Guidelines on the Right to a Remedy and Reparation list several
measures for guarantees of non-recurrence, including civilian control of security
forces, legal and judicial reform, and human rights education. The common thrust
of these measures is prevention – preventing gross violations of international
human rights and humanitarian law as well as the social conflicts that can give rise

30 Cath Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador (Pennsyl-
vania State University Press, 2010).
31 Ibid 22.
32 For a good account of how guarantees of non-recurrence have developed and evolved in inter-
national law, see Naomi Roht-Arriaza, ‘Measures of Non-Repetition in Transitional Justice:
The Missing Link?’ in Paul Gready and Simon Robins (eds), From Transitional to Transfor-
mative Justice (Cambridge University Press, 2019) 107–123. She prefers the term ‘measures of
non-repetition.’
 EXPANDING TRANSITIONAL JUSTICE 319

to such violations.33 Oddly, the UN’s Updated Set of Principles to Combat Impu-
nity, which were also approved in 2005, separated guarantees of non-recurrence
from other forms of reparations. It enumerated just four measures: institutional
reform, law reform, disbandment of parastatal armed groups, and reintegration of
child combatants.34
The UN Secretary-General barely mentioned guarantees of non-recurrence in
his 2004 and 2011 reports on the rule of law and transitional justice. In his 2010
guidance note on transitional justice, he talked instead about institutional reform
but narrowly focused on vetting and human rights training.35 However, with the
creation of a UN Special Rapporteur on the Promotion of Truth, Justice, Reparation
and Guarantees of Non-Recurrence in 2012, guarantees of non-recurrence became
a free-standing pillar of transitional justice. The first Special Rapporteur, Pablo de
Greiff, devoted an entire report to explicating guarantees of non-recurrence. He set
out an expansive definition that goes well beyond the previous emphasis on vet-
ting/lustration and institutional reform: guarantees of non-recurrence are a diverse
mix of context-specific measures designed to reduce the recurrence of systematic
violations against an already victimized society.36 According to de Greiff,

the sort of transformations that are called for in order to approximate anything
resembling guarantees of non-recurrence following mass violations cannot be
achieved through […] institutional reforms alone. […] Lasting societal transforma-
tions require interventions not only in the institutional sphere but also in the cul-
tural sphere and at the level of personal, individual dispositions.37

Following on from this, the Special Rapporteur listed a wide array of institu-
tional, societal, and cultural measures – from constitutional reform to civil society
strengthening to theater performances to psychosocial counseling38 – whose ‘core
function […] is preventive in nature.’39

33 United Nations, Basic Principles and Guidelines on the Right to a Remedy and Reparations for
Victims of Gross Violations of International Human Rights Law and Serious Violations of Interna-
tional Humanitarian Law, A/Res/60/147, 21 March 2006, para. 23.
34 United Nations, Updated Set of Principles for the Protection and Promotion of Human Rights
through Action to Combat Impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Principles 35–38.
35 UN Secretary General, n 12.
36 Pablo de Greiff, Report of the Special Rapporteur on Truth, Justice, Reparations and Guarantees
of Non-Recurrence, A/HRC/30/42, 7 September 2015, paras 20–27.
37 Ibid para. 32.
38 Ibid paras 38–102.
39 Ibid para. 24. The Special Rapporteur fleshed out this preventive role in a subsequent report. Pablo
de Greiff, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation, and
Guarantees of Non-Recurrence, A/72/523, 12 October 2017.
320 LARS WALDORF

The Special Rapporteur’s expansionist reading of guarantees of non-

recurrence would appear to make transitional justice indistinguishable from lib-
eral peacebuilding, conflict transformation, and atrocity prevention.40 Indeed,
many of the guarantees he lists are common provisions of peace agreements.41
Mayer-Rieckh acknowledges that the ‘development and peacebuilding communi-
ties do most activities grouped under the category of guarantees of non-recurrence
without using the term.’42
Other scholar-practitioners propose more limited framings of guarantees of
non-recurrence. Mayer-Rieckh states that they can be distinguished from devel-
opment or prevention in general based on their ‘link with a specific abusive
past.’43 For Roht-Arriaza, they ‘can help navigate between the insufficiency of
current measures and the risk of overexpansion and continued overpromising that
accompany a “transformative” agenda.’44 She further adds that a guarantee of non-
recurrence ‘allows stretching the transitional justice agenda without breaking it,
using the existing hard-won principles and case law.’45
Not surprisingly, it is Colombia, which has designed a highly ambitious and
holistic transitional justice process, that is attempting to implement an expanded
set of guarantees of non-recurrence. The 2011 Victims’ Law provides for various
guarantees of non-recurrence.46 The final peace agreement also devotes several
pages to guarantees of non-recurrence. It states in part:

The guarantee of rights, including economic, social, cultural and environmental

rights, of the rural population […]; the strengthening of the exercise of political
rights […]; the measures to protect and guarantee the rights of the population living
in territories affected by growing of crops used for illicit purposes and to contrib-
ute to overcoming the conditions of poverty, marginalisation and weak institutional
presence […] and the effective judicial control of the criminal organisations and
networks associated with national and regional drug trafficking […] correspond

40 See Pablo de Greiff and Adama Dieng, Joint Study on the Contribution of Transitional Justice to
the Prevention of Gross Violations and Abuses of Human Rights and Serious Violations of Interna-
tional Humanitarian Law, Including Genocide, War Crimes, Ethnic Cleansing and Crimes Against
Humanity, and their Recurrence: Report of the Special Rapporteur on the Promotion of Truth,
Justice, Reparation, and Guarantees of Non-recurrence and the Special Adviser to the Secretary-
General on the Prevention of Genocide, A/HRC/37/65, 6 June 2018.
41 Roht-Arriaza, n 32, 124–125.
42 Alexander Mayer-Rieckh, ‘Guarantees of Non-Recurrence: An Approximation’ (2017) 39 Human
Rights Quarterly 417.
43 Ibid 443, 447; Roht-Arriaza, n 32, 125.
44 Roht-Arriaza, n 32, 106.
45 Ibid 130.
46 Ibid 128–129.
 EXPANDING TRANSITIONAL JUSTICE 321

above all to a logic of non-recurrence of the conflict and a guarantee of human

rights for all.47

However, various armed actors have sought to frustrate the implementation of

these guarantees, principally through the assassination of human rights defenders
and civil society activists.48

14.4 Transformative justice

A number of scholars, policymakers, and practitioners have followed Arbour’s
lead not just on economic wrongs but also by embracing her language of trans-
formation. Some advocate linking transitional justice to development initiatives
to make it more transformative.49 Others take a more radical approach, proposing
‘transformative justice’ as a supplement to, or even replacement for, transitional
justice.
Different scholars have proffered competing definitions of transformative jus-
tice, which draw variously on thinking and practice from gender justice,50 rights-
based development,51 advocacy networks,52 restorative justice,53 reconciliation,54
conflict transformation,55 and positive peace.56 Identifying commonalities among
these different literatures, Paul Gready and Simon Robins developed an initial

47 Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace (Colombia),
Section 5.1, p. 199 <www.peaceagreements.org/view/1845>.
48 Ted Piccone, Peace with Justice: The Colombian Experience with Transitional Justice (Brookings
Institution, 2019) 18–21.
49 See, eg, Lars Waldorf, ‘Legal Empowerment: Between Transition and Transformation’ in Gready
and Robins, n 32, 131–149.
50 Jelke Boesten and Polly Wilding, ‘Transformative Gender Justice: Setting an Agenda’ (2015) 51
Women’s Studies International Forum 75–80.
51 Paul Gready and Simon Robins, ‘From Transitional to Transformative Justice: A New Agenda for
Practice’ (2014) 8 International Journal of Transitional Justice 339.
52 Matthew Evans, Transformative Justice: Remedying Human Rights Violations Beyond Transition
(Routledge, 2018).
53 Anna Erikssson, ‘A Bottom-Up Approach to Transformative Justice in Northern Ireland’ (2009) 3
International Journal of Transitional Justice 301.
54 Erin Daly, ‘Transformative Justice: Charting a Path to Reconciliation’ (2002) 12 International
Legal Perspectives 73.
55 Briony Jones, Elisabeth Baumgartner, and Sidonia Gabriel, A Transformative Approach to Dealing
with the Past (Swisspeace, 2015).
56 Wendy Lambourne, ‘Transitional Justice and Peacebuilding after Mass Violence’ (2009) 3 Interna-
tional Journal of Transitional Justice 28. Her model was deeply indebted to Rama Mani, Beyond
Retribution: Seeking Justice in the Shadows of War (Polity, 2002).
322 LARS WALDORF

definition of transformative justice,57 which they subsequently amended.58 For

them, transformative justice now involves:

(1) emphasizing local agency and resources; (2) prioritizing process and plural-
ism rather than singular paradigms and preconceived outcomes; (3) addressing a
violent past, but in a way that acknowledges continuities between past and present
and that creating a better future is an open-ended, ongoing project; and (4) chal-
lenging unequal and intersecting power relationships and structures of exclusion
through strategic action spanning local, national (the state), and global levels.59

Initially, Gready and Robins appeared to see transformative justice as a way to

practice transitional justice differently, but now they view it as a distinct form of
justice that can be applied even in the absence of transitions.60
Several critiques have been made of transformative justice. The first is that
it is overly vague.61 One advocate acknowledges that transformative justice risks
becoming an empty signifier, rather like reconciliation.62 Nor is it clear exactly
what transformative justice is seeking to transform: political institutions, eco-
nomic structures, social relations, or individual self-efficacy? Gready answers all
of the above – plus the neo-liberal global order.63
The second criticism is that transformative justice is mostly aspirational. As
such, advocates largely ignore ‘scope conditions’ – the political, economic, and
social factors that make transformative justice endeavours and outcomes more
likely.64 Richard Falk is highly sceptical about the possibility of transformative
justice given the combination of a state-centric international order and a neo-
liberal world economy.65 He also observes how attempts at transformation all

57 Gready and Robins, n 51.

58 Paul Gready, ‘Introduction’ in Gready and Robins, n 32.
59 Ibid 27.
60 Gready, n 58, 2 & 18.
61 Margaret Urban Walker, ‘Transformative Reparations? A Critical Look at a Current Trend in
Thinking about Gender-Just Reparations’ (2016) 10 International Journal of Transitional Justice
109; Clara Sandoval, ‘Reflections on the Transformative Potential of Transitional Justice and the
Nature of Social Change in Times of Transition’ in Roger Duthie and Paul Seils (eds), Justice
Mosaics: How Context Shapes Transitional Justice in Fractured Societies (International Center
for Transitional Justice, 2017) 168.
62 Matthew Evans, ‘Addressing Historical Wrongs in Post-transition South Africa: What Role for
Transformative Justice?’ in Matthew Evans (ed), Transitional and Transformative Justice: Critical
and International Perspectives (Routledge, 2019) 45.
63 Gready, n 58, 3 & 13.
64 Richard Falk, ‘Predicaments of Transformative Justice in a Neoliberal and State-Centric World
Order’ in Gready and Robins, n 32, 63. See Padraig McAuliffe, Transformative Justice and the
Malleability of Post-Conflict States (Edward Elgar, 2017).
65 Falk, n 63.
 EXPANDING TRANSITIONAL JUSTICE 323

too often produce illiberal outcomes, whether done from without (Iraq) or from
within (Iran).66
The third criticism is that transformative justice mistakenly privileges pro-
cess over outcomes. Advocates assume that participatory processes will either be
transformative in themselves or produce transformative outcomes. Yet, in fact,
participatory victims’ processes may actually reinforce or promote exclusion – as
in Bosnia.67 Furthermore, transformative justice’s victim-centred approach leaves
little room for participation by perpetrators and combatants.68 Finally, it is difficult
to see how even progressive and inclusive participatory processes could produce
structural transformation.

14.5 Ongoing controversies

While transitional justice’s expansion is still debated, it is mostly a done deal.
Whether as a set of rights or a tool kit of mechanisms, it is now being applied
to a range of socio-economic abuses and non-state actors over longer (and not
necessarily transitional) periods. Furthermore, transitional justice scholarship
and policy have largely adopted the language of transformation. Yet, as Roht-
Arriaza warns, ‘the risk of expanding the transitional justice agenda too far is that
it becomes indistinguishable from a general demand for social change, which then
begs the question of how to make that demand effective.’69
There are two continuing controversies around transformative justice. The
first is the relationship with transitional justice. Lauren Marie Balasco asks
whether transformative justice is a ‘prism or schism in transitional justice?’70
Initially, Gready and Robins seemed to see it as a prism for critiquing transi-
tional justice and thereby making it more transformative.71 By contrast, Evans
conceptualized transformative justice as a distinct practice, arguing that transi-
tional justice mechanisms are not capable of producing transformation.72 Simi-
larly, Balasco argued that ‘pinning transformative justice ideals onto transitional

66 Ibid 79–80.
67 Daniela Lai and Caterina Bonora, ‘The Transformative Potential of Post-War Justice Initiatives in
Bosnia and Herzegovina’, in Evans, n 62.
68 Rebekka Friedman, ‘Implementing Transformative Justice: Survivors and Ex-combatants at the
Comisión de la Verdad y Reconciliación in Peru’ (2018) 41 Ethnic and Racial Studies 705.
69 Roht-Arriaza, n 32, 106.
70 Lauren Marie Balasco, ‘Locating Transformative Justice: Prism or Schism in Transitional Justice?’
(2018) 12 International Journal of Transitional Justice 377.
71 Gready and Robins, n 51.
72 Matthew Evans, ‘Structural Violence, Socioeconomic Rights, and Transformative Justice’ (2016)
15 Journal of Human Rights 7.
324 LARS WALDORF

justice praxis hinders the development of a proper theory of change – one that
may extend beyond transitional justice.’73 More recently, Gready and Robins have
clarified that transformative justice is a separate endeavour. But that still leaves
some unanswered questions. One is: does transformative justice supplement or
replace transitional justice in the context of political or peaceable transitions? If
the former, then should they run concurrently or should they be sequenced (with
transitional justice coming first)?
Second, there are ongoing debates about the political and practical feasibility
of transformative justice. Its proponents are hard pressed to identify examples of
transformative justice beyond transformative gender reparations (see Case study).
Gready and Robins acknowledge that ‘the key challenge is how to translate this
ambition into practice.’74 Evans forthrightly states that transformative justice is
more useful as an analytical lens than as an explicit way of shaping policy and
practice.75 While Lai and Bonora point to the ‘transformative potential’ of the
2014 economic protest movement in Bosnia, they admit that it did not lead to
changes in Bosnia’s economic structures or policies, let alone more lasting social
mobilisation.76 Noting the lack of evidence for transformative justice, Sandoval
argues that it would be better to spend time and resources enhancing the trans-
formative potential of existing transitional justice mechanisms, especially the
under-explored opportunities within guarantees of non-recurrence to bring about
structural change.77

Case study: transformative gender reparations

Several feminist scholars and policymakers have critiqued reparations theory
and practice for returning female victims and survivors to the status quo ante
of political marginalization, economic insecurity, and gender inequality.78 In
response, they developed the concept of transformative gender reparations as a
way to give victims ‘what they ought to have had under fair conditions’ before the

73 Balasco, n 70, 377.

74 Gready and Robins, n 51, 352.
75 Evans, n 62, 36.
76 Lai and Bonora, n 67 (emphasis added).
77 Sandoval, n 61, 192–193.
78 See, e.g., Rashida Manjoo, Report of the Special Rapporteur on Violence against Women, It’s
Causes and Consequences, A/HRC/14/22, 23 April 2010, para. 31; Rodrigo Uprimny Yepes,
‘Transformative Reparations of Massive Gross Human Rights Violations: Between Corrective and
Distributive Justice’ (2009) 27 Netherlands Quarterly of Human Rights 625. Walker critiques this
as a ‘false’ comparison, arguing that reparations practice has already gone well beyond returning
victims to the status quo ante. Walker, n 61, 110, 115–120.
 EXPANDING TRANSITIONAL JUSTICE 325

gross human rights violations.79 Such reparations aim to be both corrective and
distributive, backward-looking and forward-looking, individual and structural.
There are, however, inevitable and unresolved tensions between restoring
victims and transforming structures. Many victims will be desperate for imme-
diate relief and unwilling to wait for long-term structural change. Demands for
transformation may further diminish already low levels of political will to make
reparations. As Walker notes, ‘There is deep irony in promoting a transformative
agenda for reparations when most victims go begging for the most elementary
forms of direct relief.’80 Walker’s greatest worry, however, is that the emphasis
on transformative reparations may result in ‘losing the focus on acknowledg-
ing and redressing harms to victims that is the distinguishing work of reparative
justice.’81 Despite such concerns, the push for transformative reparations has
proceeded apace.
In 2007, civil society organizations produced the Nairobi Principles on
Women and Girls’ Right to a Remedy and Reparations, which declared that

reparation must drive post-conflict transformation of socio-cultural

injustices, and political and structural inequalities that shape the lives of
women and girls; that reintegration and restitution by themselves are not
sufficient goals of reparation, since the origins of violations of women’s
and girls’ human rights predate the conflict situation.82

Two years later, the Inter-American Court of Human Rights set out a promis-
ing model of transformative gender reparations in Gonzalez et al (‘Cotton Field’)
v Mexico, a case that arose in the (non-transitional-justice) context of Mexico’s
femicide and criminal violence.83 In 2014, the UN Secretary-General empha-
sised that ‘reparations should strive to have a transformative effect on [gender]
inequalities, rather than merely reinstate or reinforce the structural conditions
within society that uphold such practices and beliefs that inform the perpetration
(continued)

79 Ruth Rubio-Marín and Pablo de Greiff, ‘Women and Reparations’ (2007) 1 International Jour-
nal of Transitional Justice 332. See Ruth Rubio-Marín (ed), The Gender of Reparations: Unset-
tling Sexual Hierarchies while Redressing Human Rights Violations (Cambridge University Press,
2009).
80 Walker, n 61, 123–124.
81 Ibid 123. The former Special Rapporteur for Violence against Women takes a less zero-sum
approach, stating that transformative reparations must operate at the ‘individual, institutional, and
structural’ levels. Rashida Manjoo, ‘Introduction: Reflections on the Concept and Implementation
of Transformative Reparations’ (2017) 21 International Journal of Human Rights 1197.
82 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation (2007) para. 3
<www.fidh.org/IMG/pdf/NAIROBI_DECLARATIONeng.pdf>.
83 Ruth Rubio-Marín and Clara Sandoval, ‘Engendering the Reparations of the Inter-American Court
of Human Rights: The Promise of the Cotton Field Judgment’ (2011) 33 Human Rights Quar-
terly 1062. Mexico’s compliance with these court-ordered transformative reparations has been
mixed. Emily Jones, ‘Gender and Reparations: Seeking Transformative Justice’ in Carla Ferstman
and Mariana Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes Against
Humanity: Systems in Place and Systems in the Making (Brill, 2nd edn, 2020).
326 LARS WALDORF

(continued)
of sexual violence.’84 More recently, the Transitional Justice Institute published
‘Principles for Transformative Reparations.’85 While these principles and state-
ments represent important advances, they are framed in abstract language that
does not provide much guidance for policymakers seeking to design and imple-
ment transformative gender reparations.
To date, there are very few examples of such reparations. International
and hybrid criminal tribunals have legal, institutional, political, and financial
constraints that make it difficult and perhaps undesirable to order transforma-
tive reparations.86 While some truth commissions have recommended repa-
rations with transformative potential, such potential has often been lost with
subsequent implementation.87 One exception is Morocco’s reparations program,
which, following the truth commission’s recommendation, departed from sharia
law’s discriminatory inheritance law in ‘a small but significant example of the
transformative potential of reparations programs.’88 A report which looked at
three UNIFEM pilot programs to engender community reparations in Morocco,
concluded that the political and socio-economic situation for affected women
beneficiaries had improved but that their overall impact ‘remains limited.’89
The most far-reaching and sustained attempt to implement transforma-
tive reparations is currently happening in Colombia. One of the most gender-just
aspects of the 2011 Victims’ Law is the provision for allocation of joint land titles
to men and women, yet male heads of household are still seen as the actual
landowners.90 One researcher concluded:

The Victims’ Law’s track record of gendered transformations has so far

been disappointing, in spite of its transformative and differential focus.

84 UN Secretary General, Guidance Note of the Secretary General: Reparations for Conflict-Related
Sexual Violence (June 2014) 8. He had made a similar statement in 2011. United Nations Secretary
General, The Rule of Law and Transitional Justice, S/2011/634 (2011) para. 27.
85 Fionnuala Ní Aoláin, Catherine O’Rourke, and Aisling Swaine, ‘Transforming Reparations for
Conflict-Related Sexual Violence: Principles and Practice’ (2015) 28 Harvard Human Rights
Journal 141–146.
86 Andrea Durbach and Louise Chappell, ‘Leaving behind the Age of Impunity: Victims of Gender
Violence and the Promise of Reparations’ (2014) 16 International Feminist Journal of Politics
543; Sarah Williams and Jasmine Opdam, ‘The Unrealised Potential for Transformative Repara-
tions for Sexual and Gender-based Violence in Sierra Leone’ (2017) 21 International Journal of
Human Rights 1281; Sarah Williams and Emma Palmer, ‘Transformative Reparations for Women
and Girls at the Extraordinary Chambers in the Courts of Cambodia’ (2016) 10 International Jour-
nal of Transitional Justice 311. Durbach and Chappell see more promise in the International Crim-
inal Court’s Trust Fund for Victims, which implemented programs separate from court-ordered
reparations. Durbach and Chappell, 555–556.
87 Friedman, n 68; Williams and Opdam, n 86. See Elise Ketelaars, ‘Gendering Tunisia’s Transition:
Transformative Gender Justice Outcomes in Times of Transitional Justice Turmoil?’ (2018) 12
International Journal of Transitional Justice 407.
88 Rubio-Marín and de Greiff, n 79, 325.
89 International Center for Transitional Justice, Morocco: Gender and the Transitional Justice Pro-
cess (2011) 34.
90 Sanne Weber, ‘From Victims and Mothers to Citizens: Gender-Just Transformative Reparations
and the Need for Public and Private Transitions’ (2018) 12 International Journal of Transitional
Justice 98–99.
 EXPANDING TRANSITIONAL JUSTICE 327

A narrow understanding of gender as women, combined with a focus on

women as a vulnerable group in need of protection, prevent more struc-
tural transformations of gendered power relations.91

Overall, transformative gender reparations have so far proven less than trans-
formative. Some radical feminist scholars argue that this is bound to be the case
until transformative justice moves beyond the liberal legalist framing of human
rights and challenges the patriarchal structure of society.92

14.6 Summary
Transitional justice has expanded over recent years in four key respects: encom-
passing economic abuses; exposing the role of economic actors; extending the
length of transitions; and enlarging the measure of guarantees of non-recurrence.
The big question is whether such expansion has made transitional justice any
more successful in achieving its initial goals of truth, justice, and reparations,
let alone its newer goals of non-recurrence (prevention) and transformation. So
far, there is no reason to think that expanding methods and goals will actually
lead to better outcomes – as the UN Special Rapporteur noted with respect to
the expanded mandates of recent truth commissions. Yet, even as we wait for
more empirical studies to answer this question, several scholars, policymakers,
and practitioners are already pressing ahead with the altogether more ambitious
processes and aims of transformative justice.

14.7 Discussion and tutorial questions

1) Is transitional justice currently trying to do too much or too little?
2) Should transitional justice tackle socio-economic wrongs and, if so, what
sorts of wrongs?
3) Should guarantees of non-recurrence be interpreted narrowly or expansively?
4) Should transitional justice be replaced by transformative justice?
5) Does transformative justice undermine the reparative justice that is the hall-
mark of reparations?

91 Ibid 106.
92 Fionnuala Ní Aoláin, ‘Transformative Gender Justice?’ in Gready and Robins, n 32, 163; Jones,
n 83.
328 LARS WALDORF

Suggested reading
Arbour, Louise, ‘Economic and Social Justice for Economies in Transition’ (2007)
40 New York University Journal of International Law and Politics.
Gready, Paul and Simon Robins (eds), From Transitional to Transformative Justice
(Cambridge University Press, 2019).
Jones, Emily, ‘Gender and Reparations: Seeking Transformative Justice’ in Carla
Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War
Crimes and Crimes Against Humanity: Systems in Place and Systems in the Mak-
ing (Brill, 2nd edn, 2020).
Sandoval, Clara, ‘Reflections on the Transformative Potential of Transitional Jus-
tice and the Nature of Social Change in Times of Transition’ in Roger Duthie
and Paul Seils (eds), Justice Mosaics: How Context Shapes Transitional Justice in
Fractured Societies (International Center for Transitional Justice, 2017).
Waldorf, Lars, ‘Anticipating the Past: Transitional Justice and Socio-Economic
Wrongs’ (2012) 21 Social and Legal Studies.

Bibliography
Abrahams, Charles P, ‘Lessons from the South African Experience’ in Sabine
Michalowski (ed), Corporate Accountability in the Context of Transitional Justice
(Routledge, 2013).
Arbour, Louise, ‘Economic and Social Justice for Economies in Transition’ (2007)
40 New York University Journal of International Law and Politics.
Arthur, Paige, ‘How “Transitions” Reshaped Human Rights: A Conceptual History
of Transitional Justice’ (2009) 31 Human Rights Quarterly.
Balasco, Lauren Marie, ‘Locating Transformative Justice: Prism or Schism in
Transitional Justice?’ (2018) 12 International Journal of Transitional Justice.
Bell, Christine, The Fabric of Transitional Justice: Binding Local and Global Political
Settlements (University of Edinburgh School of Law, 2019).
Boesten, Jelke and Polly Wilding, ‘Transformative Gender Justice: Setting an
Agenda’ (2015) 51 Women’s Studies International Forum.
Carothers, Thomas, ‘The End of the Transition Paradigm’ (2002) 13 Journal of Democracy.
Collins, Cath, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador
(Pennsylvania State University Press, 2010).
Commission for Reception, Truth and Reconciliation Timor-Leste, Chega! (2005).
Daly, Erin, ‘Transformative Justice: Charting a Path to Reconciliation’ (2002) 12
International Legal Perspectives.
de Greiff, Pablo, Report of the Special Rapporteur on the Promotion of Truth, Justice,
Reparation, and Guarantees of Non-recurrence: Mission to Tunisia, A/HRC/24/42/
Add.1 (30 July 2013).
de Greiff, Pablo, Report of the Special Rapporteur on the Promotion of Truth, Justice,
Reparation, and Guarantees of Non-recurrence on His Global Study on Transi-
tional Justice, A/HRC/36/50/Add.1 (7 August 2017).
 EXPANDING TRANSITIONAL JUSTICE 329

de Greiff, Pablo, Report of the Special Rapporteur on the Promotion of Truth, Jus-
tice, Reparation, and Guarantees of Non-recurrence, A/68/345 (23 August
2013).
de Greiff, Pablo, Report of the Special Rapporteur on the Promotion of Truth, Jus-
tice, Reparation, and Guarantees of Non-recurrence, A/72/523 (12 October
2017).
de Greiff, Pablo, Report of the Special Rapporteur on Truth, Justice, Reparations and
Guarantees of Non-Recurrence, A/HRC/30/42 (7 September 2015).
de Greiff, Pablo and Adama Dieng, Joint Study on the Contribution of Transitional Jus-
tice to the Prevention of Gross Violations and Abuses of Human Rights and Serious
Violations of International Humanitarian Law, Including Genocide, War Crimes,
Ethnic Cleansing and Crimes Against Humanity, and Their Recurrence: Report of
the Special Rapporteur on the Promotion of Truth, Justice, Reparation, and Guar-
antees of Non-recurrence and the Special Adviser to the Secretary-General on the
Prevention of Genocide, A/HRC/37/65 (6 June 2018).
de Greiff, Pablo and Roger Duthie (eds), Transitional Justice and Development: Mak-
ing Connections (Social Science Research Council and the International Center
for Transitional Justice, 2009).
Durbach, Andrea and Louise Chappell, ‘Leaving behind the Age of Impunity: Vic-
tims of Gender Violence and the Promise of Reparations’ (2014) 16 Interna-
tional Feminist Journal of Politics.
Erikssson, Anna, ‘A Bottom-Up Approach to Transformative Justice in Northern
Ireland’ (2009) 3 International Journal of Transitional Justice.
Evans, Matthew, ‘Addressing Historical Wrongs in Post-transition South Africa:
What Role for Transformative Justice?’ in Matthew Evans (ed), Transitional
and Transformative Justice: Critical and International Perspectives (Routledge,
2019).
Evans, Matthew, ‘Structural Violence, Socioeconomic Rights, and Transformative
Justice’ (2016) 15 Journal of Human Rights.
Evans, Matthew, Transformative Justice: Remedying Human Rights Violations Beyond
Transition (Routledge, 2018).
Evans, Matthew (ed), Transitional and Transformative Justice: Critical and Interna-
tional Perspectives (Routledge, 2019).
Falk, Richard, ‘Predicaments of Transformative Justice in a Neoliberal and State-
Centric World Order’ in Paul Gready and Simon Robins (eds), From Transitional
to Transformative Justice (Cambridge University Press, 2019).
Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace
(Colombia) <www.peaceagreements.org/view/1845>.
Friedman, Rebekka, ‘Implementing Transformative Justice: Survivors and Ex-
combatants at the Comisión de la Verdad y Reconciliación in Peru’ (2018) 41
Ethnic and Racial Studies.
Galtung, Johan, ‘Violence, Peace, and Peace Research’ (1969) 6 Journal of Peace
Research.
Gready, Paul, ‘Introduction’ in Paul Gready and Simon Robins (eds), From Transi-
tional to Transformative Justice (Cambridge University Press, 2019).
330 LARS WALDORF

Gready, Paul and Simon Robins (eds), From Transitional to Transformative Justice
(Cambridge University Press, 2019).
Gready, Paul and Simon Robins, ‘From Transitional to Transformative Justice: A
New Agenda for Practice’ (2014) 8 International Journal of Transitional Justice.
International Center for Transitional Justice, Morocco: Gender and the Transitional
Justice Process (2011).
Jones, Briony, Elisabeth Baumgartner, and Sidonia Gabriel, A Transformative
Approach to Dealing with the Past (Swisspeace, 2015).
Jones, Emily, ‘Gender and Reparations: Seeking Transformative Justice’ in Carla
Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War
Crimes and Crimes Against Humanity: Systems in Place and Systems in the Mak-
ing (Brill, 2nd edn, 2020).
Kenya Truth, Justice and Reconciliation Commission, Report of Truth, Justice and
Reconciliation Commission, volume IV (2013).
Ketelaars, Elise, ‘Gendering Tunisia’s Transition: Transformative Gender Justice
Outcomes in Times of Transitional Justice Turmoil?’ (2018) 12 International
Journal of Transitional Justice.
Lai, Daniela and Caterina Bonora, ‘The Transformative Potential of Post-war Jus-
tice Initiatives in Bosnia and Herzegovina’ in Matthew Evans (ed), Transitional
and Transformative Justice: Critical and International Perspectives (Routledge,
2019).
Lambourne, Wendy, ‘Transitional Justice and Peacebuilding after Mass Violence’
(2009) 3 International Journal of Transitional Justice.
Laplante, Lisa J., ‘Transitional Justice and Peacebuilding: Diagnosing and Address-
ing the Socioeconomic Roots of Violence through a Human Rights Framework’
(2008) 2 International Journal of Transitional Justice 331.
Mani, Rama, Beyond Retribution: Seeking Justice in the Shadows of War (Polity, 2002).
Mani, Rama, ‘Editorial: Dilemmas of Expanding Transitional Justice, or Forging the
Nexus between Transitional Justice and Development’ (2008) 2 International
Journal of Transitional Justice.
Manjoo, Rashida, ‘Introduction: Reflections on the Concept and Implementation of
Transformative Reparations’ (2017) 21 International Journal of Human Rights.
Manjoo, Rashida, Report of the Special Rapporteur on Violence against Women, Its
Causes and Consequences, A/HRC/14/22 (23 April 2010).
Mayer-Rieckh, Alexander, ‘Guarantees of Non-Recurrence: An Approximation’
(2017) 39 Human Rights Quarterly.
McAuliffe, Padraig, Transformative Justice and the Malleability of Post-Conflict States
(Edward Elgar, 2017).
Michalowski, Sabine (ed), Corporate Accountability in the Context of Transitional Jus-
tice (Routledge, 2013).
Michalowski, Sabine et al, Entre coaccion y colaboracion – verdad judicial, actores
economicos y conflicto armado en Colombia (Dejusticia, 2018).
Miller, Zinaida, ‘(Re)Distributing Transition’ (2013) 7 International Journal of Tran-
sitional Justice.
 EXPANDING TRANSITIONAL JUSTICE 331

Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation

(2007) <www.fidh.org/IMG/pdf/NAIROBI_DECLARATIONeng.pdf>.
Nelson, Paul J and Ellen Dorsey, New Rights Advocacy: Changing Strategies of
Development and Human Rights NGOs (Georgetown University Press, 2008).
Ní Aoláin, Fionnuala, ‘Transformative Gender Justice?’ in Paul Gready and Simon
Robins (eds), From Transitional to Transformative Justice (Cambridge University
Press, 2019).
Ní Aoláin, Fionnuala, Catherine O’Rourke, and Aisling Swaine, ‘Transforming Rep-
arations for Conflict-Related Sexual Violence: Principles and Practice’ (2015)
28 Harvard Human Rights Journal.
PAX, Peace, Everyone’s Business! Corporate Accountability in Transitional Justice:
Lessons for Colombia (2017).
Piccone, Ted, Peace with Justice: The Colombian Experience with Transitional Justice
(Brookings Institution, 2019).
Roht-Arriaza, Naomi, ‘Measures of Non-Repetition in Transitional Justice: The
Missing Link?’ in Paul Gready and Simon Robins (eds), From Transitional to
Transformative Justice (Cambridge University Press, 2019).
Rubio-Marín, Ruth (ed), The Gender of Reparations: Unsettling Sexual Hierarchies
While Redressing Human Rights Violations (Cambridge University Press, 2009).
Rubio-Marín, Ruth and Pablo de Greiff, ‘Women and Reparations’ (2007) 1 Interna-
tional Journal of Transitional Justice.
Rubio-Marín, Ruth and Clara Sandoval, ‘Engendering the Reparations of the Inter-
American Court of Human Rights: The Promise of the Cotton Field Judgment’
(2011) 33 Human Rights Quarterly.
Salvioli, Fabián, Report of the Special Rapporteur on the Promotion of Truth, Justice,
Reparation, and Guarantees of Non-recurrence, A/73/336 (23 August 2018).
Sandoval, Clara, ‘Reflections on the Transformative Potential of Transitional Jus-
tice and the Nature of Social Change in Times of Transition’ in Roger Duthie
and Paul Seils (eds), Justice Mosaics: How Context Shapes Transitional Justice in
Fractured Societies (International Center for Transitional Justice, 2017).
Schmid, Evelyne and Aoife Nolan, ‘“Do No Harm?” Exploring the Scope of Eco-
nomic and Social Rights in Transitional Justice’ (2014) 8 International Journal
of Transitional Justice.
Sharp, Dustin N, ‘Emancipating Transitional Justice from the Bonds of the Para-
digmatic Transition’ (2015) 9 International Journal of Transitional Justice.
Sharp, Dustin N, ‘Introduction: Addressing Economic Violence in Times of Tran-
sition’ in Dustin N Sharp (ed), Justice and Economic Violence in Transition
(Springer, 2014).
Sharp, Dustin N, Justice and Economic Violence in Transition (Springer, 2014).
Torpey, John, Making Whole What Has Been Smashed: On Reparation Politics (Har-
vard University Press, 2006).
Truth and Reconciliation Commission of South Africa, Final Report, vol 5 (1988).
United Nations, Basic Principles and Guidelines on the Right to a Remedy and Rep-
arations for Victims of Gross Violations of International Human Rights Law and
332 LARS WALDORF

Serious Violations of International Humanitarian Law, A/Res/60/147 (21 March

2006).
United Nations, Updated Set of Principles for the Protection and Promotion of Human
Rights through Action to Combat Impunity, E/CN.4/2005/102/Add.1 (8 February
2005).
United Nations Secretary-General, Guidance Note of the Secretary-General: Repara-
tions for Conflict-Related Sexual Violence (June 2014).
United Nations Secretary-General, Guidance Note of the Secretary-General: United
Nations Approach to Transitional Justice (March 2010).
United Nations Secretary-General, The Rule of Law and Transitional Justice,
S/2011/634 (2011).
Uprimny Yepes, Rodrigo, ‘Transformative Reparations of Massive Gross Human
Rights Violations: Between Corrective and Distributive Justice’ (2009) 27 Neth-
erlands Quarterly of Human Rights.
Urban Walker, Margaret, ‘Transformative Reparations? A Critical Look at a Cur-
rent Trend in Thinking about Gender-Just Reparations’ (2016) 10 International
Journal of Transitional Justice.
Van Ho, Tara, ‘Business and Human Rights in Transitional Justice: Challenges
for Complex Environments’ in Surya Deva and David Birchall (eds), Research
Handbook in Business and Human Rights (forthcoming).
Vienna Declaration and Programme of Action Adopted by the World Conference on
Human Rights in Vienna on 25 June 1993.
Waldorf, Lars, ‘Anticipating the Past: Transitional Justice and Socio-Economic
Wrongs’ (2012) 21 Social and Legal Studies.
Waldorf, Lars, ‘Legal Empowerment: Between Transition and Transformation’ in
Paul Gready and Simon Robins (eds), From Transitional to Transformative Jus-
tice (Cambridge University Press, 2019).
Weber, Sanne, ‘From Victims and Mothers to Citizens: Gender-Just Transformative
Reparations and the Need for Public and Private Transitions’ (2018) 12 Interna-
tional Journal of Transitional Justice.
Williams, Sarah and Jasmine Opdam, ‘The Unrealised Potential for Transformative
Reparations for Sexual and Gender-based Violence in Sierra Leone’ (2017) 21
International Journal of Human Rights.
Williams, Sarah and Emma Palmer, ‘Transformative Reparations for Women and
Girls at the Extraordinary Chambers in the Courts of Cambodia’ (2016) 10
International Journal of Transitional Justice.
Chapter 15

Doing the fieldwork

Well-being of transitional justice
researchers1

Olivera Simić

15.1 Introduction
Although I know that it is terribly unprofessional, I have held hands with my
interviewees and wept openly with them – if a woman is talking about her expe-
rience being gang-raped, or about her child being abducted, how can I remain
passively un-engaged? I know there’s a fine line about emotional engagement
in this kind of work, but I can’t figure out where that line is and how to properly
negotiate it.2

Transitional justice research involves critical examination of difficult topics that

can raise ethical and methodological issues for researchers. Empirical research
is a common approach to transitional justice studies in the field, yet researchers’
accounts of the tensions that can arise when undertaking research in politically
sensitive environments are largely missing from the scholarly literature. This
chapter aims to introduce you to the myriad ways that researching sensitive top-
ics may affect researchers, and to bring attention to strategies used by researchers
to negotiate these challenges. The chapter concludes with some suggestions for
improving the well-being of researchers when working with difficult topics in
the field.
Although it is a relatively young field of inquiry, we know that transitional
justice has received significant attention from anthropologists, psychologists,

1 This is a revised and updated version of an article that first appeared as Olivera Simić, ‘Feminist
Research in Transitional Justice Studies: Navigating Silences and Disruptions in the Field’ (2016)
17(1) Human Rights Review 95 and Olivera Simić, ‘“Doing the Research I Do Has Left Scars”:
Challenges of Researching in Transitional Justice Field’ Transitional Justice Review 1(5) (2017).
2 Female participant in the study I conducted about well-being of researchers in February 2015.
334 OlIvera SImIć

lawyers and others interested in understanding and critically evaluating how

individuals and societies deal with past human rights abuses in societies in tran-
sition to democracy and the rule of law. Yet, despite the significant number
of qualitative research studies that have been undertaken on mechanisms and
actors, scant attention has been paid to the personal challenges posed by the
research process in transitional, conflict and post-conflict contexts.3 As in other
social science fields, transitional justice research ‘stories’ have been ‘treated
lightly’ and left to be ‘told informally’,4 over conference dinners and coffee
breaks, rather than framed as methodological issues demanding serious and sys-
tematic consideration.
As Stephen Tomsen notes in relation to the limited extent that personal stories
are shared amongst researchers in the field of criminology:

Over dinner and late drinks at research conferences, many of us have realised that
others have shared similar difficulties that are sharpened in the case of qualita-
tive studies. Yet these are mostly not articulated, discussed or theorised […] even
the strong contemporary criminological interest in emotions and criminal justice
issues has not done much to reverse this collective silence […]5

Similarly, Kimberly Theidon notes that ‘the dinner party moment became a leit-
motif’ for researchers who conduct research on violence. She talked to research-
ers about their strategies of emotional and psychological self-care while in the
field and also upon returning and writing their research. Theidon recalls a story of
a colleague who was doing well for a long time after his return from Bosnia and
Herzegovina, where he conducted 100 interviews about the Srebrenica massacre.
When asking him a question about his strategies of self-care, Theidon noted that,

3 Valuable contributions in identifying challenges in conducting qualitative research in difficult

circumstances come from other fields of study, in particular anthropology. For some good reflec-
tions on the difficulties of research in conflict and post-conflict societies, see, eg, Gearoid Millar,
An Ethnographic Approach to Peacebuilding: Understanding Local Experiences in Transitional
States (Routledge, 2014); Dyan Mazurana and Karen Jacobsen (eds), Research Methods in Con-
flict Settings: A View from Below (Cambridge University Press, 2013); Chandra Lekha Sriram
et al (eds), Surviving Field Research: Working in Violent and Difficult Situations (Routledge,
2009); Carolyn Nordstrom and Antonius CGM Robben (eds), Fieldwork Under Fire: Contempo-
rary Studies of Violence and Survival (University of California Press, 1995).
4 For more, see Raymond M Lee and Elizabeth A Stanko (eds), Researching Violence: Essays on
Methodology and Measurement (Routledge, 2003) 4.
5 Stephen Tomsen, ‘Foreword: The Collective Remembering of the Stories of Qualitative Criminol-
ogy’ in Lorana Bartels and Kelly Richards (eds), Qualitative Criminology: Stories from the Field
(Hawkins Press, 2011) v, vii.
 DOIng the fIelDwOrk 335

‘he found himself welling up, bursting into tears, sobbing. He […] has been caught
off guard’.6
For many researchers, being on guard may be an important coping strategy
that allows them to distance themselves from the research topic and its subjects,
but once they return from the field it may be harder to compartmentalise their
experiences. They will try to do it to protect their families and friends from the
details of what they have heard or seen, but it would not be possible to keep those
experiences at bay all the time. Sometimes a sound, smell or thought will bring
up uninvited memories.7
Silence about the various obstacles that scholars have encountered during
their qualitative research process has become a feature of the transitional justice
field. Where sensitive issues are divulged in the research process, it is important
for the researcher to understand the possible effects upon themselves as the recipi-
ent of that information. Heather McCosker, Alan Barnard and Rod Gerber state
that the minimisation of harm to the researcher is a significant ethical consider-
ation, and that researchers must be able to debrief where research and data may
impact the psychological and physical health of all participants.8 This chapter
aims to bring some of these issues to the fore.

15.2 Difficulties of researching violence and

its effects on emotional well-being
While an increasing number of academics and researchers seek to analyse causes
and responses to atrocities, they may not be well prepared to undertake field-
work in politically and economically fragile and unstable societies. It is common
for qualitative researchers to report on the context they are studying by taking
detailed field notes about the setting and the interviews they have conducted.9
However, it is less common for these researchers to report on personal challenges
they have encountered during the research process. Researchers of transitional
justice processes often must pay close attention to painful human experiences

6 Kimberly Theidon, ‘“How was Your Trip?” Self-Care for Researchers Working and Writing on
Violence’ (Working Paper on Research Security No 2, Social Science Research Council, April
2014) 1.
7 Ibid.
8 Heather McCosker, Alan Barnard, and Rod Gerber, ‘Undertaking Sensitive Research: Issues and
Strategies for Meeting the Safety Needs of All Participants’ (2001) 2(1) Forum: Qualitative Social
Research Art 22, 1, 2–6.
9 Virginia Dickson-Smith, Erica Lyn James, and Pranee Liamputtong, Undertaking Sensitive
Research in the Health and Social Sciences: Managing Boundaries, Emotions and Risks (Cam-
bridge University Press, 2008) 38.
336 OlIvera SImIć

and listen to stories of intense suffering and injustice. They may need to see the
world through another person’s eyes,10 which can require techniques for navi-
gating and absorbing life stories that can be deeply disturbing. While research-
ers are expected to maintain a certain detachment from their participants, they
must weight this against the empathy required to grasp the world from another’s
perspective.11
Research in conflict and/or post-conflict societies often confronts fieldwork-
ers with difficult questions12 by disturbing their basic expectations, hopes and
assumptions. Although academic ethics committees will normally act as gate-
keepers as part of a systematic effort to protect from harm the researchers and the
individuals and/or groups who form the research sample,13 researchers frequently
find themselves facing challenges that are difficult to predict and/or manage on
the ground.
In such complex political environments, researchers need to take particular
care of their personal well-being and that of their interviewees, who may belong
to highly vulnerable and stigmatised groups, such as victims of genocide, rape,
torture or other war crimes. It is quite common for researchers undertaking quali-
tative research to report on the context they study by taking detailed field notes
about the setting and the interviews they conducted.14 Researchers who study
transitional justice processes need to pay close attention to painful human experi-
ences and listen to stories of intense suffering and injustices which may person-
ally affect them. They are expected to be experts in the context they research, with
all of its laden complexities, including navigating the contested divisions between
‘victims’ and ‘perpetrators’. A lack of local language skills or social networks
can heighten the risk of ‘being instrumentalized and unconsciously becoming the
voice’ of either non-state actors or government.15
Max Weber was among the first to write about personal involvement in
research. He maintained that social scientists need to be clear about their own

10 Jenny Fleming, ‘Learning to Work Together: Police and Academics’ (2010) 4(2) Policing 139.
11 Antonius CGM Robben, ‘The Politics of Truth and Emotion among Victims and Perpetra-
tors of Violence’ in Antonius CGM Robben and Jeffrey A Sluka (eds), Ethnographic Field-
work: An Anthropological Reader (John Wiley & Sons, 2nd edn, 2012) 175, 84. See also
Roy F Ellen (ed), Ethnographic Research: A Guide to General Conduct (Academic Press,
1984) 227.
12 Sarah MH Nouwen, ‘“As You Set Out for Ithaka”: Practical, Epistemological, Ethical, and Exis-
tential Questions about Socio-Legal Empirical Research in Conflict’ (2014) 27(1) Leiden Journal
of International Law 227.
13 McCosker, Barnard, and Gerber, n 8, 1–14.
14 Dickson-Smith, James, and Liamputtong, n 9, 38.
15 Maria-Joëlle Zahar, ‘Fieldwork, Objectivity and Academic Enterprise’ in Sriram et al, n 3, 256.
 DOIng the fIelDwOrk 337

ideas and values and how these will affect their work.16 While one may argue
that all researchers ‘are to some degree connected to, or part of, the object of
their research’,17 some topics of research are more sensitive than others. For some
researchers, ‘sensitive research’ connotes a study that has emotional, political
and social implications. Joan Sieber and Barbara Stanley define socially sensitive
research as:

[s]tudies in which there are potential consequences or implications, either directly

for the participants in research or for the class of individuals represented by the
research. Such studies may lead to a shift in public policy and it might also affect
people’s attitude towards a particular group.18

Claire Renzetti and Raymond Lee define a sensitive research topic as one
that is ‘intimate, discreditable or incriminating’.19 Lee puts forward another def-
inition of sensitive research that encompasses the topic, the consequences, the
situation and any number of other issues that may arise by saying that sensitive
research is ‘research which potentially poses a substantial threat to those who
are or have been involved in it’.20 This definition suggests that sensitive research
has the potential to affect all of the people involved, including the researchers,
since qualitative researchers immerse themselves in the settings they are studying.
Researchers form personal interactions and connections with participants in their
research, which may affect them in various ways. Indeed, undertaking sensitive
research may leave researchers, as Claire Melrose contends, ‘feeling methodolog-
ically vulnerable […] because of emotional and anxiety challenges […] that may
arise in this context’.21
Lee proposes that sensitive research can be seen as threatening in three broad
areas. The first of these areas is ‘intrusive threat’, which deals with areas that are
‘private, stressful or sacred’.22 As Rebecca Campbell writes, ‘Our emotions influ-
ence our research, and our research can affect us emotionally’.23 It is important

16 Max Weber, Methodology of Social Sciences (Free Press, 1949).

17 Charlotte Aull Davies, Reflexive Ethnography: A Guide to Researching Selves and Others (Rout-
ledge, 2nd edn, 2008) 3.
18 Joan E Sieber and Barbara Stanley, ‘Ethical and Professional Dimensions of Socially Sensitive
Research’ (1988) 43(1) American Psychologists 49, 49.
19 Claire M Renzetti and Raymond M Lee (eds), Researching Sensitive Topics (SAGE Publications,
1993) ix.
20 Raymond M Lee, Doing Research on Sensitive Topics (SAGE Publications, 1993) 4.
21 Margaret Melrose, ‘Labor Pains: Some Considerations on the Difficulties of Researching Juvenile
Prostitution’ (2002) 5(4) International Journal of Social Research Methodology 333, 338.
22 Lee, n 20, 4.
23 Rebecca Campbell, Emotionally Involved: The Impact of Researching Rape (Routledge, 2001) 15.
338 OlIvera SImIć

to examine the feelings and emotional impact that research has on researchers
because it can provide us with a deeper intellectual understanding of the social
phenomena we analyse.24 The second type of threat is a ‘threat of sanction’, which
relates to studies of deviance and involves the possibility that research may reveal
information that is stigmatising or incriminating in some way. The third type of
threat that may be imposed by sensitive research is a ‘political threat’.25 This
refers to the ‘vested interests’ of the powerful in society, and in these situations
researchers may trespass into areas that involve some sort of social conflict.
Tsai argues that political sensitivity is always a challenge for the researcher
doing fieldwork in non-democratic and transitional systems, especially when
doing surveys and quantitative research. She notes that, not only are more research
topics likely to be politically sensitive in these systems, but in trying to collect
precise and unbiased data, researchers are often doing what the government, and
sometimes certain members of that population, would like to prevent.26 Jelena
Subotic provides a profound personal account of threats she received after pub-
licly speaking about the politics in Serbia over Kosovo self-proclaimed indepen-
dence. Her experience demonstrates the necessity, as she puts it, ‘to look more
systematically at how researchers’ identities – as perceived by their informants
and their critics – define the analytical tools and barriers to research’.27
Sensitive research may leave researchers who are working with particularly
traumatic materials subject to a degree of vicarious traumatisation, in which they
may begin to experience the effects of traumatisation themselves.28 Research-
ers who work in the field often undertake empirical studies with highly vulner-
able populations, and their time can be demanding and challenging and test the
researchers’ emotional and psychological well-being.29 Their repeated exposure to
traumatic stories, materials and images can produce symptoms similar to those in
the trauma victims they research. Lee proposes that sensitive research can be seen
as ‘intrusive threat’, which deals with areas that are ‘private, stressful or sacred’.30

24 Ibid.
25 Lee, n 20, 4.
26 Lily L Tsai, ‘Quantitative Research and Issue of Political Sensitivity in Rural China’ in Allen
Carlson et al (eds), Contemporary Chinese Politics: New Sources, Methods, and Field Strategies
(Cambridge University Press, 2010) 246.
27 Jelena Subotić, ‘No Escape from Ethnicity? Confessions of an Accidental CNN Pundit’ (2010)
43(1) PS: Political Science & Politics 115, 120.
28 Laura J Schauben and Patricia A Frazier, ‘Vicarious Trauma: The Effect on Female Counsellors
Working with Sexual Violence Survivors’ (1995) 19(1) Psychology of Women Quarterly 49.
29 Dinka Čorkalo Biruški, ‘Etički Izazovi Kvalitativnih Istraživanja u Zajednici: Od Planiranja do
Istraživačkog Izvještaja’ (2014) 21(3) Ljetopis Socijalnog Rada 93.
30 Lee, n 20.
 DOIng the fIelDwOrk 339

Case study: researchers’ experiences

The purpose of the empirical study I conducted in February 2015 was to find out
about the range of emotional challenges faced by researchers in the transitional
justice field while undertaking empirical research in the field.31 I used an email
questionnaire as the primary data collection method. The interest expressed in
the research project was overwhelming. While questionnaires are often plagued
by low response rates, in a span of only five days I received 35 responses. In total I
received 29 full responses to the questionnaire. The distribution of gender was23
female and six male participants. Participants were based in the UK (8), Aus-
tralia (5), the USA (3), Germany (2), Macedonia (2), Croatia (2), South Africa (2),
Hungary (1), India (1), Sweden (1), Rwanda (1) and Canada (1). Participants came
from the fields of psychology, politics, anthropology, sociology, gender studies
and law. Some of the participants were early career, while others had more than
20 years of experience researching sensitive topics. All but one of the research-
ers conduct qualitative studies with vulnerable groups and spend considerable
time undertaking fieldwork.
Perhaps not surprisingly, a majority of researchers reported that their
research affects them emotionally. All participants wrote about diverse emotions
that their research settings produce:

I currently feel that my research mostly affects me emotionally. Many of

the accounts of conflict-related sexual violence in general […] are often-
times extremely graphic and explicit, which obviously often leaves hor-
rific impressions […]

I collect women’s oral narratives to capture women’s unique experiences

in doing justice. […] These women’s […] knowledge and experiences […]
makes me humble, respectful and privileged but also angry leaving me
with a great feeling of inadequacy and despair as I watch ongoing injus-
tices. […] I try to stay attuned to lived realities of these women which in
turn affects me emotionally and politically.

[A]spects of my research affect me emotionally. […] I would find it hard to

write about without feeling affected by the material […]

I am currently working with rape victims. […] It is a subject that I have

wanted to tackle for a long time but somehow I never felt emotionally
‘ready’. […] It is not easy and I often think about the people I have spoken
to. Sometimes, and particularly when I am alone at night, I do become
very emotional […]
(continued)

31 For full details of the study, see Simić, ‘“Doing the Research I Do Has Left Scars”: Challenges of
Researching in Transitional Justice Field’, n 2.
340 OlIvera SImIć

(continued)
I am […] engaging in the field with people who have lived through terrible
events and often suffered personally, including through the loss of close
family. This does have an emotional impact on me […]

I spent one year researching transitional justice issues in post-genocide

Rwanda which affected me a great deal emotionally […]

I see a lot of pain and suffering. The often times very gruesome sto-
ries these individuals share evoke a variety of emotions in me: sadness,
anger, frustration, hopelessness to name but a few. […] I also have a lot
of very bad dreams in which I re-live the stories people tell me with me
experiencing their stories first-hand […]

As Arditti et al argue, ‘the distance between researchers and participants

is dissolved, their experience becomes our experience’, eliciting profound and
very real emotion.32 In the transitional justice field, the emotional well-being of
a qualitative researcher is important to consider given the sensitive nature of
the topic, as well as the intimate and intensive nature of some qualitative meth-
ods, which may increase risk of harm.33 These concerns for the participants were
echoed by the majority of participants in the study, who felt a great responsibility
of care for their own participants. Some expressed concerns about the potential
re-traumatisation of participants:

I also struggle with the fact that many of the people I interview have
already told their stories to many different organisations and there is a
certain level of fatigue about this. Some people have told me bluntly that
they do not wish to be interviewed (a decision I am always respectful of).

Emotionally I often found it hard to sit with people who told their stories
from the war(s) […] and to decide when I should stop them in order not to
risk retraumatisation […]

The researchers struggled as to whether their questions could harm people by

asking them to recount traumatic events, and whether participants answering
questions on sensitive subjects were being endangered.34 While this has been
well recognised in relation to participants,35 it has rarely been discussed in rela-
tion to researchers. Similar views were echoed by some of the participants in
the study. For example, one participant commented, ‘The concern is dispro-
portionately for the participants in the research and not for the researcher’.
The literature in qualitative research has acknowledged the emotional risk for

32 Joyce A Arditti et al, ‘The Role of Emotions in Fieldwork: A Self-Study of Family Research in a
Correction Setting’ (2010) 15(6) Qualitative Report 1387, 1388. Emphasis in original.
33 Kelly Richards and Lorana Bartels, ‘The Story Behind the Stories: Qualitative Criminology
Research in Australia’ in Bartels and Richards, n 5, 1, 5.
34 Lee and Stanko, n 4, 2.
35 McCosker, Barnard, and Gerber, n 8, 1–14.
 DOIng the fIelDwOrk 341

participants, but there is little evidence providing understanding of researchers’

emotions.36 However, the acknowledgement and awareness of one’s own emo-
tions is important for both participants and researchers. As another participant
noted, ‘The fact that I am conscious of my strong feelings […] makes me able to
be respectful of the research participants and their views.’
Participants in the study reported using various strategies to protect them-
selves from emotional exhaustion by negotiating the topics they will research:
perhaps purposively changing or modifying topics or methods so they are easier
to deal with emotionally, or taking a break from research with physical exer-
cises like long walks. Others find it harder to break from their research, and
seek professional help, and one researcher reported that she may leave aca-
demia altogether. Sharing insights into the risks of doing sensitive research is
important and can help develop strategies into how to cope with some of the
challenges. One strategy that may be used to assist with dealing with emotions is
a debriefing with the researcher after fieldwork is completed. Such a debriefing
will allow the researcher to share feelings and discuss any challenges they may
have encountered.

15.3 ‘Covering up’ our emotions

Researchers such as Ruth Wilkins often reported feeling frustrated by the lack of
discussion of the emotional nature of qualitative research: ‘I consulted the approved
academic and methodologic texts and was astonished at the intellectual cover-up
of emotion […] in the name of expert or academic knowledge’.37 Betty Ferrell
argues that a qualitative consciousness implies that emotions emerging in the field
serve to strengthen the research process because feeling is a way of knowing, but
researchers in social sciences are not necessarily encouraged to write about them.38
There are many reasons why researchers would be reluctant to talk about
the personal costs of doing research. One of the most common concerns is that
if researchers openly express emotion, their research may be seen as too emo-
tional and subjective, thus devaluing their research.39 There are tensions between,
on the one hand, the normative professional requirement of being an objective

36 Gill Hubbard, Kathryn Backett-Milburn, and Debbie Kemmer, ‘Working with Emotion: Issues for
the Researcher in Fieldwork and Teamwork’ (2001) 4(2) International Journal Social Research
Methodology 119.
37 Ruth Wilkins, ‘Taking it Personally: A Note on Emotion and Autobiography’ (1993) 27(1) Sociol-
ogy 93, 94.
38 Betty Ferrell, ‘Ethical Perspectives on Pain and Suffering’ (2005) 6(3) Pain Nursing Management
83, 89.
39 Sherryl Kleinman, ‘Fieldworkers’ Feelings: What We Felt, Who We Are, How We Analyze’ in Wil-
liam B Shaffir and Robert A Stebbins (eds), Experiencing Fieldwork: An Inside View of Qualitative
Research (SAGE Publications, 1991) 184.
342 OlIvera SImIć

observer, and, on the other, intellectually honest interrogation of a researcher’s

emotions while doing research. Researchers may fear breaching the norms of
their discipline, and may fear for their reputation: that they are undermining their
competency and objectivity; that their research is not ‘real’ and is denounced as
‘subjective’. In the field of international law and politics, reflexivity is rare, and
while socio-legal research may be more open to reflexivity, peer reviewers often
discourage reflexive accounts.40 Marcia Bellas argues that there are explicit codes
of conduct in academia that lead to assumption that:

[a]t first glance, research appears to involve little emotional labour relative to
teaching and service. This perception stems from the strong association between
science and objectivity, as well as the view that emotions are an impediment or
contaminant to the scientific process.41

Researchers are expected to write about the facts, the theories and the methods,
but not about the personal, ethical and political characteristics of research.42
Qualitative researchers in the transitional justice field do not readily turn their
analytical lenses inwards to reflect on their ethical and methodological journeys
and interactions from a personal perspective. The rare few who do disclose in a
reflective way expose themselves to the possibility of being ‘accused’ of limiting
their findings. An even smaller number of academics engage in autobiographical
reflection, sometimes due to privacy issues or to avoid the risk of being criti-
cised for ‘self-indulgence and intellectually sloppy work’, which has, as Letherby
argues, ‘some basis in reality’.43 Due to this largely entrenched discourse, the feel-
ings of researchers have often been censored or dismissed in scientific research.44
Such views have been echoed by one participant:

I was presenting a paper at a large international conference and someone asked

me what it was like, as a researcher, to do research on X topic. I started describ-
ing how it felt and found myself engulfed by emotion and tears rolling down my

40 I have experienced such discouragement in a recent peer review of my book proposal. See also
Charli Carpenter, ‘“You Talk of Terrible Things So Matter-of-Factly in This Language of Science”:
Constructing Human Rights in the Academy’ (2012) 10(2) Perspectives on Politics 363.
41 Marcia L Bellas, ‘Emotional Labour in Academia: The Case of Professors’ (1999) 561 The Annals
of the American Academy of Political and Social Science 96, 104.
42 Nouwen, n 12, 227; Matthew Lockwood, ‘Facts or Fictions? Fieldwork Relationships and the
Nature of Data’ in Stephen Devereux and John Hoddinott (eds), Fieldwork in Developing Coun-
tries (Lynne Rienner Publishers, 1992) 164.
43 Gayle Letherby, ‘Dangerous Liaisons: Auto/Biography in Research and Research Writing’ in Ger-
aldine Lee-Treweek and Stephanie Linkogle, Danger in the Field: Risks and Ethics in Social
Research (Routledge, 2000) 91, 109.
44 Emma Wincup, Residential Work with Offenders: Reflexive Accounts of Practice (Ashgate, 2001).
 DOIng the fIelDwOrk 343

cheeks. I remember looking up and no one made eye contact with me, no one said
anything and there was silence – people avoided me and I felt in some way that I/
my reaction represented something that shouldn’t exist or that I should have been
stronger and just buried it.

Partially due to pressure to be perceived as objective scholars, and partially

due to emotional effects that research has on them, many scholars struggle with
balancing their personal and professional lives. Learning how to set up boundar-
ies is important for creating a safe space around you, and in that way we stave off
burnout.45 It is not uncommon for researchers, after years devoted to researching
and writing on violence, to become overwhelmed with a sense of powerlessness
and hopelessness. I have a few colleagues who told me about their decision to stop
researching certain topics because they felt disappointed by seeing continuation
of injustices they have been trying to ‘prevent’ with their work. Some researchers
also feel ‘guilt’ for not being able to help some of their interlocutors who live in
difficult conditions. The feeling of relative privilege that many researchers enjoy
is often coupled with this feeling of powerlessness.46

15.4 researching in transitional justice

contexts
It is important to document and discuss experiences of researchers in the transi-
tional justice field who work on sensitive issues and in contested environments.
So far, there has been a lack of systematic research in ethics and methodologies
used by researchers in the field. Many of these accounts are informed by infor-
mal exchanges of shared experiences with scholars working on sensitive issues.
However, while these informal encounters and conversations between researchers
are important, the implications of these issues for qualitative research, researchers
and research processes merit more serious attention. More space needs to be cre-
ated for such conversations to take place.
It is important to extend theoretical understanding of transitional justice
methods and ethics and intertwine the academic and theoretical with the personal
and subjective. Here, the academic self is studied to gain an understanding of
what it means and what it takes to conduct research in transnational contexts.
These insights are important because they can foreshadow issues that may be
preventing researchers from pursuing research on certain topics or with particular
vulnerable groups. For example, negotiation of well-being may affect the subjects

45 Theidon, n 6, 8.
46 Ibid 9.
344 OlIvera SImIć

of research, whose voices as a result may be either silenced or reinforced. Lack

of support for researchers may mean that some researchers, as some participants
self-reported, decide to cease researching their original ideas or may modify their
research projects. As a consequence, they may decide not to invest their expertise
where it is direly needed, which in turn may affect the quality and/or quantity of
the research and policy making in countries in transition.
Rather than fixating on objectivity, transitional justice – as a social and human
science – should allow for greater, explicit emotional intrusion by a researcher.
This would allow the researcher to contribute to deeper levels of analysis of
context in which they research and also allow them to connect their personal
observations and stories to wider issues within and outside the discipline. These
stories may illuminate the social and political context in which transitional justice
researchers work. Situating the stories of researchers of transitional justice within
a broader context can help us gain in-depth understanding of the specificities of
societies that go through transition. In that sense, studying the personal emotional
challenges of researchers is not just a goal to capture emotional and evocative
content, but can provide a framework for developing a broader analysis of a given
post-conflict, post-dictatorship society.
If we agree that our emotions can influence our research, then not acknowl-
edging them can introduce dangers, since our research can directly feed into
policy and law reforms in countries in transition. Paradoxically, the potential sig-
nificance of our contributions may make us even more resistant to looking inward
and speaking about the difficulties we encounter in our work. In contrast to those
whose research is focused on difficult themes in peaceful democracies, such as
rape or homicide, researchers working in transitional societies may feel more
vulnerable and more helpless and hopeless. In the contexts in which transitional
justice scholars work, the rule of law is often in its infancy if it exists at all, and
the kinds of institutions and non-governmental organisations that should support
victims simply do not exist, or if they do, are extremely underfunded and precari-
ous. In such circumstances, structures to provide emotional support to researchers
or victims are scarce.
This lack of support has, unfortunately, led to some researchers ‘burning out’,
either leaving research altogether or turning their attention to topics that they per-
ceive as less intrusive and ‘dangerous’. There is a need for researchers involved in
transitional justice fieldwork to receive systematic support from their respective
institutions. Universities and research institutions have a duty of care to ensure
that their research staff are not harmed by their participation in that research.
However, while postgraduate students have regular consultations with supervi-
sors to this effect, experienced researchers usually do not have regular formal
supervision and support.
 DOIng the fIelDwOrk 345

Understanding how emotions can have a negative or positive impact on

research, how they might affect our work and ‘who we become as a result’ is
important.47 Informal peer or mentor support groups, and regular meetings to dis-
cuss methodological and emotional challenges of qualitative research on sensitive
topics, could also be considered to minimise the risk to researchers’ well-being.
To approach the issue seriously, universities and research institutions need to put
in place systematic provisions for the support of all researchers, whether early
career or senior, part-time or full-time.
This study underscores the need and demand for transitional justice research-
ers to organise conferences and workshops dedicated to issues of ethics and meth-
odology. It may also be possible to develop a blog that would allow researchers
to exchange their experiences from their fieldwork. PhD students and early-career
scholars would benefit from mentors who would guide them through issues that
they could encounter in the field and assist in locating a scholar, researcher or
organisation in the field that could provide necessary psychological and other
support. As reported by the participants, researchers are generally left to their own
devices to find solutions to the difficulties they face. Ignoring and repressing feel-
ings may endanger the well-being of researchers while also producing distortion
of data, rather than clarity.48

15.5 why should our stories matter?

The difficulties that I faced and complexities of doing sensitive research in a
deeply divided ethno-nationalist context such as Bosnia and Herzegovina made
me think more deeply about the personal risks and cost that feminist transitional
justice scholars face. It also reminded me of the necessity that we as researchers
‘become aware of our own research activities as telling ourselves a story about
ourselves’.49 Writing about women scholars’ personal experiences reveals knowl-
edge that has been subjectively constructed. It brings subjective elements into
critical analysis of theoretical constructs which may serve as ‘impetus, example
and frame’ through which women can identify sites and opportunities for strategic
interventions.50

47 Arditti et al, n 34, 1407.

48 Geraldine Lee-Treweek, ‘The Insight of Emotional Danger: Research Experiences in a Home for
Older People’ in Lee-Treweek and Linkogle, n 51, 128.
49 Frederick Steier, Research and Reflexivity (SAGE, 1993) 3 (emphasis in original).
50 Louise Morley and Val Walsh, Breaking Boundaries: Women in Higher Education (Taylor and
Francis, 1995) 1.
346 OlIvera SImIć

Publishing about our own fieldwork experiences not only humanises the field
but also bridges the gap between women ‘subjects’ and women ‘researchers’.
Those feminist scholars who are at the same time ‘insiders’ and ‘outsiders’ have
not only a unique perspective to offer but also play an important role in bridg-
ing the false dichotomy of ‘subjective’ and ‘objective’ researchers. They bring an
original contribution of an insider-outsider transitional justice researcher’s story
that forms unique storied knowledge. They also occupy the dual role of researcher
and researched and are able to turn their gaze both inward and outward.51
In my writing I have been inspired and instructed by feminist scholars who
have simply refused to accept the dichotomy between personal and the political –
critical race theorists such as Patricia Williams and Mari Matsuda, to name two,
who have incorporated first-person narratives into their discussions of the law.
These and other scholars departed from the academic convention of speaking in
the impersonal, ‘universal’ voice and related incidents they themselves had expe-
rienced. As Susan Brison, a scholar, philosopher and a woman who has herself
experienced rape and attempted murder, writes:

Some may consider such first-person accounts in academic writing to be self-

indulgent, but I consider them a welcome antidote to scholarship that, in the guise
of universality, tends to silence those who most need to be heard.52

Autobiographical researchers’ narratives can help us to map out and unpack

the unique journeys of transitional justice scholars and activists. They provide us
with important insights into the trajectories underpinning researching process and
how particular events and moments in time have provided critical junctures in the
course of research. Such moments are significant and may indeed be central to the
researcher-participant relationship within which the data is elicited and recounted.
They are also significant since they can and do influence a particular form of
knowledge production.
By being reflexive, researchers not only tell us of the impact of their work
on their personal and professional life but they also communicate the relevance
and vigour of their work. I believe that by sharing their narratives surrounding
research ethics and methodology, feminist scholars add to the value, transparency
and impact of their research in multiple ways. Using my own research experience,

51 Loreen N Olson, ‘The Role of Voice in the (Re)Construction of a Battered Women’s Identity: An
Autoethnography of One Woman’s Experience of Abuse’ (2004) 27(1) Women’s Studies in Com-
munication 1, 6.
52 Susan J Brison, Aftermath: Violence and the Remaking of a Self (Princeton University Press, 2002)
6.
 DOIng the fIelDwOrk 347

I explored what it takes to do sensitive feminist research with a group of women

who are considered an out-group, unpopular victims, non-authentic and non-ideal
victims, by a researcher (me) who is at the same time an insider and outsider and
who seeks to disrupt the popular and mainstream discourse that recognises only
one victim and one perpetrator in the fragile and ethnically divided country of
BiH; a country in which divisions are still very strong and where no one who
thinks outside the box is particularly welcomed. Even more, those who write and
speak against the mainstream risk being persecuted, threatened and ostracised.

15.6 Conclusion
While empirical studies are regularly undertaken in the transitional justice field,
there is a dearth of research into researchers’ perspectives into methodology
and ethics of their research. Minimising the risk to the well-being of those who
undertake sensitive research is of paramount importance to the field. It has been
acknowledged that it is necessary to validate serious consideration of a transi-
tional justice researcher’s well-being during the research process and to signal the
complex difficulties that may be encountered during the research process. In this
way, it is hoped that researchers can learn from each other and from their ‘mis-
takes’ and become better informed and more reflective scholars.
Similar experiences are to be found with researchers working broadly on
sensitive topics, such as health and domestic or child violence and abuse. Some
of these common ethical and methodological concerns are inherent in researching
sensitive topics and can hardly be avoided. However, certain concerns are unique
to transitional justice scholars, who not only work on sensitive issues but do so
in vulnerable situations with a high degree of risk to personal safety. Rather than
leaving transitional justice researchers to cope on their own with the difficulties
they encounter, universities and research institutions should develop programs of
support. As I suggest in this chapter, perhaps informal peer and mentor support
groups could be established.
This chapter does not pretend to offer all solutions and outline all methodologi-
cal and ethical concerns, but serves as an initial contribution and thought-starter
about ‘the stories behind the stories’ of empirical research undertaken in the tran-
sitional justice field. It seeks to dismantle the thinking that stories behind research
are trivial or essentially personal with no value for the larger researcher community.

15.7 Discussion and tutorial questions

1) Why is there scant research into methods and ethics of research in the transi-
tional justice field?
348 OlIvera SImIć

2) What are some of the issues that researchers in transitional justice studies
need to deal with when conducting their research?
3) What are some of the effects of the research on the emotional well-being of
researchers?
4) How do you understand the term ‘vicarious trauma’?
5) What are some of the things you can do in order to prepare well for the field
trip in politically unstable societies?
6) What are some of the things you can do in order to prepare yourself for read-
ing/writing/interviewing highly vulnerable groups of people?

Suggested reading
Buckley-Ziestel, Susanne, ‘Ethnographic Researcher after Violent Conflicts: Per-
sonal Reflections on Dilemmas and Challenges’ (2007) 10 Journal of Peace,
Conflict & Development 1.
Clark, Janine N, ‘Fieldwork and Its Ethical Challenges: Reflections from Research
in Bosnia’ (2012) 34 Human Rights Quarterly 823.
Nouwen, Sarah MH, ‘“As You Set Out for Ithaka”: Practical, Epistemological, Ethi-
cal, and Existential Questions about Socio-Legal Empirical Research in Con-
flict’ (2004) 27(1) Leiden Journal of International Law 227.
Rogers-Brown, Jennifer B, ‘More Than a War Story: A Feminist Analysis of Doing
Dangerous Fieldwork’ in Vasilikie Demos and Marcia Texler Segal (eds), At the
Center: Feminism, Social Science and Knowledge (Advances in Gender Research,
vol 20) (Emerald Group Publishing, 2015).
Simić, Olivera, ‘A Tour to a Site of Genocide: Mothers, Borders and Bones’ (2008)
9(3) Journal of International Women’s Studies 320.
Wamai, Njoki, ‘First Contact with the Field: Experiences of Early Career Researcher
in the Context of National and International Politics in Kenya’ (2014) 6(2) Jour-
nal of Human Rights Practice 213.

Bibliography
Arditti, Joyce A, Karen S Joest, Jennifer Lambert-Shute, and Latanya Walker, ‘The
Role of Emotions in Fieldwork: A Self-Study of Family Research in a Correc-
tion Setting’ (2010) 15(6) Qualitative Report 1387.
Bartels, Lorana and Kelly Richards (eds), Qualitative Criminology: Stories from the
Field (Hawkins Press, 2011).
Bellas, Marcia L, ‘Emotional Labour in Academia: The Case of Professors’ (1999)
561 The Annals of the American Academy of Political and Social Science 96.
Biruški, Dinka Čorkalo, ‘Etički Izazovi Kvalitativnih Istraživanja u Zajednici: Od
Planiranja do Istraživačkog Izvještaja’ (2014) 21(3) Ljetopis Socijalnog Rada 93.
 DOIng the fIelDwOrk 349

Brison, Susan J, Aftermath: Violence and the Remaking of a Self (Princeton Univer-
sity Press, 2002).
Buckley-Ziestel, Susanne, ‘Ethnographic Researcher after Violent Conflicts: Per-
sonal Reflections on Dilemmas and Challenges’ (2007) 10 Journal of Peace,
Conflict & Development 1.
Campbell, Rebecca, Emotionally Involved: The Impact of Researching Rape (Rout-
ledge, 2001).
Carlson, Allen, Mary E Gallagher, Kenneth Lieberthal, and Melanie Manion (eds),
Contemporary Chinese Politics: New Sources, Methods, and Field Strategies
(Cambridge University Press, 2010).
Carpenter, Charli, ‘“You Talk of Terrible Things So Matter-of-Factly in This Lan-
guage of Science”: Constructing Human Rights in the Academy’ (2012) 10(2)
Perspectives on Politics 363.
Clark, Janine N, ‘Fieldwork and Its Ethical Challenges: Reflections from Research
in Bosnia’ (2012) 34 Human Rights Quarterly 823.
Davies, Charlotte Aull, Reflexive Ethnography: A Guide to Researching Selves and
Others (Routledge, 2nd edn, 2008).
Demos, Vasilikie and Marcia Texler Segal (eds), At the Center: Feminism, Social
Science and Knowledge (Advances in Gender Research, vol 20) (Emerald Group
Publishing, 2015).
Devereux, Stephen and John Hoddinott (eds), Fieldwork in Developing Countries
(Lynne Rienner Publishers, 1992).
Dickson-Smith, Virginia, Erica Lyn James, and Pranee Liamputtong, Undertak-
ing Sensitive Research in the Health and Social Sciences: Managing Boundaries,
Emotions and Risks (Cambridge University Press, 2008).
Ellen, Roy F (ed), Ethnographic Research: A Guide to General Conduct (Academic
Press, 1984).
Ferrell, Betty, ‘Ethical Perspectives on Pain and Suffering’ (2005) 6(3) Pain Nursing
Management 83.
Fleming, Jenny, ‘Learning to Work Together: Police and Academics’ (2010) 4(2)
Policing 139.
Hubbard, Gill, Kathryn Backett-Milburn, and Debbie Kemmer, ‘Working with Emo-
tion: Issues for the Researcher in Fieldwork and Teamwork’ (2001) 4(2) Inter-
national Journal Social Research Methodology 119.
Kleinman, Sherryl, ‘Fieldworkers’ Feelings: What We Felt, Who We Are, How We
Analyze’ in William B Shaffir and Robert A Stebbins (eds), Experiencing Field-
work: An Inside View of Qualitative Research (SAGE Publications, 1991).
Lee, Raymond M, Doing Research on Sensitive Topics (SAGE Publications, 1993).
Lee, Raymond M and Elizabeth A Stanko (eds), Researching Violence: Essays on
Methodology and Measurement (Routledge, 2003).
Lee-Treweek, Geraldine, ‘The Insight of Emotional Danger: Research Experiences
in a Home for Older People’ in Geraldine Lee-Treweek and Stephanie Linkogle
(eds), Danger in the Field: Risks and Ethics in Social Research (Routledge, 2000).
Lee-Treweek, Geraldine and Stephanie Linkogle, Danger in the Field: Risks and Eth-
ics in Social Research (Routledge, 2000).
350 OlIvera SImIć

Letherby, Gayle, ‘Dangerous Liaisons: Auto/Biography in Research and Research

Writing’ in Geraldine Lee-Treweek and Stephanie Linkogle, Danger in the Field:
Risks and Ethics in Social Research (Routledge, 2000).
Lockwood, Matthew, ‘Facts or Fictions? Fieldwork Relationships and the Nature of
Data’ in Stephen Devereux and John Hoddinott (eds), Fieldwork in Developing
Countries (Lynne Rienner Publishers, 1992).
Mazurana, Dyan and Karen Jacobsen (eds), Research Methods in Conflict Settings: A
View from Below (Cambridge University Press, 2013).
McCosker, Heather, Alan Barnard, and Rod Gerber, ‘Undertaking Sensitive
Research: Issues and Strategies for Meeting the Safety Needs of All Partici-
pants’ (2001) 2(1) Forum: Qualitative Social Research Art 22.
Melrose, Margaret, ‘Labor Pains: Some Considerations on the Difficulties of
Researching Juvenile Prostitution’ (2002) 5(4) International Journal of Social
Research Methodology 333.
Millar, Gearoid, An Ethnographic Approach to Peacebuilding: Understanding Local
Experiences in Transitional States (Routledge, 2014).
Morley, Louise and Val Walsh, Breaking Boundaries: Women in Higher Education
(Taylor and Francis, 1995).
Nordstrom, Carolyn and Antonius CGM Robben (eds), Fieldwork Under Fire: Con-
temporary Studies of Violence and Survival (University of California Press, 1995).
Nouwen, Sarah MH, ‘“As You Set Out for Ithaka”: Practical, Epistemological, Ethi-
cal, and Existential Questions about Socio-Legal Empirical Research in Con-
flict’ (2014) 27(1) Leiden Journal of International Law 227.
Olson, Loreen N, ‘The Role of Voice in the (Re)Construction of a Battered Women’s
Identity: An Autoethnography of One Woman’s Experience of Abuse’ (2004)
27(1) Women’s Studies in Communication 1.
Renzetti, Claire M and Raymond M Lee (eds), Researching Sensitive Topics (SAGE
Publications, 1993).
Richards, Kelly and Lorana Bartels, ‘The Story Behind the Stories: Qualitative
Criminology Research in Australia’ in Lorana Bartels and Kelly Richards (eds),
Qualitative Criminology: Stories from the Field (Hawkins Press, 2011).
Robben, Antonius CGM, ‘The Politics of Truth and Emotion among Victims and
Perpetrators of Violence’ in Antonius CGM Robben and Jeffrey A Sluka (eds),
Ethnographic Fieldwork: An Anthropological Reader (John Wiley & Sons, 2nd edn,
2012).
Robben, Antonius CGM and Jeffrey A Sluka (eds), Ethnographic Fieldwork: An
Anthropological Reader (John Wiley & Sons, 2nd edn, 2012).
Rogers-Brown, Jennifer B, ‘More Than a War Story: A Feminist Analysis of Doing
Dangerous Fieldwork’ in Vasilikie Demos and Marcia Texler Segal (eds), At the
Center: Feminism, Social Science and Knowledge (Advances in Gender Research,
vol 20) (Emerald Group Publishing, 2015).
Schauben, Laura J and Patricia A Frazier, ‘Vicarious Trauma: The Effect on Female
Counsellors Working with Sexual Violence Survivors’ (1995) 19(1) Psychology
of Women Quarterly 49.
 DOIng the fIelDwOrk 351

Shaffir, William B and Robert A Stebbins (eds), Experiencing Fieldwork: An Inside

View of Qualitative Research (SAGE Publications, 1991).
Sieber, Joan E and Barbara Stanley, ‘Ethical and Professional Dimensions of
Socially Sensitive Research’ (1988) 43(1) American Psychologists 49.
Simić, Olivera, ‘Doing the Research I Do Has Left the Scars’ (2017) 1(5) Transitional
Justice Review 134–168.
Simić, Olivera, ‘Feminist Research in Transitional Justice Studies: Navigating
Silences and Disruptions in the Field’ (2016) 17(1) Human Rights Review 95.
Simić, Olivera, ‘A Tour to a Site of Genocide: Mothers, Borders and Bones’ (2008)
9(3) Journal of International Women’s Studies 320.
Sriram, Chandra Lekha, John C King, Julie A Mertus, Olga Martin-Ortega, and
Johanna Herman (eds), Surviving Field Research: Working in Violent and Difficult
Situations (Routledge, 2009).
Steier, Frederick, Research and Reflexivity (SAGE, 1993).
Subotić, Jelena, ‘No Escape from Ethnicity? Confessions of an Accidental CNN
Pundit’ (2010) 43(1) PS: Political Science & Politics 115.
Theidon, Kimberly, ‘“How Was Your Trip?” Self-care for Researchers Working and
Writing on Violence’ (Working Paper on Research Security No 2, Social Sci-
ence Research Council, April 2014).
Tomsen, Stephen, ‘Foreword: The Collective Remembering of the Stories of Quali-
tative Criminology’ in Lorana Bartels and Kelly Richards (eds), Qualitative
Criminology: Stories from the Field (Hawkins Press, 2011).
Tsai, Lily L, ‘Quantitative Research and Issue of Political Sensitivity in Rural China’
in Allen Carlson, Mary E Gallagher, Kenneth Lieberthal, and Melanie Manion
(eds), Contemporary Chinese Politics: New Sources, Methods, and Field Strate-
gies (Cambridge University Press, 2010).
Wamai, Njoki, ‘First Contact with the Field: Experiences of Early Career Researcher
in the Context of National and International Politics in Kenya’ (2014) 6(2) Jour-
nal of Human Rights Practice 213.
Weber, Max, Methodology of Social Sciences (Free Press, 1949).
Wilkins, Ruth, ‘Taking It Personally: A Note on Emotion and Autobiography’ (1993)
27(1) Sociology 93.
Wincup, Emma, Residential Work with Offenders: Reflexive Accounts of Practice (Ash-
gate, 2001).
Zahar, Maria-Joëlle, ‘Fieldwork, Objectivity and Academic Enterprise’ in Chandra
Lekha Sriram, John C King, Julie A Mertus, Olga Martin-Ortega, and Johanna
Herman (eds), Surviving Field Research: Working in Violent and Difficult Situa-
tions (Routledge, 2009).
Index

Note: page numbers in italics indicate a figure.

9/11 Memorial 273 Algerian War, the 134

Alien Tort Statute, the 316
Abuja Protocols, the 231 Allen, Tim 183
accountability: for corruption 315; Al-Senussi, Abdullah 67
customary law and 172; evolution of American Convention on Human Rights 133
318; expansion of TJ and 314; gender amnesty: Action Plan for Peace, Justice,
and 88; as goal of TJ 58; human rights and Reconciliation and 135; for ANC
violations and 199, 231, 302–303; ICC 111; for Biko 111; the Charter for Peace
view of 5; local transitional justice and and Reconciliation and 136; crimes
170; memorials and 270; of non-state against humanity and 138; defined
actors 316–317; peace building and 222; 126–127; Garzón and 128; genocide
reparations and 199; study of rise of and 138; history of 127–128; human
303; Transitional Justice Law and 315; rights violations and 126; ICC and
transitional justice scholarship and 127; 129; ICTR and 129; ICTY and 129;
in Tunisia 315; various forms of 201 international law and 130, 141; justice
accusation 152 and 126; in Latin American countries
Acholi, the 182 127; as managing transition 142;
acknowledgement: art and 241, 244; mercy and 140; the past and 126, 130;
gender and 88–89, 92; memorials reconciliation and 139; reintegrative
and 274; official apologies and 82; shaming and 141; in Sierra Leone
restorative justice and 254; transitional 231; sovereignty and 127; statutes of
justice processes and 4; truth limitation and 126; study of success of
commissions and 81 299; the Taliban and 135; transnational
Action Plan for Peace, Justice, and policy and 129; the TRC and 110; treaty
Reconciliation, the 135 law and 142; truth and 126 see also
Adler, Nanci 23 conditional amnesty; pure amnesty
Afghanistan 135, 136 Amnesty International 40, 101
African National Congress (ANC) 109, amnesty law: in Afghanistan 135; Alfonsín
111, 112, 139 and 137; in Algeria 136; the Algerian
Agenda for Peace, An 220 War and 134; ANC and 139; in ancient
aggravated abduction 135 Athens 30; in Argentina 42–43, 132,
Aguilar, Paloma 17 133, 136–137; authoritarian regimes
Aiken, Nevin T. 19 and 33; Azanian Peoples Organization
Akayesu, Jean-Paul 35, 78 v. President of the Republic of South
al-Bashir, Omar 38, 67 Africa and 111–112; in Chile 133, 134;
Alfonsín, Raul 43, 98, 137 the Committee Against Torture and
Algeria 136 132; crimes against humanity and 130;
354 INDEX

delegitimisation and 13; the Democratic Aylwin, Patricio 99

Republic of Congo and 138n70; in Azanian Peoples Organization v. President
El Salvador 124, 133; end of the US of the Republic of South Africa 111–112
Civil War and 30; Franco and 139; in
Honduras 133; human rights violations Balasco, Lauren Marie 323–324
and 129; impunity and 129; international Ban Ki-moon 176
human rights law and 140; King Juan Barkan, Elazar 15
Carlos and 139–140; Law on National Barnard, Alan 335
Reconciliation as 304; local transitional Barsalou, Judy 270
justice and 174; the Lomé Accords and Barthes, Roland 253
138; LRA and 182; the past and 5–7; Basic Principles and Guidelines on
prominence of 13; Sandoval Rodríguez the Right to Remedy and Reparation
and 134; in Sierra Leone 137–138; for Victims of Gross Violations of
South Africa and 139; South African International Human Rights Law and
Constitutional Court and 111; statutes Serious Violations of International
of limitation and 134; the ‘third wave’ Humanitarian Law (Basic Principles)
and 29; in Uganda 182; in Uruguay 199, 201, 212, 271
100–101, 133; Velásquez and 133; war Basic Principles on the Right to Remedy and
crimes and 130; World War I and 134 Reparation for Victims of Gross Violations
Anđelić, Jadranka 247 of International Human Rights Law
Annan, Kofi 176 and Serious Violations of International
anthropology 334n3 Humanitarian Law (Basic Principles) 76
apartheid 8, 19, 316 Beijing Declaration and Platform for
Arab Spring, the 41–42, 151 Action, the 76
Árbenz, Jacobo 304 Bellas, Marcia 342
Arbour, Louise 313, 320 Ben Ali, Zine el-Abidine 42
Argentina: amnesty law in 133, 136–137; Benjamin, Walter 253
CONADEP and 34; development of TJ Bensouda, Fatou 68, 79
and 42; reparations in 196; retributive Biko, Stephen 111
trials of 140; in the ‘third wave’ 32–33 blackmail 152
Argentine Supreme Court 137 Bonaparte, Napoleon 30
Armed Forces Revolutionary Council Bonora, Caterina 324
(AFRC) 64 Bosnia 35
art: acknowledgement and 241, 244; Bosnia-Herzegovina (BiH) 86–87, 88–91
justice and 245; legal justice and 244; Bosnian War Crimes Chambers (BWCC) 56
recognition and 244; reconciliation Botha, P.W. 112
and 241, 259–260; reparations and Boutros-Ghali, Boutros 220
245; solidarity and 259; as symbolic Braithwite, John 141
closure 260; as symbolic justice 259; as Brazil 33, 105
symbolic recognition 260; as symbolic Brison, Susan 346
reparation 242, 260; truth and 249 Brückner, Julian 21
Association Modeste et Innocent Buckley-Zistel, Susanne 21, 22, 259–260
(AMI) 254 Bulgaria 155
atonement 254 Burundi 175
Ausencias (Germano) 257–259
authoritarian regimes 33 Cambodia 37, 107, 241n1
Avengers, the (Osvetnici) 248n27 Cambodian Genocide Act, the 107
Ayacucho 294 Campbell, Rebecca 337–338
 INDEX 355

Campbell, Tom 18 Committee Against Torture, the 132, 136

Caney, Simon 21, 22 Committee on Lustration (Ukraine) 164
Cape Town High Court, the 111 compensation 195
Carnation Revolution, the 32 complementarity 55, 56, 223
Cassese, Antonio 111, 140–141 conditional amnesty 126 see also amnesty
Center for Systemic Peace, the 301 confession 152
Central African Republic (CAR) 56 conservatism 86
Centre for International Policy Studies Convention Against Torture and Other
(CIPS) 61 Cruel, Inhuman or Degrading Treatment
Chappell, Louise 326n86 or Punishment (CAT) 132, 202
Charter for Peace and Reconciliation, Convention on the Elimination of All
the 136 Forms of Discrimination Against
Charter of the Nuremberg War Crimes Women, the (CEDAW) 76
Tribunal, the 133 Convention on the Prevention and
Chile 34, 99, 133, 134 Punishment of the Crime of Genocide 131
Chilton, Nola 260 Correa, Ana 251–253
Civil Defense Forces in Sierra Leone corrective justice 312–313
(CDF) 64 corruption 155–156
Civil Harmony Law, the 136 Council of Europe (CoE) 14, 164
civil society 110, 159 counter-memorials 283–284
Clinton, Bill 276 Covenant on Civil and Political Rights,
Clinton Administration, the 54 the 76
Cold War, the: democratisation and 29; Covenant on Economic, Social, and
end of 35, 49; history of peace building Cultural Rights, the 76
and 220; justice cascade and 303; the crimes against humanity: amnesty and
Nuremberg trials and 32; reparations 138; amnesty laws and 130; Charter of
and 198; traditional peacekeeping the Nuremberg War Crimes Tribunal
missions and 221 and 133; coining of 134; the Declaration
collaborative creation 247 on Territorial Asylum and 134; duty
Collins, Cath 318 to prosecute and 133; ICTY and 133;
Colombia 77, 129, 201, 326 memorialisation of 242; the Nuremberg
Colombian Justice and Peace Law, the 82 Trials and 31; rape as 88; of the
Colombian Justice and Peace process 208 Ugandan military 182
Comision de la Verdad y Reconciliation criminal justice 5, 13, 88
(CVR) 210 criminal liability 131
Comision Multisectorial de Alto Nivel criminal tribunals 326
(CMAN) 210, 211 critical theory 17
commemoration 269, 272, 283, 284 Croatia 62
commemorative landscapes 284 Crossing the Line 248, 250
Commission for Historical Clarification 304 Cry from the Grave, A (Mujkić) 276
Commission for Reception, Truth and cultural destruction 38
Reconciliation (CAVR) 229–230 cultural rights 314n7
Commission of Inquiry (Uganda) 104 customary law: accountability and 172;
Commission of Inquiry for the Assessment competing versions of 172n16; defined
and Consequences of the Socialist Unity 172; in the Global South 175; post-
Party (SED) Dictatorship in Germany 108 colonial regimes and 172; regulation of
Commission of Inquiry on Overcoming the 172; responsibility and 172; restorative
Consequences of the SED Dictatorship justice and 173; in Somalia 175; state
in the Process of German Unity 108 law and 172
356 INDEX

Cyprus, in the ‘third wave’ 32–33 133; the Geneva Conventions and
Czech Republic, the 155, 160 131; genocide and 131; human rights
conventions and 132; international
Dah Theatre 247–250, 253 human rights law and 142; in
Daly, Kathleen 261 international law 140; Rodríguez and
Dayton Peace Agreement, the 62, 275 133; the Vienna Convention on the Law
de Brito, Barahona 17 of Treaties and 131
Declaration on Territorial Asylum, the 134
de Greiff, Pablo 314, 319 early transitional justice 30–31
de Klerk, F.W. 112 East Timor 36
delegitimisation 13, 15, 22 East Timor Truth and Reconciliation
demilitarization and reintegration (DDR) Commission 175
programs 224, 232 economic development 314
democracy: desire among citizens for economic rights see socio-economic rights
15; impact of TJ on 14, 17; impact of Egypt 42
transitional justice on 11; legitimacy of 22 Eichmann, Adolf 42
Democratic Republic of Congo, the 37, Ellacuría, Rev. Ignacio 124
138n70, 261 El Mozote 124–125
Democratic Socialist Party (Germany) El Salvador: amnesty laws in 124, 133;
108–109 civl war in 162; truth commissions in
democratisation: the Cold War and 29; 34; vetting in 162–163
inclusiveness and 17–18; lustration and empathy 336
156, 157; the ‘third wave’ and 29; truth ending impunity 58
and 156; vetting and 156, 157 England 172
devised theatre 247, 253 Entering the Tiger Zone (Williams) 241n1
diaspora 115 equality 76
dictatorships 155 ethnic cleansing 62
dignity 196, 270, 272, 282 European Convention on Human Rights
Dirty War, the 43, 99, 136 133n43
disintegrative shaming 141 European Court of Human Rights (ECtHR)
distributive justice: as aim of transitional 13, 39, 133n43
justice 2; defined 208; human rights European External Action Service
violations and 313; relation to TJ of 208; (EEAS) 14
reparations and 194 European Forum for Restorative Justice
documentary theatre: classical theatre 194n5
and 247; as form of testimony 245; European Union (EU) 14
memory and 245; the past and 246; as Evans, Matthew 323, 324
reconceptualising TJ 246 everyday justice 173, 185
domestic law 135 extradition 123
Draft Principles on State Responsibility Extraordinary African Chambers in
199n15 Senegal 56
Dube, Siphiwe Ignatius 21 Extraordinary Chambers in the Courts of
Due Obedience Law, the 137 Cambodia (ECCC) 37, 56, 107–108, 295
Durbach, Andrea 326n86
duty to prosecute: in the Basic Principles Falk, Richard 322–323
200; Convention on the Prevention and Ferrell, Betty 341
Punishment of the Crime of Genocide Final Solution, the 52
and 131; crimes against humanity and forced disappearance 135
 INDEX 357

forgiveness: atonement and 254; Portraits Genocide Convention, the 31, 39, 52
of Reconciliation and 254; reconciliation Gerber, Rod 335
and 256; in Rwanda 254–257; truth and German Democratic Republic (GDR)
reconciliation commissions and 100 108–109
formal law 172n14 Germano, Gustavo 257–259
Forsythe, David 53 German Unification Treaty, the 152
fourth wave, the 29 Germany 31
France 129 Gibson, James 11
Franco, Francisco 42, 125–126, 139 global justice 22
Frente Farabundo Martí para la Liberación Global South, the 172, 175
Nacional (FMNLF) 124 gomo tong ritual 183n56
Fujimori, Alberto 42 Gonzalez-Enrequez, Carmen 17
Full Stop Law, the 43, 137 Gonzalez et al v Mexico 325
Gordon, Gregory S. 51n3
gacaca: assignation of guilt of 181; in Grbavica: Esma’s Secret (Žbanić)
Burundi 175; as example of local 86, 89
transitional justice 171, 175; as hybrid Gready, Paul 321–322, 323–324
court 180n47; ICJ and 174; ICTR and Greece 32–33
174; NGOs’ view of 181; reconciliation Grodsky, Brian 21
and 181; in Rwanda 180–181; the Grupo Cultural Yuyachkani 251–253
Rwanda Tribunal and 180–181; as tool guarantees of non-recurrence 318–320
of TJ 85 Guatemala 304–305
Galtung, Johan 317n27 guerrilla groups 211
Garzón, Baltazar 40, 128 Guiding Principles on Internal
Gbagbo, Laurent 38 Displacement 201
gender: acknowledgement and 88–89, guilt: gacaca courts and 181; lustration
92; defined 74–75; impunity and 85; and 157, 164; vetting and 157, 164
international law and 77; memorials and Guzmán, Juan 40
284; ostracism and 82; power and 75;
reparations and 90; Victims’ Law and 213 Habré, Hissène 56
gender-based violence 78 Hansen, Thomas Obel 21
gender equality measures 76–77 Hayner, Priscilla: on magamba spirit
gender hierarchies 75 healers 174; on post-conflict Guatemala
gender inequality 75 304–305; on reconciliation 106; on
gender justice 91 transitional periods 10–11; on truth and
gender norms 75 reconciliation commissions 298
gender policy 79 Hazan, Pierre 15, 24
gender rights 77 healing rituals 173
Geneva Conventions, the: duty to Herzegovina 35
prosecute and 131; ICTY and 52; justice Hirsch, Marianna 285
cascade and 39; the Nuremberg Trials Historical Memory Law, the: reparations
and 31; on the treatment of prisoners and 317; Spanish CIvil War and 42
130–131 Holocaust, the 18, 31, 198
genocide: amnesty and 138; duty to Holy Roman Empire, the 51
prosecute and 131; ICTR and 53; homosexuality 280, 281
ICTY and 53; memorials and 272; of Honduras 133
Muslim Bosniaks 35; in Rwanda 35, 78, Horne, Cynthia 150
180–181 Hugo, Pieter 254, 257
358 INDEX

human rights: aims of TJ and 177; equality memorials as challenge to 275, 282; rule
and 76; global justice and 22; institution of law and 222
building and 15; International Judicial inclusiveness 17–19
Intervention and 52; sexual violence Indonesia 36, 227
and 87 informal justice 176–177
human rights activists 197 informal law 172n14
Human Rights Committee, the 132–133 institutional reform 319
human rights conventions 132 institution building 3, 15, 20–21
human rights law 199 institutions 297
human rights organisations 105 instrastate conflict 220–221
human rights violations: accountability integrity 150
and 39, 199, 231, 302–303; amnesty and Inter-American Commission on Human
126; amnesty laws and 129; of ANC Rights 101
111; in Argentina 43; in authoritarian Inter-American Court of Human Rights:
regimes 204; destruction of secret in Brazil 105; in Costa Rica 14; ECtHR
archives and 158; in dictatorships 155; and 133n43; El Mozote and 124–125;
distributive justice and 313; in the Honduras and 133; human rights
ECtHR 13; in the Inter-American Court violations and 13; influence of 133n43;
of Human Rights 13; justice cascade justice cascade and 39; reparations
and 39; memorials and 270, 274; non- and 202n24; on transformative gender
state actors and 316; prosecution of reparations 325; Velásquez and 133
perpetrators of 222, 225; reparations interests of justice 56
and 196, 197, 199, 200, 210; reparations International Center for Transitional
programs and 295; research of xvii; Justice, the 41, 153, 314
restitution and 196; socio-economic International Convention Against Torture,
rights and 313; study of 294, 298; the 39
symbolic reparations and 242; truth and International Court of Justice (ICJ) 54
reconciliation commissions and 101, International Covenant on Civil and
103; vetting and 151; victim/perpetrator Political Rights (ICCPR) 132
dichotomy and 204, 205–206; victims of International Criminal Court (ICC):
2, 193, 274 accountability and 5; al-Bashir and
Human Rights Watch 135 67; Al-Senussi and 67; amnesty and
Hungary 33 129; Bensouda as chief prosecutor of
Huntington, Samuel 32 68; complementarity and 55; ‘crisis’
Hussein, Saddam 153 of 66–67; criticisms of 38, 60, 67–68;
Huyse, Luc 178n40 delegitimising effect of 13; gender-
hybrid courts: BWCC and 56; based violence and 78; gender policy
development of. See also of 79; history of 37–38, 49, 53–54;
internationalized courtsECCC as 56; ICJ and 54; international law and 38;
gacaca as example of 180n47; IJP and international relations and 38; issues
56; SCSL as 56; Serious Crimes Panels with 55–56; jurisdiction of 54–55,
of the District Court of Dili and 56; 129; justice cascade and 303; Kenyatta
SPSC as 229 and 67; Kony and 184; mato oput and
174; Portraits of Reconciliation and
immunity 98, 100, 127, 135, 137 254; record of 66; reparations and 202;
impunity: aims of TJ and 177; amnesty and the Singapore compromise and 66; in
123; amnesty laws and 129; gender and Uganda 184; Uganda and 182; universal
85; local transitional justice and 178; jurisdiction and 55; US position on 54
 INDEX 359

international criminal justice (ICJ): international justice 35, 36

criticisms of 59–61; defined 50; as international law: amnesty and 130, 141;
division of TJ 50; gacaca and 174; goals domestic law and 135; duty to prosecute
of 58–59; international law and 50; and 140; gender and 77; the ICC and
local transitional justice and 177; peace 38; ICJ and 50; ICTR and 53; the
building and 57; Pinochet and 128–129; Nuremberg Trials and 52; reparations
purpose of 56 and 195, 199; restitution and 196; sexual
international criminal law: aggravated violence and 78; tribunals and 8
abduction and 135; forced disappearance International Military Tribunal at
and 135; ICTR and 53; ICTY and 53; Nuremberg see Nuremberg Trials, the
local transitional justice and 173–174 International Military Tribunal for the Far
International Criminal Tribunal for East see Tokyo War Crimes Tribunals, the
Rwanda (ICTR): amnesty and 129; international relations 38
gacaca and 174; gender policy and international tribunals 35 see also
79; history of 35, 53; ICTY and International Criminal Tribunal for
53; international jurisdiction and Rwanda (ICTR); International Criminal
8; international law and 53; local Tribunal for the Former Yugoslavia
transitional justice and 227; SCSL (ICTY)
and 64; sexual violence and 78; International Year of Reconciliation, the 9
spillover effect of 14; transitional interstate conflict 220–221
justice measures and 24; verdict In the Land of Blood and Honey (Jolie)
against Nyiramasuhuko 85 see also 89–90
international tribunals Investigative Commission on the Situation
International Criminal Tribunal for of the ‘Disappeared’ People and Its
the Former Yugoslavia (ICTY) 8; Causes (Uruguay) 100
amnesty and 129; case study of 62–63; Iraq 153
contributions of 62–63; cost of 291; Islamic Salvation Front (FIS) 136
crimes against humanity and 133; Islamic State in Iraq and Syria (ISIS) 79
gender policy and 79; history of 35,
52; ICTR and 53; impact on rule of Japan 31
law of 62; imprisonment of Lukić Jarr, Alfredo 244
and 248n27; interpretation of work of Jewish Museum Berlin 284
58–59; local transitional justice and Johnson, Andrew 30
227; peace building and 63, 224; rape Juba peace talks 60
and 88; SCSL and 64; sexual violence Judicial Service Commission (JSC) 163
and 77; transitional justice measures justice: amnesty and 126; art and 245;
and 24; trial of Milošević and 297; defined 2; gender norms and 75;
verdict against Krstić of 278; verdict institutional sense of 10; legal and
against Plavšić 85 see also international political concept of 12; lustration and
tribunals 156; normative concept of 22; peace and
international humanitarian law 53 123, 127, 222, 223, 233–234; societal
international human rights 176–177, 179 variation in conceptions of 227; vetting
international human rights law 135, 140, 142 and 156
internationalized courts 56 see also hybrid justice cascade: coining of 39; criminal
courts tribunals and 303; criticisms of 303; the
International Judges and Prosecutors end of the Cold War and 303; Guatemala
(IJP) 56 and 304; ICC and 303; Responsibility to
International Judicial Intervention 52 Protect and 303
360 INDEX

justice deficit 19 Libya 153

justice gaps 90–91 Like-Minded Group, the (LMG) 54
Lin, Maya 273, 284
Kabbah, Ahmad Tejan 64, 232 local, the 171
Kant, Immanuel 141 local transitional justice: accountability
Karadžić, Radovan 62 and 170; aims of 177–179; amnesty
Kardstet, Susanne 259 laws and 174; Annan’s support of
Kenyatta, Uhuru 67 176; controversies of 179–180; debate
Kersten, Mark 66–67 over terminology of 169n3; defined
Khmer Rouge 37, 107, 241n1 171; development of 169–170; in East
Khulumani Support Group, the 316 Timor 175; everyday justice and 185;
Kigali Memorial Center 272, 273 functionalist approaches to 179; gacaca
King Juan Carlos 139 and 171; gomo tong ritual and 183n56;
Kirchner, Néstor 43 ICJ and 177; ICTR and 227; ICTY and
Kony, Joseph 37, 60, 182, 184 227; impunity and 178; international
Kosovo Relocated Speicalist Judicial criminal law and 173–174; international
Institution 56 human rights and 176, 179; legitimacy
Kosovo War, the 36 of 178, 185; limits of 179; magamba
Krog, Antjie 296 spirit healers and 170, 174, 185; mato
Krstić, Radislav 278 oput and 171; peace building and 235;
Kurze, Arnaud 23 RAMSI and 228; reintegration and
175; reparations and 178; in Rwanda
Lagos, Ricardo 99–100 171, 180–181; in Sierra Leone 174; in
Lai, Daniela 324 Uganda 171 see also transitional justice (TJ)
Lamont, Christopher 23 Lomé Accords, the 64, 113, 138, 231
Land Restitution Unit (URT) 213 Lord’s Resistance Army (LRA) 37, 182, 183
Law of Amnesty (Uruguay) 100 Lubanga, Thomas 37
Law of Due Obedience 43 Lukić, Milan 248n27
Law of Expiry (Uruguay) 100–101 lustration: accusation and 152; benefits
Law of Political Isolation 153 of 154; blackmail and 152; confession
Law on National Reconciliation 304 and 152; controversies of 156; in the
Lee, Raymond 337–338 Czech Republic 155, 160; defined
legal pluralism 172 149; democratisation and 156, 157;
legitimacy: of democracies 22; of essentiality of 163; etymology of 150;
institutions 22; of local transitional in the German Unification Treaty 152;
justice 178, 185; peace building and guarantees of non-recurrence and 319;
234; transitional justice measures and 22 guilt and 157, 164; history of 151–154;
Lerner Febres, Salomón 253 in Hungary 33; in Iraq 153; justice
Letherby, Gayle 342 and 156; in Libya 153; lost expertise
Levy, Daniel 272 and 158; in Poland 33, 160–161; in
Liberia 64–65, 175 post-communist Europe 152–153, 159;
Liberian Truth and Reconciliation Qaddafi and 153; reconciliation and 157;
Commission, the: contributions of regime change and 154; in Romania 33;
115–116; on diaspora 115; gender and rule of law and 153; in the Soviet Union
115; gender perspective of 82; National 33; the Stasi and 152; trust and 150,
Transitional Government for Liberia and 154–155; truth and 165; in Ukraine 164;
115; Palava Hut Forum and 115–116 use of secret archives for 158
Libeskind, Daniel 284 lustration court, in Poland 161
 INDEX 361

lustration laws: CoE and 164; in the Czech memory imperative, the 272
Republic 160; in Poland 161; the ‘third memory landscapes 269
wave’ and 29; in the Ukraine 164 Menem, Carlos 43, 99, 137
Lutz, Ellen 39 mercy 140
Mesić, Lana 254, 257
magamba spirit healers 170, 174, 185 military dictatorships 2
Malan, Magnua 110–111 Milonović, Marko 63
Malawi 295 Milošević, Dijana 246, 247, 248–250,
Mallinder, Louise 142 260–261
Mandela, Nelson 110 Milošević, Slobodan 35, 62, 278, 297
Mani, Rama 314 Minow, Martha 11, 19, 242
material reparations 196 see also missing persons 87n32
reparations Mladić, Ratko 62, 278
mato oput: criticisms of 182–183; as modern transitional justice 31
example of local transitional justice 171, Morales, Innocente Orlando Montano 124
175; ICC and 174; LRA and 183 Morocco 326
Matsuda, Mari 346 Mothers of Srebrenica 276
Mayer-Rieckh, Alexander 320 Mothers of the Plaza del Mayo 137,
Mbeki, Thabo 112 295–296
McAdams, James 12, 306 mourning 270
McCosker, Heather 335 Mozambique 170, 174, 185
McEvoy, Kieran 141 Mubarak, Hosni 42
Melrose, Claire 337 Mujica, José 101
Memorial in Commemoration of Famines’ Mujkić, Muhamed 276
Victims 273 multidimensional peace operations 221
memorials: accountability and 270; murals 271
acknowledgement and 274; Basic Murphy, Colleen 21, 22
Principles and 271; as challenge
to impunity 275, 282; defined 270; Nairobi Principles on Women’s and Girls’
democratisation of remembrance and Right to a Remedy and Reparations 325
273; dignity and 272; as fighting against narrative 15, 23
oblivion 279; as form of symbolic National Commission for the Right to
reparations 271; functions of 285–286; Identity 43
gender and 284; genocide and 272; National Commission on the Disappeared
human rights violations and 274; (CONADEP) 34, 98, 137
memory and 285; mourning and 270; National Commission on Truth and
the past and 286; purposes of 269; Reconciliation (Chile) 99–100
reconciliation and 270; transitional National Conflict Mapping Survey,
justice processes and 269, 282; truth and the 116
reconciliation commissions and 271; national development agencies 10
victims and 270 National Genetic Databank, the 43
Memorial to the Homosexuals Persecuted National Pacification Law, the 43
under the National Socialist Regime National Reconciliation Charter, the 135
279–283 National Reparations Commission 304
Memorial to the Murdered Jews of National Repatriation Commission 101n13
Europe 273 National Revolutionary Unity 304
memory 245, 251, 285 National Strategy for War Crimes
memory boom, the 272 Processing, the 87
362 INDEX

National Transitional Government for abuses and 317n29; progress and 142; in
Liberia 115 the public sphere 106; reconciliation and
Nettlefield, Lara 278–279 106; TJ as contending with 317; vetting
non-governmental organisations (NGOs) and 161
9, 77, 98, 181 Payne, Leigh 61
non-state actors 316–317 peace: extradition and 123; justice and
North Atlantic Treaty Organization 123, 127, 222, 223, 233–234; positive
(NATO) 35 and negative 317n27; societal variation
Nunca Más 43, 98–99 in conceptions of 227
Nuremberg Principles, the 52 peace building: accountability and 222;
Nuremberg Trials, the: controversies of CAVR and 229–230; conservatism
31–32; crimes against humanity and and 86; criticisms of 225–228; DDR
31; criticisms of 51–52; end of the Cold programs and 224; expanding domain of
War and 32; the Geneva Convention TJ and 221–222; goals of TJ and 223–224;
and 31; the Genocide Convention and history of 220; ICJ and 57; ICTY and
31; international law and 52; modern 63, 224; justice sensitivity of 233;
international criminal law and 31; legitimacy and 234; liberal assumptions
modern transitional justice and 31; post- of 219, 225–226; local transitional
conflict societies and 8; significance of justice and 235; the past and 222–223;
51; the Universal Declaration of Human politics of 234; post-conflict justice and
Rights and 31 50; retribution and 223; shared goals of
Nyiramasuhuko, Pauline, ICTR verdict TJ and 236; SPSC and 229; structural
against 85 inequality and 226; in Timor Leste 224;
truth and reconciliation commissions
oblivion 279 and 222–223; truth telling and 114;
Ocampo, Luis Moreno 67 UNTAET and 229
Office of Cambodian Genocide Peacebuilding Commission, the 221
Investigations 107 perpetrators 284
official apologies 82 Peru 42
Olsen, Tricia 61 Peruvian Reparations Program, the 204
Ongwen, Dominic 184n58 Peruvian Truth and Reconciliation
Operation Condor 40 Commission, the 251, 257
Organization for Security and Cooperation Petritsch, Wolfgang 276
in Europe (OSCE) 14 Petrovic, Vladimic 23
ostracism 82 photographs 253
Ovcara Memorial Center 272 Pinochet, Augusto: arrest of 127, 297; ICJ
and 128–129; truth and reconciliation
Pacto de Olvido 125–126 commissions and 99; universal
Pajibo, Ezekiel 115 jurisdiction and 40, 127
Palava Hut Forum 115–116 Plavšić, Biljana 85
Palava Huts 175 Poland 33, 160–161
past, the: amnesty and 126, 130; political will 17
Cambodians’ remembrance of 107; Portraits of Reconciliation 254–257
commemoration and 269, 283; post-colonial regimes 172
delegitimisation and 15; documentary post-memory 285
theatre and 246; manipulation of 16; post-transitional justice 42, 318
memorials and 286; peace building and Potočari 276
222–223; photographs and 253; present Potočari Memorial 272
 INDEX 363

Pou, Luis Alberto 101 and 106; restorative justice and 194;
power 75 in Rwanda 254–257; in South Africa
Principles and Guidelines on the Right to a 139; storytelling and 114; structural
Remedy and Reparation 318 inequality and 106; study of 294, 296;
‘Principles for Transformative TRC and 112–113; trust and 18; truth
Reparations’ 326 and 106; Tutu and 139; ubuntu and 296;
private enterprise 2 vetting and 157; violence and 106
Proclamation of Amnesty and Pardon 30 Reconciliation Barometer Project, the 294
Programa Integral de Reparaciones (PIR) reconciliation ceremonies 113
210–211 reconciliation rituals 174, 183
progress 142 redistributive justice 233
Promotion of National Unity and redress 199n15
Reconciliation Act 110 Red Rubber Boots (Žbanić) 89
Protocols on Reparations, the 4–5 regime change: democratic 17; institution
public interests 19 building and 20; lustration and 154;
public sector, the 151 transitional justice measures and 3;
public silence 89 transitional periods and 20–21; trust and
public sphere, the 106 18; vetting and 154
punishment 141, 228 regime consolidation 14, 22–23
pure amnesty 127 see also amnesty Regional Assistance Mission to the
put smrti 276 Solomon Islands (RAMSI) 228
Regional Committee for Establishing
Qaddafi, Muammar 153 the Facts about War Crimes and Other
qualitative research 341 Gross Violations of Human Rights on
the Territory of the Former Yugoslavia
Ranisavljević, Nebojša 248n27 (RECOM) 111–112
rape: as crime against humanity 88; Registro Unico de Victimas (RUV) 211
criminalisation of 78–79; criminal rehabilitation 195
justice and 88; ICTY and 88; in post- reintegration 175
war BiH 86–87, 88–91; Rwandan reintegrative shaming 141
genocide and 78; in traditional courts 85 Reiter, Andrew G. 61
rape camps 89 remembering 272
Rawls, John 21 remembrance 273
Realpolitik 10 Renzetti, Claire 337
recognition 244 reparations: accountability and 199; aims
reconciliation: as aim of local transitional of 209; in Argentina 196; art and 245;
justice 177–178; as aim of TJ 177–178; in the Basic Principles 200; in Brazil
AMI and 254; amnesty and 139; art 105; for businesses 316; CMAN and
and 241, 259–260; contested meaning 210, 211; collective 211; Colombian
of 59; Crossing the Line and 250; Justice and Peace process and 208; as
forgiveness and 256; gacaca courts communicative gestures 243; the CVR
and 181; as goal of ICJ 59; lustration and 210; dignity and 196; distributive
and 157; as measure of effectiveness justice and 194; end of the Cold War
of TJ mechanisms 292; memorials and 198; gender and 80–81, 83, 90, 92;
and 270; narrative and 23; Palava guarantees of non-recurrence and 318;
Huts and 175; the past and 106; guerrilla groups and 211; the Historical
Portraits of Reconciliation and 254; Memory Law and 317; history of 198;
relationship between former opponents human rights activists and 197; human
364 INDEX

rights violations and 196, 197, 199, 200, Commission and 295; victims’ rights
210; the ICC and 202; Inter-American and 201
Court of Human Rights and 202n24; in restorative measures 4
international law 195; local transitional restorative processes 60
justice and 178; magamba spirit healers retraumatisation 340
and 174; monetary compensation and retribution 141, 223
206, 208–209; Mothers of the Plaza del retributive justice 56, 59, 75, 184
Mayo and 295–296; politics of 210; retributive processes 60
restorative justice and 194, 271; RUV revenge 17
and 211; sexual violence and 80; in Revolutionary United Front, the (RUF)
Sierra Leone 206–207; socio-economic 64, 231
change and 90; socio-economic rights rhetoric 108
and 209; in South Africa 19; structural Ricoeur, Paul 140
inequality and 325; suffering and 204–205; right to remedy 200
target groups of 204–206; the ‘third Ríos Montt, Efraín 125, 304
wave’ and 29; transformative justice Robins, Simon 321–322, 323–324
and 325; transitional justice processes Rodríguez, Velásquez 133
and 203; truth and reconciliation Roht-Arriaza, Naomi 320, 323
commissions and 104, 105, 203; United Romania 33, 155
Nations Secretary-General’s Report on Rome Statute for the International
the Rule of Law and Transitional Justice Criminal Court, the: the Clinton
in Conflict and Post-Conflict Societies Administration and 54; equality and
80; UNSCR 1325 and 81; victim- 76; expansion of TJ and 9; gender-
centred justice and 80; Victims’ Law and based violence and 78; jurisdiction of
211–213 see also material reparations; the ICC and 129; the LMG and 54; the
symbolic reparations; transformative Singapore compromise and 54
reparations Rosa Winkel, the 280
reparations commission 105 Rule 150 4–5
reparations politics 312 rule of law: aims of TJ and 177; desire
reparations programs: as administrative among citizens for 15; impact of ICTY
programs 207; cost of 291; funding on 62; impunity and 222; institution
of 207; in Guatemala 305; human building and 20–21; lustration and 153;
rights violations and 295; in Malawi multidimensional peace operations and
295; in Morocco 326; in Sierra 221; risk to TJ researchers and 344;
Leone 207; study of success of vetting and 153
298–299; transformative reparations Rule of Law and Transitional Justice in
and 326 Conflict and Post-Conflict Societies, The
Republika Srpska 278–279 50, 222
responsibility 172 Rule of Law Tools for Post-Conflict States.
Responsibility to Protect 52, 303 Vetting: an Operational Framework 153
restitution 195, 196, 213 Rwanda: genocide in 35, 78, 180–181; local
restorative amnesty 142 transitional justice in 171, 180–181, 185;
restorative justice: acknowledgement and punishment of war criminals in 228
254; as aim of transitional justice 2; Rwanda Tribunal, the 180–181
customary law and 173; defined 173n18;
reconciliation and 194; reparations and Sale, Ali Abdullah 42
194, 271; retributive justice and 59, 184; Sandoval, Clara 324
Sierra Leone Truth and Reconciliation Sandoval Rodríguez, Miguel Ángel 134
 INDEX 365

Sanguinetti, Julio María 100 socio-economic rights: failure of TJ to

Saona, Margarita 254 address 314; human rights violations
Schwarzenberger, Georg 51n3 and 313; reparations and 209; the
sequencing 223 Sustainable Development Goals
Serious Crimes Panels of the District Court and 314; truth and reconciliation
of Dili 56 commissions and 315; the Vienna
sexual violence: in BiH 87–91; continued Declaration and 313; violations of 314
prevalence of 78; convictions of 78; solidarity 259
as focus of the Women, Peace and Somalia 175
Security agenda 77; gender justice Sontag, Susan 253, 254
and 91; historical ignorance of 77; South Africa 19, 139
as human rights issue 87; ICTR and South African Constitutional Court 111
78; ICTY and 77; in international law South African Truth and Reconciliation
78; ISIS and 79; in local and national Commission (TRC): ANC and 112;
courts 78; patriarchal patterns of 83; Botha and 112; criticisms of 110; on
reparations and 80; theoretical debate degrees of culpability 316n22; de
concerning 83 Klerk and 112; exposition of non-state
sharia law 326 actors of 316; history of 34, 109–110;
Sharp, Dustin 317 individualised amnesty and 110;
Sharpeville Memorial Garden 273 reconciliation and 112–113; ubuntu
Shivering of the Rose, The 249, 250 and 296
Sieber, Joan 337 South Africa Truth Commission Report,
Sierra Leone: amnesty law in 137–138; the 106
composition of rebel forces of 178n41; sovereignty 127
creation of special court of 37; gender Soviet Union, the 33
reform in 82; peace building efforts in Spain 33, 107, 139
224; reconciliation ceremonies in 113, Spanish Civil War, the 42
174; reparations in 206–207; Timor Spanish Union of Progressive
Leste and 232 Prosecutors 40
Sierra Leone Civil War: amnesty laws and Special Court for Sierra Leone (SCSL):
137–138; brutality of 63–64; history of AFRC and 64; case study of 63–65;
231; Liberia’s involvement in 64–65; history of 37; as a hybrid court 56; ICTR
RUF and 231 and 64; ICTY and 64; issues with 56;
Sierra Leone Peace Museum 272 Sierra Leone Truth and Reconciliation
Sierra Leone Truth and Reconciliation Commission and 113; spillover effect of
Commission: accountability for human 14; trial of Charles Taylor and 64–65;
rights violations and 231; criticisms of Truth and Reconciliation Commission
113; local transitional justice and 174; and 65; UNAMSIL and 231
Lomé Accords and 113; OHCHR and Special Jurisdiction for Peace, the (JEP) 82
113, 232; restorative justice and 295 Special Panels for Serious Crimes (SPSC)
Sikkink, Kathryn 39, 302–303 229, 230
Simić, Olivera 261 Special Panels of the Dili District Court
Singapore compromise, the 54, 66 36, 37
Slovenia 62 Spinner-Halev, Jeff 15
Snyder, Jack 57–58 Srebrenica 35, 62, 275–276
Socialist Unity Party (SED) 108–109 Srebrenica-Potočari Memorial Centre
social justice 233 275–279
socially sensitive research 337–339 Staatssicherheit (Stasi) 109, 152
366 INDEX

Stanley, Barbara 337 Revolution and 32; Cyprus and 32–33;

state law 172 democratization and 29; Greece
State War Memorial 273 and 32–33; lustration laws and 29;
Statute and Rules of Procedure of the reparations and 29; truth commissions
ICC 201 and 29; Turkey and 32–33
statutes of limitation 126, 129, 134 This Babylonian Confusion 249–250
Story About Tea 248 Tickner, J. Ann 73
storytelling 114 Timor Leste: local transitional justice
Stover, Eric 61 in 170; peace building efforts in 224,
structural inequality: critics of TJ and 236; 228–230; punishment of war criminals
peace building and 226; reconciliation in 228; Sierra Leone and 232
and 106; reparations and 325; in Sierra Tokyo War Crimes Tribunals, the 8, 31,
Leone 233 51, 52
structural violence 234–235, 314, 317n27 Tomsen, Stephen 334
Sub-Commission on Promotion and traditional values 85
Protection of Discrimination and transformation 20, 23
Protection of Minorities 199 transformative gender reparations
Sub-Commission on Promotion and 324–325, 327
Protection of Human Rights 199 transformative justice: criticisms of 322–323;
Subotic, Jelena 338 defined 321–322; expansion of TJ and
suffering 204–205 311, 321, 323; reparations and 325;
sufficient gravity 56 transformative gender reparations and
Summer Research University Srebrenica- 324; transitional justice measures and 23
Potočari 278 transformative reparations: in Colombia
surveys 294 326; criminal tribunals and 326;
Sustainable Development Goals, the 314 grounds for 208–209; levels of
symbolic closure 260 operation of 325n81; in Mexico 325n83;
symbolic justice 259 reparations programs and 326; truth and
symbolic recognition 260 reconciliation commissions and 326;
symbolic reparations: art as form of Victims’ Law and 326–327 see also
242, 260; defined 195–196; in the reparations
Democratic Republic of Congo 261; transitional justice (TJ): accountability
human rights violations and 242; and 314; after World War II 30–31;
material reparations and 196; memorials availability of resources for 224–225;
as form of 271; as part of reparations changes of definition of 8; coining of 7;
packages 243; research of 261; scope of common views of 311; ‘contending with
practices of 196n7; the South African the past’ and 317; corrective justice and
Truth and Reconciliation Commission 312–313; criticisms of 58–60; current
and 243 see also reparations practices of 12; defined 1, 22, 123;
delegitimisation and 13; distributive
Taliban, the 135 justice and 208; documentary theatre
Taylor, Charles 37, 64–65, 115 and 246; economic rights and 314;
Teitel, Ruti 10, 12, 13, 41 everyday justice and 173; expanding
temporality 259 domain of 221–222; gendered justice
testimony 245, 246 gaps of 90–91; gendered violence
Theidon, Kimberly 294, 334 and 85; goals of peace building and
third wave, the: amnesty laws and 29; 223–224; history of 29, 30–31, 312;
Argentina and 32–33; the Carnation ICJ and 50; impact of 14; impact on
 INDEX 367

democracy of 11; incentives to use transitional justice researchers: emotional

of 24; levels of analysis of 291–293; exhaustion of 341; emotions of 338,
measurement of effectiveness of 185; 342, 343; empathy of 336; infromal
the past and 300, 306, 317; peace encounters of 343; lack of support for
building and 50, 236; permanence of 41; 344; personal experiences of 333–335;
politics of 234; post-transitional justice personal well-being of 336; strategies
and 318; as site of power production 75; for support of 345; strategies for well-
standardised approaches to 226–228; being of 341; writing about personal
structural inequality and 236; structural experiences of 345–346
violence and 314; study of success of transitional justice scholarship 16, 127, 141
297; success of in Guatemala 304–305; Transitional Justice Strategy 87
theatre and 260; in the ‘third wave’ transitional justice theory 21
32–33; transformation of 43–44; transitional periods 17, 20
transformative justice and 23, 311, 321, transnational policy 129
323; value of 306; victims and 272–273 treaty law 142
see also local transitional justice Treaty of Versailles, the 30
transitional justice aims 2, 294 trials 12, 13
Transitional Justice Institute 326 trust: civic 18; in institutions 15, 18;
transitional justice instruments 13 lustration and 150, 154; in post-
transitional justice law 315 dictatorial societies 18; reconciliation
transitional justice measures: aims of 2; and 18; societal 11; transitional justice
application of 11, 17, 19; categories measures and 3; truth and reconciliation
of 2, 6, 12; criticisms of 226; as building 11; vetting and 150, 154
delegitimisation and 22; effects of 7; truth: amnesty and 126; art and 249;
EU promotion of 14; expansion of TJ democratisation and 156; dissemination
and 318; expectations for 12; influence of 108; emotional 108; forensic 108;
on transformation 20; influence on lustration and 165; Palava Huts and 175;
transition 20; institution building and 3, political 108; reconciliation and 106;
15; legitimacy and 22; Realpolitik and rhetoric and 108; vetting and 165
10; regime change and 3; sequencing Truth and Dignity Commission, the 42
and 223; socio-economic change and truth and reconciliation commissions:
19; transformational justice and 23; acknowledgement and 81; assignment
transformation and 23; trust and 3, 18; of responsibility and 104; in BiH 89; in
in Turkey 14; uses of 22 Brazil 317; in Chile 34, 99; corruption
transitional justice outcomes 73 of 64; creation of 102; criminal justice
transitional justice practices 73, 75 and 101–102; duration of tenure of 104;
transitional justice processes: in Ecuador 102; in El Salvador 34, 103,
acknowledgement and 4; art and 241; 104, 124; forgiveness and 100; gender
controversy of 291; criticisms of 225; perspective of 81–82; in Guatemala
DDR programs and 232; democracy 102; history of 98–101; human rights
and 17; exclusivity of 3–4; gender organisations and 105; human rights
sensitivity of 74, 92; inclusivity of 3–4, violations and 101, 103; legal analysis
12; memorials as 269; the past and 15; of 117; mandate of 116; memorials
prudence of 12; reparations and 203; and 271; non-judicial impact of 114;
restorative measures and 4; study of overburdening of 315; peace building
success of 305; the ‘third wave’ and and 222–223; reparations and 19, 80,
34–35 104, 105, 203; SCSL and 65; selection
transitional justice projects 73 of members of 102–103; sequencing and
368 INDEX

223; in Sierra Leone 64; socio-economic United Nations Sustainable Development

rights violations and 315; spillover Goals (SDG) 9
effect of 14; starting of work of 103–104; United Nations Transitional Administration
study of success of 298; symbolic for East Timor (UNTAET) 228–229
reparations and 243; the ‘third wave’ United Nations Updated Set of Principles
and 29; transformative reparations and to Combat Impunity 319
326; trust and 11; in Tunisia 315; in United Nations Women, Peace and
Uganda 104; in Uruguay 34; victim Security agenda 76
participation in 298; victims and 105 United States, the 35
truth recovery 141 Universal Declaration of Human Rights,
Tsai, Lily L. 338 the 31
Tual Sleng Genocide Museum 272 universal jurisdiction: defined 40, 128;
Tunisia 42 the ICC and 55; Pinochet and 40,
Turkey 32–33 128; Spanish Union of Progressive
Tutu, Archbishop Desmond 110, 139 Prosecutors and 40
Uruguay: Amnesty International report on
ubuntu 139, 296 101; amnesty laws in 33, 100–101, 133;
Uganda: amnesty law in 182; civil war in truth and reconciliation commissions in
182; ICC and 182, 184; investigation of 34, 100
LRA and 37; local transitional justice in US Civil War, the 30
171, 182–184 Uvin, Peter 233
Ukraine 164
Ukrainian Constitutional Court 164 Vázquez, Tábare 101
United Nations, the 1, 35 Velásquez, Manfredo 133
United Nations General Assembly, the 9 vengeance 17
United Nations High Commissioner for vetting: the Arab Spring and 151; benefits
Human Rights 140, 235 of 154; in Central and Eastern Europe
United Nations Mission in Sierra Leone 151; controversies of 156; cost of 291;
(UNAMSIL) 231 defined 150; democratisation and 156,
United Nations Office of the High 157; in El Salvador 162–163; épuration
Commissioner for Human Rights and criblage and 151; essentiality of
(OHCHR) 113, 153, 232 163; guarantees of non-recurrence and
United Nations resolution 1325 (UNSCR 319; guilt and 157, 164; history of
1325) 76, 81 151–154; human rights violations and
United Nations Secretary General’s Report 151; justice and 156; lost expertise and
on the Rule of Law and Transitional 158; in the Middle East 151; in Northern
Justice in Conflict and Post-Conflict Africa 151; OHCHR and 153; the past
Societies 80 and 161; the public sector and 151;
United Nations Security Council, the 52, reconciliation and 157; regime change
53, 54, 220 and 154; rule of law and 153; study of
United Nations Special Rapporteur 140, success of 299; trust and 150, 154–155;
314, 315, 318 truth and 165; in Western Europe 151
United Nations Special Rapporteur for vicarious traumatisation 338
Violence against Women 325n81 victim-centred justice 80
United Nations Special Rapporteur victimhood 204
on the Promotion of Truth, Justice, victim rights 199n14
Reparation and Guarantees of Non- victims: defined 204; as focus of TJ 272–273;
Recurrence 319 of human rights violations 2, 193, 294;
 INDEX 369

identification of 204; legal status of statutes of limitation and 129; of the

202; memorials and 270; participation Ugandan military 182
of in truth and reconciliation War Crimes Chamber of Bosnia’s State
commissions 298; perpetrators and Court 87
284; retraumatisation of 340; truth and war criminals 2
reconciliation commissions and 105 War Guilt Clause, the 30
Victims’ Law (Colombian Law 1448): War in Bosnia, the 62
Basic Principles and 212; gender Weber, Max 336–337
and 213; reparations and 211–213; Weinstein, Harvey 61
restitution and 213; transformative Wilkins, Ruth 341
reparations and 326–327 Williams, Patricia 346
victims’ rights 201, 202 Williams, Timothy 241n1
Vienna Convention on the Law of Treaties, Wilson, Richard Ashby 58
the 130 Winter, Stephen 12, 21, 22
Vienna Declaration and Programme women 74, 84–85
of Action Adopted by the World women’s rights 76, 85
Conference on Human Rights in Vienna women’s rights activists 77
(Vienna Declaration), the 313 Woodhead, Leslie 276
Vietnam Veterans Memorial 273, 284 World Development Report on Conflict,
Vilina Vlas Hotel 89 Security and Development 9–10
Vinjamuri, Leslie 57–58 World War I 30, 134
violence 106
von Hagenbach, Peter 51 Yanukovych, Viktor 164
Yatsenyuk, Arseniy 164
Wagner, Sarah 278–279 Yemen 42
Waldorf, Lars 209, 228 Yezidis 79
Walker, Margaret Urban 243, 324n78 Yugoslavia 58–59, 60, 62
war crimes: amnesty laws and 130; in Yuyanapaq: Para Recordar 257
Colombia 129; in the former Yugoslavia
248, 249; France and 129; the Geneva Zapperi, Giovanna 246
Conventions and 131; in Indonesia 227; Žbanić, Jasmila 86