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Analyzing Resistance to Transitional Justice

What Can We Learn from Hybridity?

Briony Jones

A focus on understanding and managing the reactions of affected populations has led to hybridity’s being an important part of the discussions about, and applications of, transitional justice. However, despite the presence of “resistance” as a component in theories of hybrid peace, there is limited in-depth theoretical or empirical work on resistance to transitional justice. Th e content of this article addresses this gap in two main ways. First, it asks what we can learn from theories of hybrid peace about resistance to transitional justice. Second, it proposes a particular approach to resistance that would allow for a more dynamic and ultimately more useful understanding of resistance to transitional justice. Th e argument presented here states not only that we must seek to understand the nature of resistance as a part of hybridity, but we must do so by analyzing the relational process through which acts come to be defined as resistance.

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Corinna Mullin and Ian Patel

Th is article discusses the politics of “transition” in Tunisia and locates Tunisia’s post-uprising justice initiatives within existing critical literature on global liberal governance and transitional justice. Methodologically, it treats transitional justice as a site of contestation, involving the exercise of domestic and transnational strategies of power as well as the oft en subversive agency of former and ongoing victims of state crime. By examining noninstitutionalized forms of contestation, this article seeks to understand and contextualize the fears expressed by some victims that the formal transitional justice process may be a diversion from, rather than bridge to, revolutionary aims.

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Using International Criminal Law to Resist Transitional Justice

Legal Rupture in the Extraordinary Chambers in the Courts of Cambodia

Mikael Baaz and Mona Lilja

An increasing body of literature focuses on negotiations of transitional justice, but not much has been written so far regarding contestations over its practices and the refusal of states and individuals to participate. Given the remaining legalistic dominance, this is particularly true regarding the field of international criminal law. Very little, if any, work in international criminal law engages with the topic of “resistance.” Departing from this gap in research, focusing on Cambodia and the Extraordinary Chambers in the Courts of Cambodia (ECCC), the objective of this article is to introduce, discuss, and analyze the “strategy of rupture”—as developed by the late French lawyer Jacques Vergès—and the ways in which this legal defense has been applied in practice at the ECCC in order to resist not only the Tribunal per se, but also the entire Cambodian transitional justice process and, by extension, the post–Cold War global liberal project.

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Patrick Lenta

The following paper is a discussion of justice as a sign in transition, a sign whose meanings in post-apartheid South Africa must be legitimated by appeal to conditions radically different from those that prevailed under apartheid. I wish to explore the nature of the transformation of justice from the context of apartheid to emergent postapartheid conditions and to do so by focusing on the Truth and Reconciliation Commission (the TRC) as an example of what can be called ‘transitional justice’. A common view of the TRC is that its rules for the implementation of amnesty and other related matters should be evaluated in the light of ‘ideal types’ of justice. The TRC must fall short of such ideal types, since its offer of qualified amnesty to perpetrators of gross human rights violations in exchange for complete honesty about such violations will be understood as an exigency which dispenses with a crucial feature of justice, namely retribution.

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Perspectives from the Ground

Colonial Bureaucratic Violence, Identity, and Transitional Justice in Canada

Jaymelee J. Kim

While traditionally underrepresented in transitional justice studies, anthropological study of culture, ethnography, and processes can contribute valuable insight into colonial bureaucracies and dynamics of power. This article uses an ethnographic approach and a colonial bureaucratic violence theoretical foundation to analyze negative perceptions of transitional justice at the ground level. Participants included facilitators, government officials, nonprofit organizations, and Indigenous community members; research occurred during implementation of transitional justice (2011–2014) for a period of 12 months. Specifically, I argue that the relationship between transitional justice and colonial bureaucratic violence encourages negative views of transitional justice. Instead, ethnographic data first reveals that bureaucratic processes within transitional justice challenge Indigenous identities. Second, Indigenous survivors in British Columbia, Canada, largely view transitional justice on a continuum of colonial bureaucratic violence. Using a colonial bureaucratic violence framework, this article provides insight and nuance into perceptions of transitional justice at the local level.

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Adopting a Resistance Lens

An Exploration of Power and Legitimacy in Transitional Justice

Julie Bernath and Sandra Rubli

Drawing from the critical scholarship on transitional justice and from studies of resistance, this article brings together different observations of resistance, including different sets of actors, forms and motives of resistance, and analyzes their implications for power and legitimacy in contexts of transition. The article argues that the analytical value of resistance lies in the original vantage point it provides for an engagement with questions of power and legitimacy that inform transitional justice processes, but that are often difficult to identify on an empirical level. In doing so, it proposes a “resistance lens,” that is, an explicit focus on resistance that is based on a relational understanding to resistance, in order to move beyond simplistic conceptions of resistance in transitional justice scholarship that mainly approach resistance as resulting from a lack of political will of the powerful elite to implement supposedly universal transitional justice models.

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Perpetrators and victims

Local responses to the International Criminal Tribunal for the former Yugoslavia

Johanna Mannergren Selimovic

This article juxtaposes local understandings and narratives on justice and reconciliation in Bosnia and Herzegovina with those of the International Criminal Tribunal for the former Yugoslavia (ICTY). By looking at notions of collective innocence/guilt, the development of victim identities, and the relativization of the suffering of the other, it explores the failure of the ICTY to offer a convincing model of transitional justice in Bosnia. Although the ICTY disciplines the boundary between victim and perpetrator through measures for shared truth and individual justice, local discourses resist or transform these representations, thus tending to entrench rather than transcend national divisions. The findings of this article challenge prevalent instrumentalist understandings of transitional justice and its role in facilitating reconciliation. The article focuses on the communities of Konjic and Srebrenica and the ICTY outreach conferences held in these towns in 2004 and 2005.

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Space of Hope for Lebanon’s Missing

Promoting Transitional Justice through a Digital Memorial

Erik Van Ommering and Reem el Soussi

This article explores how a digital memorial for forcibly disappeared persons contributes to transitional justice in Lebanon. It presents the joint establishment of an interactive digital memorial by a collective of nongovernmental organizations, relatives of missing persons, and youth volunteers. The case study is situated in debates on transitional justice, calls for democratization of collective memories and archives, and discussions on new information and communication technologies. The article demonstrates how the development and launch of Fushat Amal (Space for Hope) is shaped and confined by postwar sociopolitical realities that are all but favorable to memorialization or justice-seeking initiatives. It highlights how digitalized memories can open up spaces that remain closed in the offline world, enabling survivors to share their stories, build collectives, demand recognition, and advocate for justice. At the same time, the authors discuss the limitations of digital memorials in relation to questions of access, ownership, and sustainability.

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Democratization of Perpetration

Human Rights, Transitional Justice, and Memories of Resistance in Post-Conflict Timor-Leste

Amy Rothschild

This article examines the effects of human rights and transitional justice on memories of Timor-Leste’s resistance to the Indonesian occupation, which lasted from 1975 to 1999. Data comes from ethnographic fieldwork in Timor, centered around remembrance of two major acts of resistance: an armed uprising in 1983 and a peaceful demonstration in 1991. The article argues that in Timor, an “apolitical” human rights has caused a post-conflict “democratization of perpetration”, in that similar culpability is assigned to all those who caused suffering in the conflict with Indonesia through physical violence, irrespective of context. Transitional justice has thus expanded the category of perpetrator in Timor, to include some who legally used armed resistance against Indonesian rule. Studies of violence have belatedly turned toward examining perpetrators of state terror; this article examines how discourses of human rights and transitional justice shape perceptions of those who resist state terror with violence.

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Returning to the Source

Revisiting Arendtian Forgiveness in the Politics of Reconciliation

Sam Grey

The idea of forgiveness is omnipresent in the transitional justice literature, yet this body of work, taken as a whole, is marked by conceptual, terminological and argumentative imprecision. Equivocation is common, glossing moral, theological, therapeutic and legal considerations, while arguments proceed from political, apolitical and even antipolitical premises. With forgiveness as a praxis linked to reconciliation processes in at least ten countries, concerns have grown over its negative implications for the relationship between the state and victims of state-authored injustices. Many of these debates reference Hannah Arendt. Drawing from a range of Arendt’s published and unpublished work, this article challenges the academic claim that forgiveness has no place in the politics of reconciliation. Through this ‘returning to the source’, it presents a promising mode of thinking about political forgiveness in contemporary Settler-colonial states.