This article is part of the Democracy Futures series, a joint global initiative with the Sydney Democracy Network. The project aims to stimulate fresh thinking about the many challenges facing democracies in the 21st century.
“Transitional justice” for societies emerging from periods of war, dictatorship or atrocity has become something of a buzz term within international law and policy circles.
Since the 1990s countless experiments, from Latin America to Eastern Europe, Africa to Asia, have been designed to deliver justice and help with peace-building and democratisation. The international criminal tribunals for Rwanda and the former Yugoslavia are the most famous (and costly) examples. But what do we hope to achieve with these institutions?
According to their advocates, they are a means of ensuring accountability and redress to populations ravaged by conflict and violence. This, they assert, also promotes peace (recall the adage, “no peace without justice”).
Not only does a legal process allow marginalised groups the possibility of being heard – thus empowering them – it also provides a model for the development of local institutions that are better capable of promoting democracy and the rule of law.
These benefits appear to have convinced many within the non-governmental world, the United Nations system and government aid agencies. Ever-greater resources are being invested in transitional justice processes.
Criticisms also abound. These focus largely on the realities of past and present geopolitical inequality (colonialism in the past, neocolonialism in the present), the inability of legal institutions to respond to widespread structural problems (particularly economic) and the violence of the law, which all too often relies on silencing and exclusion.
How, critics argue, can “top-down” legal institutions genuinely deliver empowerment? Don’t they just create new reliance on elite “experts” and replace politics with models of bureaucratic governance?
After a decade working in the field of transitional justice, in four post-conflict sites – Sierra Leone, Kosovo, Nepal and Sri Lanka – I am sympathetic to these critiques. I am also struck by the highly abstract ways in which both advocates and critics of transitional justice make their arguments. Few have delved into how people in such places actually feel about and experience transitional justice.
How are we to understand why people in different parts of the world continue to demand and participate in transitional justice institutions and processes in spite of the shortcomings?
Extremely marginalised sections of the population have mobilised in a variety of settings to demand recognition and accountability and to participate. Examples range from survivors of sexual violence in Bosnia who attended the International Criminal Tribunal for the former Yugoslavia in The Hague back in the 1990s through to women’s collectives in northeastern Sri Lanka who presented submissions to the national Public Representations Committee on Constitutional Reform in 2016.
This can be (and has often been) interpreted as evidence of their desperation. Otherwise, it is argued that perhaps their naivety or a sort of false consciousness allows for their co-option and continued domination.
In the case of the Bosnian survivors, studies have documented their disappointment following their experiences in The Hague. This may support a reading of (misplaced) optimism.
However, I want to suggest some other explanations. To do this I offer two examples.
In 2006, fresh from working on the global Stop Violence Against Women campaign at Amnesty International, I went to work as a trial monitor at the Special Court for Sierra Leone. International feminists and human rights lawyers lauded the court for the serious stand it was taking on prosecuting crimes committed against women during the nation’s civil war.
I was particularly interested in the prosecutions for forced marriage. On the one hand, these were said to reflect a commitment by the court to respond to victims’ experiences of violation. On the other, as a feminist, I was curious to see how the court would define “marriage”.
As it turns out, the court adopted an extremely conservative definition. In trying to explain the difference between forced marriage in war and arranged marriage in times of peace, the court basically reinforced the rights of parents – in particular fathers – to determine suitable husbands and to demand a bride price in exchange for their daughters.
Many members of the local women’s rights and human rights community were horrified. They had lobbied the court hoping it would help their campaign to end forced and early arranged marriages. The court did the opposite, giving authority back to conservative local elites. I left Sierra Leone early, disgusted and thoroughly disillusioned with the project of transitional justice.
In 2011 I returned to Sierra Leone to explore the legacy of the Special Court for women’s human rights. I was prepared for the worst. But then I was faced with a surprise.
In an interview, the chairwoman of the Women’s Forum (a nationwide coalition of women’s rights activists) told me the court had been very helpful in their campaigning against forced early marriage. She explained:
We tell them this is against international law, the Special Court says it is wrong.
When I tried to explain that this was not what the judgment said, she gave me a long, patient and pitying look. It became clear that she and other activists had not read it, nor they did not feel it was necessary to read it.
This was not due to ignorance. Rather, it was a strategic choice not to waste their time and energy. The power was in the message that there had even been an international court that had looked at “gender issues” and convicted people. This was sufficient symbolic backing for women in their communities.
As I spoke to more women in different parts of the country, I saw the various ways in which the existence of the court and its prosecutions for gender-based violence opened up a new space that simply did not otherwise exist for women’s rights activists.
The disempowering nature of the court’s internal processes did not diminish the creative and strategic ways in which local actors drew on the court’s symbolic power to add weight and legitimacy to their own cause.
I began to realise the bias that many of us working on transitional justice had. We assumed the only places that mattered in terms of assessing transitional justice were the formal institutions, and that the only voices that mattered were the legal experts. In the process, we were feeding the very issues we criticised: the elite-driven, institution-focused, exclusionary practices of transitional justice.
What would happen if we started to explore the impact of transitional justice outside courtrooms, parliaments and bureaucratic institutions? Might transitional justice lead another life, be contributing to struggles for social justice in another way?
I was struck by how the Sierra Leonean activists had managed to turn the court and its message into a tool that could be used in their struggle. They subverted its original, intended or actual message in an act of resistance and empowerment that, to my mind, requires our recognition even as we demand better from institutions.
In May 2009, Sri Lanka’s decades-long civil war ended with the destruction of Tamil separatist movement, the Liberation Tigers of Tamil Eelam (LTTE). Since then, international and domestic initiatives have aimed to assist Sri Lanka’s “transition” towards a peaceful, more democratic society that can come to terms with its violent past and manage the realities of its multi-ethnic population in the future.
After repeated commissions of inquiry and human rights investigations dating back to the 1990s, one could understand a degree of scepticism about the latest round of transitional justice initiatives.
And yet, when visiting a women’s collective in the war-ravaged town of Mullaitivu in north-eastern Sri Lanka, I was told its members had participated in recent public consultations on reforming the constitution. It had been a long day in a very hot room, so people were eager to head home. But, when I asked, casually as I was leaving, why they had chosen to participate and how, a new energy entered the room.
Suddenly, I was surrounded by multiple women speaking at once. Eyes shining, they were keen to share their experiences while my slightly harried interpreter translated. They told me:
It’s always men. [There is] no-one to talk about our issues, so we thought we should go and talk about our issues. And when a lot of women came to speak about their issues it added pressure.
They were realistic about what they expected from the process:
Whether the government accepts our submissions or not we don’t know, but we wanted to prove that we women went and made a submission. So it is there in the history.
Their responses offered an array of rationales for participating: they wanted to contribute to the emergent official discourse, to overcome the limits of their local (patriarchal) community and of the elitist civil society that too often spoke for them in disempowering and inaccurate ways.
Their actions were not free of risk: one of the women who spoke for the group faced an extremely difficult time with her husband afterwards. And yet all expressed great satisfaction at having done it. It gave them confidence and a feeling of political power. All of them told me they would do it again.
While many of us may doubt the effectiveness of these processes in improving democracy and justice, these women certainly felt that this was an important opportunity for them to be heard.
Pay heed to how survivors use transitional justice
For this reason I think we need to revisit the question of what transitional justice offers to survivors of war, authoritarianism and atrocity.
We are right to be sceptical of some of the claims made by advocates sitting in Geneva or New York. However, we should not allow our critiques of the macro political situation to overshadow our ability to see what marginalised populations around the world actually do with transitional justice mechanisms and processes.
In Sierra Leone, regardless of the effectiveness of formal legal measures, there has undoubtedly been a shift in local consciousness and public debate. This was achieved not through the outreach activities of formal actors but through the appropriation of legal norms – albeit in a strategic and sometimes subversive way – by local social actors.
Meanwhile, in Sri Lanka, despite a highly restrictive and authoritarian environment, individuals flock to the quasi-judicial bodies of commissions of inquiry to voice their grievances and make claims for justice.
To treat these actions as merely the pathetic acts of desperate individuals is, I think, to do a disservice to their courage and agency. Given Sri Lanka’s modern history and the lack of tangible outcomes from earlier commissions, I do not see these individual actions as simply reflecting a naïve belief in the system.
Instead, I think we need to focus on how we might approach these engagements by oppressed and marginalised peoples with transitional justice institutions.
While we cannot ignore the hierarchical and often highly exclusionary and oppressive ways in which such institutions are structured, we must also be attentive to the strategic (and sometimes subversive) acts of agency by these oppressed and so-called desperate groups.