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ARTICLES
How Power Dynamics Influence the “North-South” Gap in
Transitional Justice
Laurel E. Fletcher and Harvey
M. Weinstein
“North-South” Dialogue: Bridging the Gap in Transitional Justice
Workshop Transcript
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BERKELEY JOURNAL OF
INTERNATIONAL LAW
VOLUME 37 2018 NUMBER 1
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BERKELEY JOURNAL OF
INTERNATIONAL LAW
VOLUME 37 2018 NUMBER 1
CONTENTS
HOW POWER DYNAMICS INFLUENCE THE “NORTH-SOUTH” GAP IN TRANSITIONAL JUSTICE
Laurel E. Fletcher and Harvey M. Weinstein................................................................................................1
“NORTH-SOUTH” DIALOGUE: BRIDGING THE GAP IN TRANSITIONAL JUSTICE
Workshop Transcript....................................................................................................................................29
BERKELEY JOURNAL OF
INTERNATIONAL LAW
VOLUME 37 2018 NUMBER 1
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1
How Power Dynamics Influence the “North-
South” Gap in Transitional Justice
Introductory Essay by Laurel E. Fletcher and Harvey M.
Weinstein
*
INTRODUCTION ............................................................................................. 2!
I. WORKSHOP FORMAT ................................................................................. 5!
II. WHAT DID WE LEARN? ........................................................................... 5!
A.! Dynamics of Colonialism in Transitional Justice
Interventions ............................................................................ 6!
1.! Collective Memory and Legacies of Colonialism .............. 8!
2.! Collective Amnesia and International Transitional Justice
Interventions ...................................................................... 9!
B.! Dynamics of the Legalization of Transitional Justice ............ 10!
1.! The Legal Framework of Transitional Justice and the
Politics It Promotes ......................................................... 11!
2.! The Politics of Social Justice as Transitional Justice ..... 14!
C.! Dynamics of Research Extraction .......................................... 16!
1.! North-Based Researchers, South-Based Sites ................. 17!
2.! Extractive Pressures on North-Based Research .............. 19!
3.! South-Based Researcher-Practitioner Dynamics ............ 21!
D.! Funding Dynamics ................................................................. 22!
1.! Funding Top-Down Priorities ......................................... 22!
DOI: https://doi.org/10.15779/Z38QN5ZB61.
* Laurel E Fletcher is Clinical Professor of Law, University of California, Berkeley,
[email protected]ley.edu; Harvey M Weinstein is Senior Research Fellow, Human Rights Center,
University of California, Berkeley and a retired Clinical Professor, School of Public Health,
[email protected]. The order of authors is alphabetical. The authors would like to thank the
members of the Steering Committee for and the participants in the workshop giving rise to this
publication, North-South Dialogue: Bridging the Gap in Transitional Justice, for dedicating their
considerable energies and talents to this effort to think together about how to address current troubling
dynamics in the field and for their valuable feedback. We also thank Mark Drumbl and the participants
of the 2018 ISA conference for helpful comments on an earlier draft of this essay. We are grateful to
Katrina Natale for her research support and to Olivia Layug Balbarin for preparing the transcript. Any
remaining errors are our own.
2 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
2.! Funding Interventions vs. Funding Structural Changes . 23!
3.! The Dilemma of South-Based Grantees .......................... 24!
4.! Funding Reparations ....................................................... 25!
III. WHAT’S NEXT? ..................................................................................... 26!
CONCLUSION .............................................................................................. 28!
INTRODUCTION
Transitional justice is an area of inquiry, a set of practices, a form of politics,
a career, and/or a source of hope and disappointment, to name a few of its facets.
Centered on the idea that in the aftermath of mass violence or periods of
repression, societies need to undergo processes to address past harm to ensure a
peaceful future, transitional justice unabashedly offers itself as a moral project, a
ritual cleanse. A community of interested actors—advocates, funders, policy
makers, practitioners, scholars, and victims—is invested in its success. Although
how success is defined varies with how the actor interprets the events that trigger
a transitional justice response. While stakeholders are essentially in agreement
around fundamental questions of goals and tactics, the “community” is not static.
Critiques of transitional justice abound within the community, generally focused
on shortcomings in theory and practice.
An important part of the critique has been that transitional justice as now
conceived is top-down, formulaic, overly focused on international criminal
prosecutions, limited to civil and political rights, and, in the worst case, nothing
but a shill for global capitalist expansion. In response, there have been calls for a
transitional justice that is bottom-up; transformative; economic, social, and
cultural rights-focused; and responsive to corporate complicity and to structural
inequities. In turn, critics who think transitional justice continues to overpromise
and overreach question this expansive agenda. Concerns are raised about a move
away from an accountability-focused agenda toward interventions that are
development-focused or even nation-building.
The extent to which advocates and victims have succeeded in making victims
a central focus of transitional justice does not appear to have brought satisfaction
to victims nor to their advocates. Disquiet remains. The gap between the ideal and
the reality is brought into sharp relief when attitudes towards these processes are
examined through a prism of the relationships between the so-called “Global
North” and “Global South.” However, even then, there is a more fundamental set
of issues at play; we suggest that there needs to be a forthright conversation about
the internal power and social dynamics within the transitional justice community
that shape the field. These include but go beyond the North-South gap. In
particular, there is no internal dialogue about the ways in which geo-political and
other power dynamics play out in this space. In response to this concern, we
gathered together a diverse group to begin this discussion at a workshop in March
2017 at Berkeley Law titled, “North-South Dialogue: Bridging the Gap in
Transitional Justice” (the “Workshop”).
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 3
Generally, only outside of the published literature and professional
conferences do transitional justice stakeholders talk candidly and express
misgivings about the ways in which they and other constituencies within the
community conduct their activities. We are not referring to professional grousing
or petty politics inherent in any field. The misgivings to which we refer have a
wider dimension to them. Those who are working in or with communities in
which transitional justice interventions are contemplated or implemented—the
Global South—are frustrated at how they are treated by international researchers,
funders, and policy makers from wealthy countries—the Global North. Our
objective was to initiate a conversation about this North-South gap. We
understand the terms “Global North” and “Global South” to be a convenient, if
reductive, shorthand for the fact that the major funders, policy makers, and
researchers working on transitional justice mostly are based in Australia, North
America, and Western Europe, while the sites of transitional justice practice
generally are found in Africa, Asia, and Latin America.
1
We aimed to narrow this divide by increasing communication among
advocates, practitioners, scholars, and funders working in various regions. We
wondered what ideas and exchanges might be generated by bringing “North” and
“South” transitional justice practitioners and researchers together. Our
conversation sought to peel back the cover on this dynamic and to have a candid
conversation about what David Kennedy has called “the dark side” of human
rights, which is equally applicable to transitional justice.
2
We hoped that the
Workshop would serve not only to identify some “lessons learned” in transitional
justice praxis to date, but might also help to enrich the way in which participants
– both scholars and practitioners – theorize transitional justice as a concept and
framework for action. Would such a dialogue lead to more innovative ways of
thinking about what transitional justice can accomplish and/or lead to other forms
of intervention?
We also hoped that the meeting might serve as a forum to explore how to
create sustainable platforms for on-going dialogue among geographically diverse
transitional justice scholars, advocates, and practitioners. The field has its own
specialty journal, listserv, and formal and informal regional networks. However,
1
Eastern European countries have initiated processes to respond to the widespread human rights
violations committed by authorities during the Soviet era. National researchers have studied these
efforts but because little of this work appears in English, unfortunately, it is often overlooked in
mainstream, international discussions. Exceptions to this pattern include Roman David, Lustration
Laws in Action: The Motives and Evaluation of Lustration Policy in the Czech Republic and Poland
(1989-2001), 28 L. & SOC. INQUIRY 387 (2003); ENCYCLOPEDIA OF TRANSITIONAL JUSTICE (Lavinia
Stan & Nadya Nedelsky eds., 2013); and Nanci Adler, Reconciliation with – or Rehabilitation of – the
Soviet Past?, 5 MEMORY STUD. 327 (2012). Furthermore, we acknowledge that the concepts of Global
“South” and “North” are an accurate geopolitical representation, but can also serve as a shorthand to
refer to concentrations of inequitable distribution of power and material resources. Thus, there are
pockets of the “South” (e.g., marginalized communities) found within the “North,” and similarly
enclaves of the “North” (e.g., elites) within the “South” (e.g., rural communities).
2
David Kennedy, The International Human Rights Movement: Part of the Problem?, 15 HARV.
HUM. RTS. J. 101 (2002).
4 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
there is no umbrella organization to facilitate the face-to-face dialogue and open
exchange of ideas required to overcome the gap in knowledge between South and
North. As the work of scholars writing in the Global South has been relatively
less visible in international discussions of transitional justice, there has been little
dialogue across language barriers either through meetings or scholarly exchange.
Those with resources to travel and who publish regularly (especially in English)
dominate the field.
3
We had entertained the idea of the creation of an international
association of transitional justice scholars and practitioners, and bringing together
a smaller cross section of the community could be a way to test the concept.
Informed by these ideas as a foundation, the meeting was the culmination of
months of planning by a core group of scholars and practitioners based in the
Global North and South. We sought to bring together in a small international
meeting, scholars who have studied transitional justice from a variety of
disciplines, employed a variety of methodologies, and who might offer a rich
academic contribution, as well as practitioners whose experiences in different
countries, with different mechanisms, and whose engagement with different
sectors could provide a comprehensive experiential basis from which to
interrogate scholarly contributions. Our focus was on cultivation of a two-way
dialogue.
The irony of two North-based academics initiating a conversation about the
ways in which “our” engagement is problematic to colleagues in the South is not
lost on us. It would have been better if the meeting could have taken place in the
Global South; it would have been better if co-conveners were South-based.
Access to resources—time, funding, networks—needed to pull off an
international meeting is not equally distributed. As North-based academics, we
have the privilege of salaried positions that allow us to devote the time to
organizing the meeting. Practitioner-colleagues based in the South rely on grant
funding and it was not fair or feasible to expect them to carry the administrative
and financial responsibility for an initial meeting. We formed a committee with a
balance of North- and South-based colleagues to provide input into the meeting
structure and to guard against replicating the power dynamics in the field that we
sought to disrupt. This was a modest beginning. Developing an organizational and
financial structure that enables South-based leadership in future efforts remains
unfinished business.
3
Laurel E. Fletcher & Harvey M. Weinstein, Writing Transitional Justice: An Empirical
Evaluation of Transitional Justice Scholarship in Academic Journals, 7 J. HUM. RTS. PRAC. 177, 183
(2015) (finding that of a sample of 486 transitional justice articles published between the years 2003
to 2008, 89% were written in English, 5% in French, 4% in Spanish, and 2% in German). The lead
journal in the field, the International Journal of Transitional Justice, is moving to increase publication
opportunities for authors writing in Spanish. Spanish language-manuscripts that are accepted will be
translated into English for publication. The editors are working with the Oxford University Press to
enable publication in Spanish as well.
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 5
I.
WORKSHOP FORMAT
Twenty-five participants attended this Workshop from all major regions of
the globe and comprised of a mix of academics and practitioners. Pablo de Greiff,
UN Special Rapporteur on the right to truth, justice, reparations and guarantees of
non-recurrence delivered the keynote address. We organized our discussion
around a series of panels, each exploring a particular dimension of transitional
justice. Panelists were asked to act as “animateurs,” that is, to put forth some ideas
about the question addressed from their own perspectives and experience, and to
provoke discussion among all the participants. We made a deliberate decision not
to have formal papers, as this format tends to narrow discussion and privileges
academic voices over those of practitioners.
There were four panels organized around the following questions:
• Is there a North/South gap in understandings and beliefs about what
transitional justice is and what it can do?
• In the evolution of transitional justice, what has been the
contribution of various disciplines to the transitional justice
framework?
• What has been the relationship among transitional justice research,
policy advocacy, and practice?
• Based on 30 years of research and experience, what is it that we
should be doing in response to mass violence?
II.
WHAT DID WE LEARN?
The pages that follow contain an edited transcript of the day’s proceedings.
Readers interested in how the conversation developed and how ideas introduced
earlier in the day morphed or were reinterpreted by subsequent participants will
be aided by the preservation of this archive. Here we offer our synthesis of the
recurrent dynamics that emerged from the conversation, informed by our
experience in the field: 1) colonialism and its legacies in the field of transitional
justice; 2) the politics of transitional justice and how the field frames decisions
about how transitional justice is implemented; 3) characteristics of the
practitioner-academic relationship as mediated through the North-South prism
such that most researchers are from the North and research subjects are in the
South; and 4) the dynamics of North-based funding, through which the needs and
priorities of victims and their advocates are mediated or distorted and which
influence the kind of research that is carried out, as well as the transitional justice
strategies that are employed.
Two underlying themes emerged as critical to our discussion: first, North-
based attention to the legacies of colonialism and North-based transitional justice
interventions are perceived as hypocritical by many in the Global South.
6 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
Workshop participants surfaced this feeling of hypocrisy, how it colors attitudes
of communities in the Global South, leading to suspicion and rejection of
transitional justice. A second theme emerged around questions of ownership: Who
owns transitional justice and its implementation? Is transitional justice driven by
the international community, domestic elites, local practitioners or some coalition
formed from these and other constituencies? This theme reflects a lack of power
or constrained agency felt by recipients of North-based transitional justice
concepts and strategies.
These themes and dynamics illuminate some of the drivers of the North-
South friction in transitional justice.
4
A. Dynamics of Colonialism in Transitional Justice Interventions
A refrain that runs through the Workshop discussion centers on the
maldistribution of power and particularly how the legacies of colonialism
5
—on
former colonizers and the formerly colonized alike—affect transitional justice
work. International transitional justice initiatives frequently play out against the
legacy of colonialism as a political backdrop. States in the South targeted for
transitional justice interventions by international actors may resist such efforts as
being part of a neo-colonial project. Anthropologists have increasingly taken the
perspective that colonialism is “a struggle that constantly renegotiates the balance
of domination and resistance.”
6
This latter perspective underlies the suspicions
and resistance that fuel antipathy towards Western-based international
institutions. For example, the Government of Kenya undermined the International
Criminal Court’s (ICC) prosecutions of its President and Vice President based on
such arguments and the African Union resisted collaboration with the ICC on the
4
We identified these dynamics based on our interpretation of the discussion and our experience as
transitional justice researchers and practitioners and they necessarily reflect our perspective on the
proceedings. We undoubtedly have blind spots as to the ways in which our experience as North-based
academics affects our interpretive lens. While this analysis does not necessarily reflect a consensus
among all participants, we circulated an earlier draft to Workshop participants and sought to address
the feedback we received. All errors and omissions in the final version are our own.
5
Colonialism has been defined as “a practice of domination which involves the subjugation of one
people to another and the political and economic control of a dependent territory (or parts of it).” Lea
Ypi, What’s Wrong with Colonialism, 41 PHIL. & PUB. AFF. 158, 162 (2013) (internal citations
omitted). See also, Margaret Kohn & Kavita Reddy, Colonialism, in STANFORD ENCYCLOPEDIA OF
PHILOSOPHY (Edward N. Zalta ed., Fall ed. 2017),
https://plato.stanford.edu/archives/fall2017/entries/colonialism/. Writers have described the effects of
colonialism from various perspectives including from philosophy and post-colonial studies. FRANTZ
FANON, THE WRETCHED OF THE EARTH (Richard Philcox, trans., 2004); PAOLO FRIERE, THE
PEDAGOGY OF THE OPPRESSED (Myra Bergman Ramos trans., 30th Anniversary ed. 2001); MAHMOOD
MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND THE LEGACY OF LATE
COLONIALISM (1996) (sociopolitical analysis); AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999)
(development). Adam Hochschild has etched the horrors of Belgium’s colonial grip on Congo in KING
LEOPOLD’S GHOST: A STORY OF GREED, TERROR, AND HEROISM IN COLONIAL AFRICA (1999).
6
Peter Pels, The Anthropology of Colonialism: Culture, History, and the Emergence of Western
Governmentality, 26 ANN. REV. ANTHROPOLOGY 163 (1997).
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 7
same basis: the ICC focus on African countries reflects the ongoing imperialist
attitudes of the international justice regime.
7
The invocation of colonialism to shield political leaders from international
intervention is not just a cynical manipulation of history. It is also a strategy to
forge national unity within a population for which another legacy of colonial rule
is that the consolidation of national identity remains an active project. As
explained by one South-based participant:
In many African contexts, transitional justice is deeply embedded in two meta-
discourses: anti-colonialism and nation building. These world views (or ideological
frameworks) position transitional justice as a political process that ascribes to it a
role in promoting national dignity in the context of being a victim of historical
injustices and as a visionary goal of building a collective identity in a context of
deep ethnic divisions and a shallow collective civic allegiance to a central State.
(emphasis added)
Transitional justice activists—based in country as well as international
allies—see the instrumental use by domestic elites of the charge of “neo-
colonialism” as an excuse to avoid accountability and to confer impunity upon
wrongdoers. These activists are alert to the political manipulation of the colonial
legacy by authorities. Elites of a State that has inherited and adapted the
authoritarian governance structures that were left by the colonizers may use the
rubric of anti-colonialism as a cover for their own agenda, that is, to protect their
own positions of power.
8
But what do we make of the resistances to transitional justice that are found
among affected communities in the Global South (as opposed to political elites)
based on similar arguments? Superficially, the resistances to transitional justice
based on rejection of neo-colonialism appear similar between the South-based
political elites and the affected communities. Yet, colonialism’s legacy operates
differently based on who controls the levers of power. Our discussion pointed to
a more nuanced understanding of how South-based practitioners and scholars
perceive North-based interventions as a manifestation of neo-colonialism. This
view represents a critical component of the “gap” between the North and South.
It also confirms what we uncovered in our academic research as well as in the
informal field-based encounters and survey research that led to the Workshop
itself.
More significantly for our Workshop, North- and South-based transitional
justice researchers and practitioners discuss even less with each other the ways in
which colonialism’s legacy emerges in our work, and how it generates or
7
President and Commander in Chief of the Defence Forces of the Republic of Kenya Uhuru
Kenyatta, C.G.H., Speech by His Excellency at the Extraordinary Session of the Assembly of Heads
of State and Government of the African Union, Addis Ababa, Ethiopia (Oct. 12, 2013),
https://www.nation.co.ke/news/-Uhuru-stinging-attack-at-the-West-and-ICC--Speech/1056-
2029518-11b3ny0z/index.html.
8
William C. Johnstone, Legacies of Colonialism, 5 SAIS REV. INT’L AFF. 4 (1961).
8 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
contributes to ambivalence or resistance of South-based academics and
practitioners to external transitional justice actors and initiatives. Similarly, our
discussion revealed ways in which North-based academics and practitioners may
fail to challenge, and therefore unwittingly reinforce, this problematic dynamic.
One participant laid out the problem succinctly: “[T]ransitional justice seems to
depend on the ‘law of the strongest.’ And, nowadays, in the international arena,
what we call the ‘North’ or the ‘West’ … is the strongest.”
1. Collective Memory and Legacies of Colonialism
This linkage between transitional justice and a power differential seems to
reflect two dimensions. The first is the reality that former colonial powers in the
West (the Global North) continue to wield economic and international political
power in the Global South. The second dimension has to do with collective
memory and how it transmits and renews social memories of the violence and
historic oppression perpetrated by former colonizers. The term “collective
memory” was used first by sociologist, Maurice Halbwachs.
9
As Coser notes,
Halbwachs saw collective memory as a “socially constructed notion”
10
in which
“the past is stored and interpreted by social institutions.”
11
Whether it is termed
“social memory” or “historical memory,” the critical point is that while all of us
have our own memories of the past, there is a form of remembrance that lies
outside of individuals and is contained within the structures of society. It is a
group memory that endures.
The collective memory of the colonial enterprise surfaces in how transitional
justice is perceived in countries in the South. When the international community
supports criminal trials or truth commissions for a contemporary episode of mass
violence, local voices may legitimately ask: “What about the victims of colonial
crimes? When will the transitional justice process be applied to us/them? When
will the truth of colonial crimes be revealed and justice for that violence be
served?” For many, current approaches to transitional justice are less valid
because the colonial past is ignored. Thus, during the Workshop one participant
captured this sentiment as: “There is no gap between North and South in
understandings and beliefs about transitional justice, but there is a double
language and double standard built on the law of the strongest, and it is time
transitional justice serves to benefit all of the victims, including the victims of the
so-called North.”
It is important as well to differentiate the colonial era from the post-colonial.
Just as a short-term view of “transition” in the idea of transitional justice makes
little sense, so too is the idea of “post-colonialism” very limiting if focused solely
on the initial period after independence is gained. Collective memory is powerful
and the after effects of colonialism are far-reaching. In an early paper, William
9
MAURICE HALBWACHS, ON COLLECTIVE MEMORY (Lewis A. Coser ed. & trans., 1992).
10
Id. at 22.
11
Id. at 24.
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 9
Johnstone
12
described three legacies of colonialism: authoritarianism that
reflected the pre-colonial past, enhanced by the colonists and taken up by the
independence leaders; separatism in that the borders of the newly-independent
state were often devised in government offices far away with no conception of the
many different groups that dwelled within and whose loyalties were to an ethnic
or religious group, not to a central and unified state; and educational systems
maintained by the colonial power limited the education opportunities for the
indigenous inhabitants and relegated them to low-level positions.
A recent article by Bruce Gilley on the “beneficial” effects of colonization
provoked a storm of rage and ultimately was withdrawn because of threats of
violence.
13
Scholars debunked the paper citing economic, political, and
development arguments to refute the notion that colonialism was somehow a
positive factor in states that had been colonized. What appears left out of these
discussions are the psychological and social effects of colonization in “post-
colonial” societies and their ongoing presence in the collective memory of the
societies. The collective memory of colonization experiences—some factual,
some mythic—shapes the attitudes and reactions of those living in post-colonized
societies. As one participant from Asia expressed it: “Despite the mea culpa of
international organizations, academics, and global activists, transitional justice
interventions are still made mostly as foreign impositions on communities seen
and treated as savages.”
14
2. Collective Amnesia and International Transitional Justice
Interventions
Compounding this phenomenon is the amnesia that colonizing States exhibit
with respect to their own histories as colonizers, and their inability to confront the
current traces of those pasts. The history of imperialism makes States that were
the recipients of European and Asian ambitions for hegemony vulnerable to any
hint of “cultural imperialism.” Anabelle Sreberny describes a “‘hypodermic’
needle model of international effects, ‘American’ values being injected into Third
World hearts and minds.”
15
South-based transitional justice actors are affronted
when former colonizers find it hard to see that the transitional justice premise—
that societies need to face their tainted pasts—applies to them. Of particular
concern is the amnesia of “settler societies” such as Canada, Australia, New
Zealand, and the United States, where ignorance or outright denial of past abuses
has been the norm. It is not surprising that transitional justice strategies and
12
Johnstone, supra note 8.
13
Bruce Gilley, The Case for Colonialism, THIRD WORLD Q. (2017),
http://www.web.pdx.edu/~gilleyb/2_The%20case%20for%20colonialism_at2Oct2017.pdf.
14
Roland Paris, International Peacebuilding and the ‘Mission Civilisatrice,’ 28 Rev. Int’l Stud.
637 (2002); Louise Mallinder, Siobhán Wills & Thomas Hansen, Transitional Justice Inst., Ulster
Univ., Economic Liberalism, Democracy, and Transitional Justice: Workshop Report (2018).
15
ANNABELLE SREBERNY, THE GLOBAL AND THE LOCAL IN INTERNATIONAL COMMUNICATIONS,
IN MASS MEDIA AND SOCIETY (James Curran & Michael Gerevitch eds., 1991).
10 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
approaches based on research and policy derived far from local experience and
history will be viewed with skepticism and even resistance.
Several participants alluded to this phenomenon. For example, a colleague
from Africa commented:
The European Union’s policy on transitional justice is basically a policy of how
the South should deal with its transitional justice. It says absolutely nothing about
colonial legacies. It says nothing about what the European powers should do about
their responsibility for hundreds of years of abuse…. There is a temptation for me,
as a Southerner, to say the transitional justice policy of the African Union should
be a list of demands for what the Europeans should do. They have refused to take
responsibility for the mess that was left….
Transitional justice encourages such selective memory of the past by
international interventionists. The “transition” is from the most recent episode of
violence, and a narrow focus on immediate actors and direct victims appears to
be responsive to the crisis at hand. Yet local actors see the continuities from the
recent to the more distant past and view the North-based transitional justice
polices through the freighted history of external intervention. As one participant
put it succinctly: “There’s, I think, a very clear sense of hypocrisy that is a
North/South one. From an African perspective, that is a discourse that dominates
or a deep sense of resentment and understanding of how this field is viewed.”
Comments on the uses and abuses of power during the Workshop revealed
the critical importance of the dependence–independence dilemma for many States
in the South. The power of the United Nations and its institutions, the power of
development aid, the World Bank and the IMF, and the dependence on the
largesse of funders (public and private) awaken the collective memory with their
threats of powerlessness and lack of agency. More critically, the push for
“universality” is code for “Western values” and, therefore, subsumes local voices
and traditions: while basic values of human rights and justice may be similar
across cultures, the manner in which these are defined, interpreted, and practiced
may vary widely. For many, transitional justice strategies as currently devised
become imperialism in a new guise that undercuts the possibility of justice and
social repair.
A few participants commented that the goals of security, justice, and non-
recurrence are universal and are not defined by North or South. The question
remains as to how these goals can be translated into mechanisms that reflect the
aspirations of those who have been directly affected by human rights abuses and
not are perceived as impositions from afar that mirror an imperialist past.
B. Dynamics of the Legalization of Transitional Justice
Many transitional justice scholars and practitioners have become frustrated
by how the field has been legalized. International acceptance of legal norms that
mandate processes and outcomes—truth, justice, reparations—offers the pretense
of legalism as an apolitical application of rules. But the invocation of transitional
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 11
justice, and the legal norms that provide its international foundation, too often
mask deeply contested visions about what comes after the bloodshed.
Conversation during the Workshop repeatedly returned to the political dimensions
of transitional justice: how legal norms themselves are politicized or create
particular types of politics; the ways in which locally-based transitional justice
practitioners are caught in political struggles with national and international elites;
and the questions of “what is” and “who owns” transitional justice. These
dimensions are in a constant state of reappraisal, and as a result, transitional justice
becomes politics by other means.
1. The Legal Framework of Transitional Justice and the Politics It
Promotes
The oft-noted triumph of transitional justice is that it has succeeded, in the
span of a single generation, in changing the background assumption that
perpetrators will escape legal sanction for their crimes to an international
expectation that societies will undertake affirmative efforts to hold wrongdoers to
account. The so-called “justice cascade”
16
is ascendant. Dictators can no longer
be confident they will secure assurances of impunity as part of a quid pro quo to
leave office; unconditional amnesties in peace agreements no longer pass
international muster. These are striking changes which confirm that among
international policymakers, the “peace versus justice debate” is over on the terms
on which it was once waged.
17
Among many legal and human rights advocates,
the trope is that justice is the winner as are the victims. The clear-eyed
international political realists who justified amnesties as necessary to achieve
political stability have been defeated by the starry-eyed idealists who successfully
won the argument that the international community cannot subscribe to norms that
countenance impunity for mass violations. The slew of international criminal
courts and tribunals, principles to combat impunity, standards for peace
negotiations, and policy prescriptions are seen to have laid to rest the argument
that impunity and amnesia for past bloodshed is the price societies must pay for
peace. But this international consensus, often invoked by South-based victim
advocates, can also be deployed to deflect or silence countervailing views among
affected communities.
In other words, the terms of the peace versus justice debate have had an
afterlife that many protagonists did not anticipate in the heat of the struggle.
Equipped with law, the idealists won the fight. Supporters of transitional justice
marshalled long-standing, but seldom enforced, international laws of armed
conflict and human rights that required States to prosecute egregious violations.
18
16
Kathryn Sikkink & Carrie Booth Walling, The Impact of Human Rights Trials in Latin America,
44 J. PEACE RES. 427 (2007).
17
See ASPEN INST., STATE CRIMES: PUNISHMENT OR PARDON: PAPERS AND REPORT OF THE
CONFERENCE, NOVEMBER 4-6 1988 (1989); Diane Orentlicher, Settling Accounts: The Duty to
Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991).
18
Orentlicher, supra note 17; Theodor Meron, The Case for War Crimes Trials in Yugoslavia, 72
12 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
But the emphasis on legal approaches to addressing mass violence, and in
particular the application of international criminal law, has led to the
consolidation of transitional justice as a set of law-centered practices which mask
the political debates that lurk beneath them.
19
This “law of transitional justice” has
led to policies and practices which can distort or obscure what local populations
want.
International actors play a role in these politics. In many countries that
initiate transitional justice processes, the ideas about what this undertaking should
look like come from elsewhere. For example, one participant explained that in
Bosnia, international criminal trials shaped what transitional justice was
understood to be. Inside the country, people viewed prosecutions in The Hague as
imposed from abroad. While trials succeeded in removing perpetrators from
power (just as early transitional justice advocates claimed), international
prosecutions did not succeed in softening inter-ethnic attitudes. Convictions of
Bosnian Serb war criminals did not lead to greater acceptance or
“rehumanization” of “ordinary” Bosnian Serbs by Bosniaks nor did guilty verdicts
lead to the “rehumanzation” of Bosniaks by Serbs. The purported payoff that trials
would promote social reconciliation has not materialized and, in fact, has
encouraged popular thinking that retribution is the only acceptable alternative to
impunity. In this case, pursuit of criminal accountability created a politics of
justice but not necessarily a politics that facilitated social cohesion.
Similarly, the importation or imposition of accountability as the “gold
standard” transitional justice response sidelines other, particularly community-
generated, ideas about what would best serve the establishment of peaceful
relations between victims and former perpetrators.
20
Restorative justice practices
such as mato oput in Uganda offer important insights to international conceptions
of what constitutes transitional justice interventions. But a non-government
organization (NGO) practitioner from Uganda explained that national and
international criminal trials dominate national and international attention, leaving
local communities and their preferences outside the mainstream political
conversation. Activists from varied contexts—Cambodia, Tunisia, Sri Lanka,
Uganda—spoke about their work with communities directly impacted by the
violence. Members of local communities may not use or be familiar with the
international vocabulary of transitional justice, but they do have ideas about what
they need in order to recover. And they may not find locally-generated practices
on a “prix fixe” menu of options, which always includes, but may not be limited
to, criminal trials. Serious engagement with communities is vital. South-based
FOREIGN AFF. 122 (1993).
19
Kieran McEvoy, Letting Go of Legalism: Developing a ‘Thicker’ Version of Transitional
Justice, in TRANSITIONAL JUSTICE FROM BELOW: GRASSROOTS ACTIVISM AND THE STRUGGLE FOR
CHANGE 15, 18-21 (Kieran McEvoy & Lorna McGregor eds., 2008).
20
For a trenchant examination of this phenomenon see Samuel Moyn, Anti-Impunity as Deflection
of Argument, in ANTI-IMPUNITY AND THE HUMAN RIGHTS AGENDA 68 (Karen Engle, Zinaida Miller
& D.M. Davis eds., 2016); Paul Gready & Simon Robins, From Transitional to Transformative
Justice: A New Agenda for Practice, 8 INT’L. J. TRANSITIONAL JUST. 339, 357-60 (2014).
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 13
participants emphasized that local engagement is needed to ensure transitional
justice interventions are identified by affected communities. Instead, what they
see is a thin form of “consultation” with community members which too often
consists of informing victims about what constitutes transitional justice—
mechanisms that distant national and international authorities have devised based
on Western conceptions of justice. The assumption is made that these mechanisms
offer a universal response to the needs of all victims everywhere.
The problem of the dominance of criminal accountability is thus the result of
a larger issue: the adoption of an international legal framework for transitional
justice. Early transitional justice supporters advocated for the application of
international law. Their aim was not simply to advance the international rule of
law in the abstract, it was to effect change on the ground. The move to reject
impunity and political transitions that advanced the interests of the negotiating
parties at the expense of victims was instrumentalized through law. Advocates
pressed a political agenda to promote victim-centered justice by insisting that
governments comply with their international human rights obligations.
Victims and their allies could internationalize their demands by relying on
arguments that governments had to implement the human rights to truth and to
justice. This was effective as long as governments complied and as long as
implementation of legal agreements reflected the priorities of victims. As
discussed at the Workshop, however, compliance is continually contested,
requires constant attention and energy of practitioners, and is nowhere fully
realized. Transitional justice in practice becomes heavily politicized. Local
practitioners often are frustrated with international lawyers who play a leading
role in advocating for the establishment of legal institutions to implement
transitional justice processes, but who are notoriously ill-equipped to ensure that
legal institutions work to satisfy the needs of victims. The legal institutions
established to realize these goals often are poorly-functioning and exist in theory
but not in practice. Those working on the ground see up close the price that
victims pay because of the gap between the promise of international law and what
it is capable of delivering.
The isolation of practitioners from international lawyers is exacerbated by
the ways in which the dominance of law forms a wedge between the priorities of
communities and the available mechanisms to achieve them. Once advocates find
themselves operating within the dominant international transitional justice legal
paradigm, they are speaking the language of rights compliance rather than
articulating expressly political demands about what victims need and want.
Victims’ recovery might have nothing to do with criminal trials. Yet the discourse
about victims’ rights in transition narrows attention to particular aspects of
victims’ experiences: violations of civil and political rights resulting from
particular episodes. The underlying causes of the violence, and the systemic
dimensions of the social, economic, and political vulnerabilities that preceded and
followed it, are avoided or dismissed because they are not embedded in formal
legal instruments which are amenable to judicial enforcement.
14 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
Another political dimension that undermines victim empowerment is the gap
between victims who are often poor and living in rural communities, and South-
based practitioners who are seen to be members of the urban elite. A South-based
practitioner traced this problem to the general trend toward professionalizing the
practice of transitional justice (and human rights more broadly) in the Global
South. Local communities directly targeted during the violence may not feel a
shared experience with civil society advocates. Many such transitional justice
actors are well-heeled professionals based in the capital cities of their countries
who descend on remote, affected communities to inform victims of transitional
justice policies that have been formulated without their input. The “local” policies
may reflect the views of the elites who, in turn, may represent the power structures
that disempower the communities which bore the brunt of the violence.
This dynamic is not universal in the “South.” As pointed out by one
participant, in Latin America, victims tend to be more urban and demand legal
justice, even as they raise doubts about the integrity of their national legal systems.
Rural communities in Central and South America voice demands for legal
remedies even though they may not have firm ideas about what such relief should
look like, and despite the fact that legal results often do not live up to their
expectations.
2. The Politics of Social Justice as Transitional Justice
Participants talked about the political obstacles to achieving justice for
victims. Some of these are ideological. For example, one participant argued that
the nesting of transitional justice within efforts to consolidate liberal democratic
regimes means that the goals of transitional justice are to stabilize a particular
political system of a country. Addressing root causes and creating “just”
conditions in society is a far more radical project than national and international
elites generally have in mind. But when the starting point for the discussion about
justice is rights-based, the contest is one over which intervention is feasible and
will satisfy the rights to truth, justice, and if lucky, the right to reparation. This is
transitional justice politics.
What it is not, as pointed out by a Workshop participant, is a discussion about
what is necessary to respond to injustice in order to create social justice. In other
words, the aftermath of mass violence and repression offers the political
opportunity to disrupt the status quo of the institutional and political arrangements
that produced the violent rupture. However, old as well as new politically relevant
actors frequently resist such efforts. More troubling, they too rely on transitional
justice framing and vocabulary to advance their political agendas. However,
transitional justice mechanisms do not currently address the challenges of the
hollowing out of State institutions through corruption and State capture. Thus,
through omission and commission transitional justice becomes weaponized in
national power struggles.
Several examples emerged throughout the day’s discussion of ways in which
governments and powerful interests undermined, discredited, and thwarted the
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 15
justice demands articulated by victims. In the decades since the parties signed the
peace accords in Guatemala, political authorities have resisted implementing fully
the recommendations of the truth commission, which include measures of
reparation and structural reforms. Recently, State actors have taken to discrediting
victims by using their calls to implement reparations as proof that the beneficiaries
are acting out of economic self-interest rather than allegiance to justice values.
Another political tool authorities employ to thwart victims’ demands is the
discourse of counter-terrorism. For example, as one participant recounted, in
Kenya in the aftermath of the election-related violence and the failed ICC
prosecution of political leaders responsible for it, elites promoted national security
and counter-terrorism as key national priorities. Making the country strong,
including through development projects, thus became part of counter-terrorism
strategy. This deflected attention from the victims of the political violence. More
specifically, linking nation development to State security meant that questioning
the effects of such development can be characterized as “unpatriotic.” Civil
society demands that the State attend to the negative impacts of development on
poor communities are then conveniently delegitimized. Calls to address the social
marginalization and the economic roots of the political unrest can be ignored.
Thus, the momentum of local communities to link their victimization to the
underlying causes of the violence is stalled by the political manipulation by elites
who benefit from the economic status quo.
Sometimes, the challenges victims face are not discursive but
straightforwardly political. Victims and their allies can have the law on their side,
as they do in Sri Lanka, but as explained by one participant, if trials, truth
commissions, and vetting processes threaten national political elites, the formal
agreements authorities have signed to initiate transitional justice become hostage
to domestic politics. Another example came from Cambodia, where the
authorities resisted victims’ demands for restorative justice measures as part of
transitional justice processes because former Khmer Rouge cadre members are
part of the government.
But to say that transitional justice is political does not mean it is always bad
for victims and affected communities. NGOs working to advance victims’
interests wield power too. Several participants offered first-hand accounts of
victories they had secured by acting to influence political decisions. Some pointed
to more recent instances in which conflict ended through a mediated settlement,
giving victims the opportunity to shape the political reform agenda; Colombia is
the most recent example.
21
But even where victim representatives may not have a
formal seat at the negotiations, civil society actors can and do lobby political
stakeholders for support. They seek to opportunistically leverage international
policy makers and international transitional justice networks. One example is how
21
Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y
Duradera [Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace], Colom.-
Fuerzas Armadas Revolucionarias de Colom. (FARC), Nov. 24, 2016,
http://www.altocomisionadoparalapaz.gov.co/procesos-y-
conversaciones/Documentos%20compartidos/24-11-2016NuevoAcuerdoFinal.pdf.
16 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
civil society looked for ways to use the Human Rights Council hearing on Sri
Lanka as an opportunity domestically to thaw the frozen state of the government’s
transitional justice policy.
At the same time, when transitional justice practitioners behave as political
actors, shaping their practices and advocacy with the aim of influencing decision
makers, they may find themselves confronting ethical questions about their
professional role. Researchers in South Africa crafted their transitional justice
policy advocacy to omit international framings and speak within a vocabulary of
“local knowledge” practices. They succeeded in persuading authorities to take on
board their recommendations. This may seem like a sensible strategic decision
and not political activism. But, for example, what about a scenario where
researchers or legal advocates have a victim-centered policy goal in mind and then
conduct the research to justify it? They would then blur what for many is a
sacrosanct divide between an “objective” researcher and “partisan” advocate. In
this instance, researchers are entering the politics of transitional justice.
Law permeates the field of transitional justice, but so too does politics.
Practitioners, researchers, and scholars operate on both sides of this dyad.
Advocates for victims deploy law politically by grounding claims for justice as
rights claims. Researchers and scholars advancing the claim that transitional
justice must transform the social and political fields to rectify injustice are making
a political claim about the status quo. To make these statements is not offering
normative judgments about transitional justice stakeholders but, instead, making
observations about the field and our understanding of the Workshop discussion.
To acknowledge that law and politics are marbled into the terrain is not a
condemnation of the field but opens up new lines of reflection about how to steer
an ethical path through the thicket.
C. Dynamics of Research Extraction
Transitional justice is constituted both as an area of academic study and as a
set of practices based on a core group of beliefs that have evolved over some 25
years. Researchers examine transitional justice interventions, the influences that
shape the conditions under which these polices are developed, the institutions that
implement laws and policies offered to address the legacy of mass violence, etc.
NGO activists and other civil society actors form and advance pragmatic agendas,
frequently justified by reference to the preferences of victims, about what
interventions should look like and aim to accomplish. For the most part, the
academic-practitioner relationship is based on shared professed values, an alliance
of sorts. To identify as a transitional justice scholar or practitioner, is to declare
to a core set of shared broad normative commitments: justice, community/society
rebuilding, and the realization of human rights—each group working within its
separate domain.
Transitional justice practitioners are doing transitional work aimed to meet
the needs and goals of communities that have been directly harmed by mass
violence. Researchers are doing studies and publishing findings because they want
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 17
to see transitional justice work. Many researchers consider themselves to be
“activist-scholars”—including some in the Workshop who self-identified as
such—and are comfortable “taking sides” in political struggles. They
unapologetically orient their work to support the goals of victims and
communities. Given the nature of the horrors visited upon individuals and
communities by civil wars, State-sponsored violence, and social upheaval, a
cooperative and mutually supportive relationship between researchers and
practitioners is not only worthwhile but critical. The goals of each group are
aligned and oriented to promote positive outcomes in transitional justice
processes.
1. North-Based Researchers, South-Based Sites
At first blush, it might seem odd that there would be a friction between
practitioners and researchers, united as we are by commitments to support the
recovery of victims and create a more just social order. Yet, as one participant
based in the Global South offered in his provocative remarks, transitional justice
must confront the same paradox that afflicts humanitarian relief industries: “the
suffering of some creates opportunities for others.” He developed the metaphor of
the economic model of colonialism as a conceptual tool to illuminate how the
North-South frictions seep into the relationship between North-based researchers
and South-based practitioners: transitional justice “factories” run by “experts” are
located in the Global North, while the “raw materials” for transitional justice—
the violence, victims, their advocates—are found in the Global South.
There is objective truth in the metaphor. We know from our research that
transitional justice scholarship is written primarily in English, dominated by the
disciplines of law and political science, and written about transitional justice
interventions that take place in Africa or Asia, or countries newly independent
from the Soviet Union.
22
The major conferences at which transitional justice
scholars discuss their research take place in Europe or the United States and are
dominated by academics working in those regions. The research is about people,
events, and practices that take place “over there”—outside the advanced industrial
countries and mostly in places in which the eruptions of violence cannot be
entirely separated from the processes of colonization and decolonization that
indelibly mark those regions. South-based research is limited by lack of funding
and when it is carried out, it is ignored for the most part by academics in the
developed States partially because of language, lack of access of South-based
researchers to major publications, and perhaps, suspicions by scholars in the North
about its rigor. The end result is that the majority of studies are extractive, leaving
those whose lives are affected with little input into interpretation of findings or
their application to policy.
Colleagues based in the South shared stories of encounters “across the
divide” with researchers in the North. These reveal that even well-intentioned,
22
Fletcher & Weinstein, supra note 3, at 183-86.
18 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
ethically-conscious researchers and scholar-activists may be challenged to carry
out their work in ways that South-based colleagues and research subjects
experience as personally supportive and politically empowering. It is hard to get
this stuff right. Foreign research teams take time and resources from locally-based
organizations that facilitate their work. This time and work required of local
groups may or may not be compensated. The larger the research scope, the more
disruptive to local partners. Major undertakings are more likely to occur with
well-funded research, but there are also lone researchers or graduate students
conducting field work who request an interview here and access to contacts there.
It all adds up. And it is extractive, in a strict, crude sense. Researchers need access
to “the suffering of others” and local NGOs and practitioners are the guardians or
gatekeepers of that pain. North-based researchers in their conduct, wittingly or
not, also contribute to the feelings of South-based colleagues of being exploited,
taken for granted and overlooked—the laborers in the fields.
23
For example, several heads nodded in agreement when one South-based
colleague lamented at the number of foreign researchers with whom he had
collaborated to facilitate their fieldwork, but who almost never returned to discuss
their findings with local stakeholders. The “crops” of transitional justice research
may grow in the South, but can only be “consumed” around conference rooms in
the North. And there was shared laughter at the mention by a South-based
practitioner of how galling it is to have former interns from the North return after
receiving their degrees from prestigious institutions as transitional justice
“experts.” Having earned their fieldwork credibility under the tutelage of a local
group, these newly-credentialed, junior researchers traipse through their former
office with all the arrogance and privilege of colonial descendants.
But there also were examples of better practices that go against the grain of
the North-based-researcher-South-based-subject binary, even if they were not in
the end wholly successful in influencing policy. For example, participatory action
research offers the possibility of enlisting local actors in the data gathering and
analysis, thereby simultaneously empowering participants and producing new
knowledge. One current example came from a North-based researcher who is
involved in research in Tunisia on the transitional justice processes there. He and
his colleagues are training individuals who are working in that country’s truth
commission to gather and analyze data on how the mechanism is working. Local
knowledge will be strengthened and local actors will be able to access and harness
their expertise to influence transitional justice public policy. At the time, another
North-based researcher brought up a counter-example from Rwanda. There he
and a team of North-based researchers implemented participatory action research
methods with local educators to design a new history curriculum to teach about
the historical antecedents to the genocide. The research process made the
23
Kate Cronin-Furman & Milli Lake, Ethics Abroad: Fieldwork in Fragile and Violent Contexts,
PS: POL. SCI. & POL. 1 (2018), https://www.cambridge.org/core/services/aop-cambridge-
core/content/view/1D3AA6FCCB5C50F502A99C4B317048F4/S1049096518000379a.pdf/ethics_ab
road_fieldwork_in_fragile_and_violent_contexts.pdf.
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 19
Rwandan participants feel included and agents of curricular change, but in the end
the government refused to adopt the curriculum. Research methods do not
necessarily ensure they will in fact empower local actors.
Over time, there have been some positive developments to reduce this North-
South power imbalance. For example, in Latin America there is a history of
regional networking among transitional justice practitioners. Similarly, African
civil society has organized a transitional justice network to amplify the role of
African NGOs in post-conflict settings.
24
These initiatives hold promise to
strengthen South-South regional ties and a research agenda driven by South-based
priorities. Increased activity among South-based transitional justice organizations
is a prerequisite to shifting the dynamic from North-based prescriptions of what
it means to study transitional justice and towards a research agenda driven by
South-based groups.
2. Extractive Pressures on North-Based Research
Researchers in the North acknowledged some of the ways in which they
contribute to the extractive dynamic, voicing some of their choices as influenced
by their intellectual interests and others as constrained by the institutional
pressures under which they work. In the context of discussing the extractive
research dynamic, a European academic raised the question of whether she and
her colleagues have a moral obligation to research the colonial violence
perpetrated by their own States rather than, or in addition to, more distantly-
related transitional justice contexts. Thus, should Dutch transitional justice
researchers be studying the war crimes committed by the Netherlands in the Dutch
West Indies during the Second World War? Is there a need for North-based
researchers to address the wrongdoing of “our” States before we amass evidence
to demand that States in the South undertake transitional justice measures?
Beyond raising the question of obligations to history that should influence the
research agendas of individual academics, discussion focused more on the
institutional and structural factors that contribute to the extractive dynamic.
Many universities in Europe have a requirement that research be made
relevant to the larger public. However, rather than seizing this opportunity to
engage and adapt their study findings to equip their research subjects and locally-
based practitioners with materials to support South-based advocacy efforts,
Workshop participants acknowledged that the common practice is for academics
quickly to edit their “academic” work into a popular primer—“educational
outreach”—and call it a day. They do not use this as an opportunity to pursue
collaborations with local research partners to generate materials shaped by and in
service of local research agendas.
It is hard to resist these practices. The economic and political playing fields
in which these encounters occur are decidedly tilted. South-based practitioners
24
ADVOCATING TRANSITIONAL JUSTICE IN AFRICA: THE ROLE OF CIVIL SOCIETY (Jasmina
Brankovic & Hugo van der Merwe eds., 2018).
20 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
and researchers are rarely in a position to challenge their North-based partners.
South-based NGOs and academic institutions generally do not have the human
and material resources that match those of their North-based counterparts to carry
out similar research and to publish it in English-language publications that reach
the global transitional justice audience. South-based transitional justice agendas
are mediated through North-based researchers to reach a global audience.
At the same time, there was acknowledgment that some of the extractive
dynamic has nothing to do with individual intentions but is shaped by North-based
systems of academic knowledge production. Most of the world’s most prestigious
universities are based in Western Europe and North America and the academic
tenure standards and the disciplinary incentives promulgated in these elite
institutions are hegemonic in the global academy.
25
Researchers based in
institutions in the North must meet performance standards that shape their
research agendas, how they conduct fieldwork, how they disseminate their
findings, etc. For example, in disciplines like law, in which sole authorship is the
norm, North-based academics would not normally seek out a collaborative
research project in which South-based colleagues would be equal intellectual
partners. In the social sciences, a single authored book is far more valuable in
advancing a career. Other disciplines may have expectations regarding the
frequency of publications that militate against pursuing collaborations with
partners in the South where doing so feels risky because it might interfere with
expeditious publication.
Compounding the problem of exclusion of South-based colleagues from
participation in production and consumption of transitional justice literature are
the economic barriers for South-based academics and practitioners to access the
published scholarship. The highest ranked scholarly journals—in which North-
based academics want to place their work to impress their colleagues and secure
the professional imprimatur of excellence—are published by North-based
institutions. Universities generally have institutional subscriptions, making access
to journals free to individual professors and students. However, practitioners and
researchers in the South must pay a fee to download articles. This effectively puts
the “final product” of transitional justice production beyond the reach of those
who tended the fields in which the raw materials were grown.
Another aspect to the problem is that in many cases transitional justice
scholars may feel marginalized within the academy, and, therefore, they may be
less likely to transgress professional norms that could push back against the
extractive pressures. Transitional justice is not an established discipline or
specialty “belonging” to any one area. The topic of post-conflict transitions can
be approached from many directions; it is an area defined by events, not by a
25
Prestigious universities in Australia, New Zealand, and Asia (e.g., Singapore and Hong Kong)
also follow similar standards. Diana Hicks, Performance-Based University Research Funding
Systems, 41 RES. POL’Y 251 (2012); Eric Archambault & Vincent Lariviere, History of the Journal
Impact Factor: Contingencies and Consequences, 79 SCIENTOMETRICS 1 (2009).
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 21
method of inquiry.
26
It has its own encyclopedia,
27
but it is an open question as to
whether it has matured into a theoretically defined and academically distinct
subject. The fragile academic identity of transitional justice marks those who
research and write in the area. Those researchers based in the Global North have
to justify the value of their work to their brethren in the academy. This may
exacerbate the pressures on these researchers to shape their research to satisfy
traditional criteria of academic respectability: publish in mainstream journals,
follow norms of authorship, satisfy the criteria of prestigious research funders,
etc.
Further, as participants pointed out, within what we call “the field” of
transitional justice, the disciplinary research norms work against breaking down
the domain between researcher and subject to form more horizontal relationships.
Law and political science dominate the published literature. The conventions in
both of these fields place the researcher in the role of fact gatherer and interpreter
of the data, and relegate research subjects to a separate domain. One participant
defended the conventions that every discipline uses to evaluate research. These,
he suggested, are necessary to maintain rigor and excellence. Transitional justice
thus is served by maintaining high (read traditional) standards of each discipline.
It was suggested that other disciplines, like theatre studies, offer more promising
alternatives as disciplines with which to study transitional justice. Looking for
disciplines that accept, if not embrace, a blurred the line between “researcher” and
“research subject” may be a place to start developing alternative models for
research collaborations.
3. South-Based Researcher-Practitioner Dynamics
The tensions in the practitioner-academic relationship are not exclusive to
North-South dynamics described here, although they graft onto it in particular
ways. There was an exchange among South-based academics and South-based
practitioners that pointed to the challenges of building a South-South alternative
to the North-based-researcher-South-based-practitioner model of knowledge
production. Academics in the South are not necessarily allies of local activists.
The “activist-scholar” model is not a widely-accepted research profile in some
regions of the Global South. A more common practice is for academics to adhere
to the professional role of the “neutral,” “objective,” and “removed” observer to
social phenomena. They do not see themselves as involved or engaged in the
political struggles of local activists seeking to influence policy. These professional
strictures mean that civil society actors do not think or look to the academies in
their countries as allies. South-based academics may not be trusted precisely
because they do not claim to have a stake in the practical outcomes that South-
based practitioners are focused on achieving.
26
Christine Bell, Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘Non-
Field’, 3 INT’L J. TRANSITIONAL JUST. 5 (2009).
27
ENCYCLOPEDIA OF TRANSITIONAL JUSTICE, supra note 1.
22 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
D. Funding Dynamics
Transitional justice grew in international prominence and influence because
of international financing.
28
Despite the importance of donors to the work of
NGOs responsible for organizing and advocating for victims, pressuring national
and international authorities to act responsibly, and serving as critical
intermediaries between transitional justice mechanisms and affected
communities, there is little public dialogue about the role of funding. Interspersed
among the comments on colonialism, power, and lack of meaningful input by
victims into transitional justice interventions was an ongoing discussion regarding
the influence of money on how transitional justice is perceived and practiced.
Funders can influence the practice of transitional justice in several ways:
first, by funding certain mechanisms, such as truth commissions or trials, and not
supporting others, such as indigenous justice practices and other local approaches,
funders make transitional justice selectively visible. Funders may choose to
support the work of specific NGOs that pursue goals consonant with international
perspectives on “best practices” for transitional justice. By so doing, funders
suppress locally-based innovations. Second, funders influence how research is
carried out. Funders invest in studies that are short-term and focused on immediate
and tangible deliverables. Lack of money for long-term and broad-based studies
narrows the participation of South-based researchers to a limited genre. The
constant search for funding also limits the ability of South-based researchers to
devote time to write and contribute to the transitional justice literature. Finally,
funding for reparations has significant impact in terms of who receives money and
who does not, whether funders support community or individual reparations, and
how monetary reparations interact with societal transformation.
1. Funding Top-Down Priorities
Much donor money has focused on financing transitional justice aims within
a rule of law framework. This framework effectively negates other victim agendas
but meets the needs of funders for tangible results. A participant from Latin
America noted: “All the money goes to governance and rule of law.... [J]ustice is
very far away from us. … That is not the justice we want.” And another offered:
“I think transitional justice has been treated largely as an extension or application
of international human rights law, international humanitarian law, international
refugee conventions, and the rest, with total disregard for local politics.” What
this means, in essence, is that the large scale and costly interventions that are
legally-based or national in scope (criminal prosecutions and truth commissions)
may not be responsive to the needs of those on the ground. They may, however,
reflect more the top-down views of bureaucrats and professionals in New York or
Geneva in collusion with national elites. However, as a South-based participant
noted, local practices can offer valuable lessons and insights to international
28
Frances Pinter, Funding Global Civil Society Organisations, in GLOBAL CIVIL SOCIETY 195–
217 (Helmut Anheier, Marlies Glasius & Mary Kaldor eds., 2001).
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 23
transitional justice policy and practice. Despite international policies and
assumptions, “[t]here is no gold standard [for transitional justice].”
The focus of donors on “quick results” and “money well-invested” means
that money is steered towards trials and truth commissions; these can produce
measurable results in terms of trials held or number of consultations, etc. It is far
more difficult to measure economic, social, and cultural interventions that may
effect change in the long-term and even then, it may not easily be quantified. As
one African participant said “It’s actually much cheaper to invest in prevention
than it is in cure. [J]ust think ... of the mind-boggling … budgets that international
courts and tribunals are consuming every year.” The participants discussed the
difference between short-term and long-term transitional justice, the latter focused
on institutional reforms that might lead to non-recurrence. While this guarantee is
part and parcel of the goals laid out by the international community for transitional
justice, that is not where most of the funding goes.
2. Funding Interventions vs. Funding Structural Changes
This differential in funding transitional justice mechanisms versus investing
in efforts to promote structural change raises the question of how and whether
transitional justice should encompass the redistribution of resources or economic
development which would prioritize long-term investment in change. However,
such investment becomes caught up in the geopolitics of the global financial and
economic systems. It also has to contend with the histories of Western financing
and interventions intended to undermine post-colonial Socialist governments.
Governments justify the current crackdown on civil society worldwide as a
legitimate effort to protect State sovereignty from pernicious meddling by foreign
interests.
Faced with government resistance to their demands that transitional justice
measures go beyond symbolic interventions, activists in the South have few
national allies upon whom they can call to promote social justice as the full
response to past violence. A participant from Africa summed this up with these
questions:
[W]hy is there violence in the Congo? Why is there violence in the Middle East?
Without us looking beyond and seeking to address those particular issues that are
more geopolitical, that are about the economic system, the global economic system,
we will always be in this field, talking about transitional justice day in, day out,
decade after decade.
Whether financing for interventions to address structural causes is seen as
empowering victims or undermining the government depends on the political
context. Too often, national elites have vested interests in maintaining the current
mechanisms for distribution of resources and in merely changing who controls
them. As one practitioner from the South put it: “Certain States want to engage
with other States on the business of key interests, mostly around natural
24 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
resources.” Money then drives how States reorganize after mass violence or
repression.
3. The Dilemma of South-Based Grantees
Clearly, civil society is critical in ensuring just outcomes in times of change.
Yet, when one participant referenced a study that suggested only one percent of
the funding flow for transitional justice goes to civil society work, a foundation
participant was shocked: “I think, if that’s true, that’s truly scandalous … . We
cannot really talk about power and agenda setting without talking about where the
money goes and how those decisions are made.” This particular foundation had
shifted eighty percent of its funding in this area to local initiatives. Of course, as
we shall see, that has significant implications for research funding and even for
this organization. The reality is that short-term successes are critical to continued
funding even in the context of a multi-year award.
From the perspective of civil society, NGOs need money to survive and they
must turn to donors for those funds. But donors do not always understand the
practicalities of life in the field where organizational survival depends on chasing
external sources of funding for programs that do not meet the criteria specified by
Western-based donors. Practitioners either must change direction in order to
secure funds or limp along as best as they can, often in defiance of national
governments that are threatened by the openness and challenges raised by civil
society. NGOs in the South are seen often as naive or incapable, and as needing
to be held financially accountable in ways that their colleagues in the North are
not.
Two problems were highlighted in our conversation: the first is that donors
are committed to preconceived ideas. One North-based practitioner described his
experience as an international expert flown into a country for a national
conference to discuss which transitional justice mechanism the country would
implement. This practitioner related that the donors had pre-determined that the
country should establish a truth commission. He found himself in the position of
presenting a “checklist:” “‘Here is a checklist. This is what a truth commission is
supposed to look like.’ That’s a big problem.”
The second problem is that international donors fund in specific areas and
demand “deliverables” and accountability for how their money is spent. As one
participant explained: “It’s a little bit like the chicken and the egg” concerning
how donors determine the relationship of transitional justice processes to the
actual atrocities. “How do we get out of this vicious cycle and bring the benefits
of transitional justice … more to the ground?”
For small NGOs in the Global South, spending an excessive amount of time
completing forms and meeting donor demands for housekeeping functions
becomes not only a distraction but seems far removed from the real work of
making change on the ground in what are often intense conflicted environments.
And yet, the NGOs are caught between survival, which depends on meeting the
donor demands, and choosing their own paths, risking their demise.
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 25
How research is conducted, by whom and for whom is also affected by
funding. The gap between research findings and policy decisions is often a
manifestation of how ideology trumps evidence. While many North-based
researchers are forced to comply with government expectations that their work
will be policy-relevant, this is more often a matter of a presentation than real-life
impact. One researcher from the South commented: “Research thus needs to
challenge the framing of how costs and benefits are calculated.” State funding
often comes with a request for policy-relevant studies. Thus, funding then
becomes an arm of government expectations and new directions of study become
limited. These distortions in funding are of great concern to South-based
researchers who want their research to reflect the actual context, desires, and goals
of those with whom they are working.
South-based researchers grapple with a lack of funding. South-based
academic institutions usually do not fund fulltime researchers so researchers in
the South are forced to work multiple jobs in order to support themselves. In
addition, their expertise, valuable to the NGO community and frontline work, is
all-encompassing. There is little time to develop and carry out the kinds of studies
so valued in the North. Finally, these researchers are cut off from academic
communications by the cost of obtaining books or journal access. One Latin
American academic showed an advertisement from a US-based journal:
“Speaking of power structures and gaps and limitations, I think this is exhibit A,
and look at the prices here.” (Holds up a list of prices for journal articles). “These
are real problems,” he said. “Sometimes I come across this fantastic article that
could help, but to read it once costs $60.00.” Travel to international conferences
is a significant challenge as well. By way of illustration: none of the South-based
participants could use their grant funds to finance their attendance at the
Workshop, while all North-based participants had unrestricted funding, however
challenging to obtain, which they could allocate to use for travel.
It is not a surprise, therefore, that the South-based practitioners spoke
forcefully of the extractive nature of the current research dynamic—researchers
from the North studying populations in the South. Money is indeed a driver of
how transitional justice is studied, and who does the studying.
4. Funding Reparations
Finally, it is international donors and multilateral institutions that primarily
fund reparation schemes. How these schemes are determined, by whom, and for
whom often result in unforeseen consequences. Anger at those who receive
money, debates about who is a victim, whether community reparations are of
greater importance, the amount of money available—all of these become bound
up with monetary recompense. Attitudes towards money frequently are over-
determined but even more so when victimization is involved. One participant
voiced her concerns: “The effectiveness of reparation policies requires victims to
‘feel repaired.’” Money is not always the answer; it often drives further
discontent.
26 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
III.
WHAT’S NEXT?
The Workshop dialogue was instructive. Transitional justice publications
frequently have documented, analyzed, and theorized the gap between
expectations for what the field can accomplish and its often-disappointing results.
The Workshop conversation drew from this tradition but invited transgression of
the unspoken norm that transitional justice scholars and practitioners are all “in it
together,” united to promote progressive, victim-centered responses to mass
violence. Framing the conversation around what divides us rather than what unites
us enabled a sustained conversation, fragments of which many participants had
accumulated over time, that pointed to a deeper critique of transitional justice. It
confirmed and gave texture to the observation that the Global North and Global
South differentially engage transitional justice—both in its conception and in its
practice.
Many in the North may shrug off this observation as another example of how
attitudes in the First and Third Worlds reflect differences borne of living in
countries of vastly different levels of economic wealth. Further, in a subtle
manifestation of underlying stereotyping, those who dismiss this gap may
attribute the differences in attitudes toward transitional justice to less
sophisticated understandings of human rights and the international approach to
the field. Those who hold these views may reject South-based criticism as a
tendency by those in the South to hold on to anger at the colonial past or a
manifestation of Third World elite power holders protecting their own. Fueled by
ignorance of local cultures and traditions, avid supporters of international
approaches to transitional justice may dismiss South-based criticism as naïve and
idealistic, even romanticized. The trope is that if South-based colleagues
“understood” international transitional justice better, they would embrace it.
However, ignoring this gap in attitudes and beliefs would be a mistake. Unless
Global North protagonists take seriously their own biases and narrow visions and
their histories of colonialism and abuse of power, there can be no response that
can legitimately be called international. Disregarding this gap impoverishes the
global community and undermines our capacity to understand how transitional
justice operates in the world, in all its indeterminacy and messiness. To promote
practices that advance transformation, we need to forthrightly engage the schism
between North- and South-based perspectives on transitional justice.
The Workshop conversation pointed to several levels at which the North-
South gap operates. The international approach to transitional justice is top-down
and norm driven, even as it gives lip service to eschewing a “one-size-fits-all”
approach. This leaves South-based practitioners often struggling against the tide
(even with allies in the North) to insert victim-based perspectives that run counter
to national and international policies. Or perhaps even worse, local advocates who
initially supported international approaches find themselves unable to effect a
change of direction when, over time, that approach manifests in hardening
divisions between communities, as in Bosnia.
2018] TRANSITIONAL JUSTICE WORKSHOP: INTRODUCTORY ESSAY 27
For the most part, transitional justice policy gets implemented in the Global
South and victims and their advocates have limited power to influence the
institutional design of mechanisms and to ensure their accountability to the
communities that are supposed to benefit. Here, South-based transitional justice
practitioners and often researchers engage in transitional justice politics,
leveraging the resources of international and North-based allies in their efforts.
These alliances generate formal and informal collaborations across the North-
South divide. Such contacts also become sites where North-South dynamics play
out. Research and funding practices may inadvertently unfold in ways that recall,
if not re-instantiate, neocolonial relationships. Frustrations, misunderstandings,
and micro-aggressions flare and erode what, in the abstract, should be mutually-
beneficial partnerships. Can we treat transitional justice not as a sacred concept to
defend, but as a conceptual tool, with flaws like any other, to support just
transformation after mass violence? If so, how does this help us to move forward?
Given the conflictual dynamics surfaced in the Workshop—the lasting
impacts of colonialism, the legalization of the transitional justice response, the
negative consequences of research extraction and the differential and limiting
effects of funding—any approaches to narrowing the North-South gap must
consider ways to mitigate these effects. While all these cannot be addressed
simultaneously, a coordinated approach at multiple levels (civil society, national
and regional institutions, multilateral organizations, and funding agencies) could
be mapped out. Of course, the ultimate objective is to change the norms around
transitional justice—a challenge that will elicit resistance from many
stakeholders. Norm change suggests a need for education, advocacy, policy
strategies, and political mobilization, not a small endeavor. Yet, even though the
idea sounds overwhelming, focused and graduated steps may prove significant.
Not surprisingly, we did not arrive at any definite prescriptions in the short
time we had together. But some ideas for how to engage the North-South
dynamics that pervade the field did emerge. Some of these centered on possible
structures to support on-going dialogue among scholars and practitioners from the
North and South. Such dialogues needed to be balanced, both with regard to
scholars and practitioners as well as between those based in the Global North and
Global South. They need to resist the two dominant ways that international
convenings in the transitional justice area are organized: either as academic
conferences or as donor-sponsored meetings. Funding a few South-based
participants to participate in a North-based academic conference and calling it a
“North-South” dialogue is tokenism at best and recapitulates neocolonial social
formations at worst. Having North-based funders convene South-based grantees
for an “outcome-orientated” meeting in which a few scholars offer input also falls
short of the mark. While there is appeal to directing such efforts toward
immediate, material result—e.g., providing input into international and/or
national transitional justice policy or practices—this likely will leave to the side
the structural issues like the on-going impacts of colonialism in the
conceptualization and implementation of transitional justice.
28 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
New formations are needed. Could a North-South group of scholars and
practitioners be created that could deepen dialogue among us? And could this be
a site from which to generate a different kind of engagement with policy makers?.
Perhaps one led from the South that draws from the local and international
expertise grounded in the geographical diversity of struggles for a just response
to mass violence could generate needed change. Such a formation might be
mobilized to discipline the legalization of transitional justice or at least, assure
that its contributions are clarified, contextualized, and do not displace locally-
based mechanisms where appropriate. Given the difficulty in funding this
Workshop, we have no illusions about the challenges to bring this idea to fruition.
An interregional network of North- and South-based participants would require
significant resources and while there could be a stepwise progression that builds
on various projects, funding for at least a two- or three-year trial would be
necessary.
CONCLUSION
Transitional justice is an evolving field that, while embraced at the highest
levels of international policy, is interpreted and practiced at the local level. Its
growth and maturation invite reflection and interrogation of the ways in which the
field constitutes itself conceptually and practically. The gap between the Global
North and Global South is a feature of the field that urgently calls for greater
attention. The Workshop was an initial effort to foster dialogue on this topic. This
essay is our attempt to synthesize and highlight the essential features of our wide-
ranging discussion that are contained more fully in the edited transcript that
follows. We are indebted to our colleagues for their candor, sensitivity, and
thoughtful insights. Only through facing uncomfortable truths about our field with
unflinching honesty can we improve it.
29
“North-South” Dialogue: Bridging the Gap
in Transitional Justice
Workshop Transcript
*
KEYNOTE ADDRESS .................................................................................... 29!
INTRODUCTION ........................................................................................... 36!
I. DISCUSSION #1 ........................................................................................ 38!
II. DISCUSSION #2 ....................................................................................... 60!
III. DISCUSSION #3 ..................................................................................... 82!
IV. DISCUSSION #4 ................................................................................... 105!
V. CLOSING REMARKS .............................................................................. 124!
PARTICIPANT BIOGRAPHIES ...................................................................... 128!
KEYNOTE ADDRESS
PABLO DE GREIFF, U.N. SPECIAL RAPPORTEUR ON THE PROMOTION OF TRUTH,
JUSTICE, REPARATION AND GUARANTEES OF NON-RECURRENCE
Despite the fact that I think there is a lot to celebrate in the field of
transitional justice, I also think that there is a lot to be concerned about. The fact
that the field has consolidated is, in itself, an accomplishment. No one could have
taken this for granted even in 2004, when the secretary-general’s report on
transitional justice and the rule of law was published.
1
That report expressed a notional, but still not programmatic, consensus
about the complementary relationship between the different components of a
comprehensive transitional justice policy. Even that was something that no one
could have predicted given where the “field” (no such thing at the time) started
from. In addition to the fact there is now a field, as revealed by the fact that there
DOI: https://doi.org/10.15779/Z38KW57J37.
* The following represents a transcript of the above-named workshop, which took place on March
17, 2017.
1
U.N. Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict
Societies, U.N. Doc. S/2004/616* (Aug. 23, 2004).
30 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
are master’s and Ph.D. students doing work in transitional justice; there is the
specialized International Journal of Transitional Justice,
2
for which by the way,
all of us are hugely indebted to Harvey, Laurel, and Hugo, for years of tireless
work as editors. The Journal has played a tremendous role in the consolidation of
the field. It is not just an instrument for conveying information; it is both an
instrument and a manifestation of the consolidating field; there are offices in
foreign ministries that are designed to both streamline the work of transitional
justice in foreign relations and to foment even more work on this. The Swiss
foreign ministry has a specialized unit for this purpose. The Swedes the
Norwegians, and the U.S. State Department (through the Office of Global
Criminal Justice) are active supporters and participants in transitional justice.
Since 2012, we even have a specialized encyclopedia, Cambridge’s Encyclopedia
of Transitional Justice,
3
a good marker of a consolidating field. All of these things
took place in a relatively short period of time. The term itself, as we all know,
became formalized either in the very late ‘90s or the early part of this century. In
twenty to thirty years, the field managed to accomplish all of this.
Aside from academic activity, the important thing of course are the
activities on the ground. The achievements of the field can be characterized by
two factors. First, the “normalization” of the field, by which I mean that it has
become part of the presumptive basket of policies that countries that are going
through transitions—transitions of very different kinds—are expected to consider.
Anyone who is familiar with how difficult it is to achieve normative
change at the international level would acknowledge that this is a huge
accomplishment. In the space of twenty years, the rules have changed such that
there is a firm expectation that something will be done to redress mass violations.
I do not think that we should minimize that.
When people ask me for successes, I always say that I do not think there
is any country that designed and implemented the different basic elements of a
comprehensive transitional justice policy equally right. Nonetheless, there are
some successes that one can point to. For example, I think that Chile and
Argentina are achieving some very important successes in the domain of criminal
prosecutions. In the domain of truth-telling, there are plenty of examples that can
be mentioned, at least in terms of the clarification of important factors underlying
the violations. In terms of reparations, I think that there are also examples of
experiences that can be said to have made an important difference in the lives of
victims and others. Chile is one such example and, in a totally different context,
so is Morocco.
But not everything can be celebration. The field faces some important
challenges, and in the reminder of my talk I will concentrate mostly on these. I do
so not because I am pessimistic or because I want to convey a message of
excessive concern, but because I think that the future of the field hinges on
confronting these issues. There is a sense in which some of the challenges that the
2
INT’L J. OF TRANSITIONAL JUST., https://academic.oup.com/ijtj (last visited Feb. 16, 2018).
3
Encyclopedia of Transitional Justice (Lavinia Stan and Nadya Nedelsky eds, 2012).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 31
field is facing stem precisely from its very quick success. Let me put it this way:
The evolution of transitional justice, our understanding of transitional justice as a
policy that includes criminal prosecutions, truth telling, reparations, and
guarantees of their non-recurrence, the paradigm of transitional justice, took shape
in the Latin American transitions in the late ‘80s and early ‘90s. It traveled rapidly
to the Central and Eastern European transitions. From there to South Africa, and
afterwards the model was diffused very broadly and even more rapidly.
Now, the problem with this rapid success is that, of course, the paradigm
was functionally adequate to meet challenges that emerged from authoritarian
transitions. These were transitions that took place in contexts with two salient
features. Despite all the differences between the South American countries, the
Central and Eastern European countries, and South Africa, there were certain
characteristics that those countries shared. They were highly institutionalized both
vertically and horizontally, and by that I mean, first, that the institutions of the
State had the capacity to provide services in every corner of the national territory
(which of course is not a claim about the fact that they did, but that they had the
capacity to do so). Secondly, these were all countries that were highly
institutionalized “vertically” in the sense that most of the important interactions
between citizens and the institutions of the State already were regulated by means
of law. Again, this is not to say that they were effectively regulated or even, most
of them, fairly regulated. This is also a claim about capacity. This is to say, these
were not countries with huge legal vacuums.
Now, once the paradigm became established, it was transferred with
hardly any modification from the post-authoritarian transitions to the post-conflict
transitions. But the latter is an entirely different world in terms of
institutionalization, both horizontally and vertically. It is also an entirely different
world in terms of the functional adequacy of these transitional justice measures
relative to the type of violations that took place in the new context of their
application.
Truth, prosecutions, reparations, and guarantees of non-recurrence were
perfectly adequate responses to the type of violations that typically took in place
in authoritarian regimes. These violations came about through the abusive
exercise of State powers. Not surprisingly, there is a correlation between
institutional capacity and the capacity to do harm. In the post-conflict settings, it
is not just that the institutional situation is entirely different: the types of violations
that are foremost in people’s minds are not necessarily the violations that come
about from the abusive exercise of state power. Rather, in the post-conflict context
there are other violations that come about from something that looks much more
like social disparities than through the authoritarian exercise of state power.
Therefore, not surprisingly, I think the results that we get through the
implementation of transitional justice measures in the post-conflict settings are
much more ambiguous than the results that we achieved in the post-authoritarian
settings.
This is true not just of the most recent cases. Note, for example, the great
difficulties of doing transitional justice in Burundi. There has been a truth
32 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
commission
4
that is also part of the transitional justice toolkit for export,
supported by the Human Rights Council in its decision. Notice the great deal of
difficulty that we find in doing effective transitional justice for the Democratic
Republic of the Congo (DRC). Even when you look at some of the other cases, it
is not so clear that transitional justice has been a perfect fit. In fact, in the trajectory
that I described from the southern corner of Latin America to Central and Eastern
Europe and then to South Africa, there are few who know the story who would
have recognized the transitional justice process needed the experiences that came
in between the first and the second stages I described. Mainly, these are the
experiences of El Salvador and Guatemala, which were much more like a post-
conflict situation than post-authoritarian choices, where it was already very
difficult for transitional justice to do what it had done in Chile and in Argentina.
From my perspective, one way of framing the most important challenges
that the field is facing is to think about and to take seriously that justice for victims
must occur in context. It means to take seriously what it means to do transitional
justice in a place which is very, very weakly institutionalized; in which the
universe of victims is tremendously large; and in which the diversity of types of
victimhood, and, correspondingly, the diversity of perpetrators is significantly
larger than is usual when the violations took place in highly asymmetric
authoritarian regimes.
I do not think that we have an answer for these challenges, because I think
that most of the work that we are doing now is work in post-conflict settings.
Unless we get it right, I think that we will have a great deal to worry about in ten
or fifteen years. We have to keep in mind that this field is almost entirely
dependent on international cooperation. International cooperation for various
reasons, including in response to the demands of local constituencies, but also
those of donor states. The waning influence of interfamilial philanthropy is a
concern. International assistance is becoming more and more results-oriented.
Unless the field can show results, it will start losing supporters. In a certain sense,
no one should blame people for changing their minds about the results that
transitional justice can produce. I think that this is a serious issue.
The second great challenge for us is a related concern, a part of which I
mentioned just now. It is curious that transitional justice has much difficulty
explaining what it seeks to accomplish. I think that this is due to the consolidation
of the field. The variety of aims that are attributed both to the individual
components of the policy and to the policy as a whole are incredibly broad. Again,
because I take this to be a conversation between experts, I do not think that I need
to illustrate it at length, but the number of claims that are made for the results that
should come about from the implementation of transitional justice policies are
absolutely astonishing.
Based on the claims made about transitional justice, you would think that
human beings have finally found something like a universal policy tool,
4
REPUBLIC OF BURUNDI TRUTH AND RECONCILIATION COMMISSION, https://cvrburundi.bi/en/
(last visited Feb. 16, 2018).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 33
something that can be implemented in just about any circumstances and solve just
about any sort of problem. Of course, we know that there is no such thing as a
universal policy tool. We, in fact, know that transitional justice was not
theoretically based on social science or intelligence from the field, but rather it
was driven by the very, very pragmatic needs of a lot of people who worked on
the first transitions, who had no guidance whatsoever from a paradigm. There
were no documents, no international experts. They went into a field that was
unknown. They were inventing the field in order to resolve a set of issues in very
concrete circumstances. These issues can be summarized, not perfectly
accurately, but in shorthand, as trying to provide some resolution without
upsetting a democratic transition. I think that this is something that we have lost.
We have lost a sense of the connection between a problem, the tools, and the
outcomes that we expect from them.
I am fond of saying that perhaps the greatest challenge that transitional
justice faces as a field is the almost total lack of functional analyses on the part of
its own defenders. We keep defending the field and defending the wonderful
results that we claim that it can produce, without too much analysis of whether
the tools that we have at our disposal are functionally adequate to producing the
results that we claim they produce. Again, until we get this right, I am afraid that
we are at risk of losing credibility. There is a certain sense in which it is very
serious to make promises that you cannot deliver. Furthermost, I think that
because these are promises that are primarily made to victims. There is a peculiar
form of cruelty in awakening expectations of people that have already suffered a
lot, without any certainty whatsoever about whether we will be able to deliver on
the promises that we make. A functional analysis is called for.
Now, I will make two additional remarks and stop there. The first one is
the following: perhaps one way of understanding the challenges that we face is to
disentangle the difference between a doctrine on the one hand, and a policy on the
other. I am, of course, fully aware of the fact that the needs of transitional
countries, particularly in the areas of governance and institutional structures, are
very, very deep. They are deep in all orders. They are very deep in terms of how
to make up for a huge scarcity of resources, huge deficits in governance, very,
very severe poverty, and power differentials, and really a lot of helplessness in
terms of where to go to in order to have rights redressed.
I have never, ever, even in my wildest dreams, thought that the agenda of
transitions, in other words, an agenda that would satisfy all those various kinds of
needs, could even be satisfied through the implementation of a criminal justice
policy. If you are honest, you have to acknowledge that criminal justice policy
has never, never been the sort of policy that leads to the investigation, prosecution,
and punishment of every perpetrator of a human rights violation. Even through
concurrent implementation of a transitional justice policy, again, being honest, we
all have to acknowledge that, as important as it is, no experience has ever
addressed the violations in proportion to the harm that victims suffered. These
policies have never led to the disclosure of the fate of future perpetrators—only
to the clarification of the involvement of the institutions of the state and human
34 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
rights violations. Nor, in any country, has the concurrent implementation of a
reparations program ever been done in proportion to the harm that people suffered.
Of course, that even with the addition of a policy of institutional
accountability beforehand, we would have to report that no country in the short
run has been able to hold accountable each and every institution that enabled or
allowed the violation of rights to take place. I think there is a sense in which, for
me, it has always been a puzzle to think that anyone could support the
implementation of those four measures. No matter if you conceive of the mandate
as the absolute solution to all the problems that come about through complicated
transitions, by taking the transitions that start from a very, very low baseline of
institutional capacity, and a very, very high baseline of the needs on the ground,
implementation is a formidable challenge.
Now there is a lot of discussion about what we are doing and what the
field of transitional justice should be. The politics of those who are looking for an
expansion of the agenda are mostly, parenthetically and as a personal remark,
much too focused on socioeconomic distribution. I am totally in favor of
socioeconomic distribution, and support very effective ways of cutting poverty in
transitional countries. However, there is nothing in the transitional justice policies
that we know of, that has actually been implemented, that can be called adequate
instruments for the achievement of those ends. There are great development
deficits that have to be made-up in transitional countries.
I do not think it is serious to argue that the implementation of transitional
justice policy is a response to those deficits. We have development deficits that
require focused and thoughtful programs to do serious development. I am totally
in favor of coordination between different policy fields. I am totally opposed to
policy centralization, either institutionally or conceptually, that suggests only one
institution should be in charge of a totally comprehensive transitional policy. A
transitional justice approach, a transitional policy encompassing all dimensions of
development, all dimensions of security, all dimensions of justice, seems to me
too clearly acknowledge these gaps. I have never seen an institution that would
be capable of carrying out such a policy. If it means running this kind of
comprehensive policy, now, after a few years of working in this field, my
reservations are even higher than they were before. Policy coordination is
absolutely indispensable. The expansion of the policy mandate for transitional
justice, when the field is already finding it quite difficult to achieve its narrower
ends, seems to be to be a very tricky and risky proposition.
My message is that we need, of course, to find ways of doing transitional
justice policy better than we have done it up to this point. We need to find more
effective ways of addressing the huge deficits from which each of these countries
suffer. I am not sure that the recipe for this is simply to assume that transitional
justice can do all that. I think that we ought to find the recipe, and that doing so is
perhaps an exercise in imagination. We ought to find ways of loosening the grip
that the classical paradigm of transitional justice has on us. Mostly, in my opinion,
we ought to find better ways of connecting with other kinds of policy interventions
that are much better equipped and functionally adequate to resolve some of the
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 35
problems that the societies face. Of course, like everything else, I would love to
be able to contribute to their success in the future.
The last remark I wanted to make, because I do not want to simply end in
terms of a challenge and on a down note, is that there is already a potential in the
area of guarantees of non-recurrence, to interpret these in the key of prevention.
The reason why I am optimistic about this is that I am convinced that we actually
know a lot about prevention.
It is just that our knowledge is horrendously segregated, and therefore, if
prevention does fit under the term guarantees of non-recurrence, you would never
actually get to policies that are successful at preventing human rights abuses. Part
of the task is how to recognize knowledge and assistance in a way that makes
much more sense and how to do it much more comprehensively.
There are several different streams of prevention work. Most of them,
however, concentrate on issues having to do with early warning. While early
warning systems are very important, in my opinion, anything that is capable of
triggering an early warning system comes too late. There is a lot of work that
could be done by way of involving institutions that would be effective in the
domain of prevention. Also, the second characteristic of most preventive rhetoric
is that it concentrates so much on institutional reform that it leaves out altogether
the very, very important contribution that civil society can make to preventive
efforts.
I think that a better approach to prevention would be one that involves a
broad framework that leaves room for interventions. Interventions not just at the
level of institutional reform, but also that would acknowledge the importance of
a strong civil society and interventions in the domains of culture and personal
institutions. With this, I close. In this very, very difficult time, I often think what
is the point of doing what we already have spent so much time trying to do. I must
say that it has not always been easy.
I am convinced of the following. I think that if the previous American
administration had been a bit more tough-minded about doing what it expected all
the other administrations to do all over the world, to deliver on the past in a serious
way, the resurrection of the argument about torture, for example, is something that
would have been much, much more difficult this time around. Therefore, these
things matter. The past, as we know, is not simply a waste. It leaves traces, and I
think that we will do well in shaping our approaches with this in mind, because
what we do is important not just for the past. It is important for the present and
for the future. It matters a great deal.
Thanks a lot.
36 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
INTRODUCTION
FLETCHER:
I will start with a question, because a lot of the conversation this morning
centered around power, and that is a theme that is woven through your own
remarks and observations about the field and its challenges. One of the questions
is, within our practice and approaches, what might be other interventions that we
should be prioritizing to recalibrate power within countries? In particular, I think
this is challenging in countries with weak state institutions, but how can we make
the processes more responsive, more victim-centered? I wondered if you wanted
to make some observations about that, considering not just political power, but
also cultural power. How can we amplify the agency and power of victims, who
themselves are often coming from context of historic and ongoing marginalization
and social subordination?
DE GREIFF:
In talking about the field of transitional justice, we must accommodate to
context very seriously, but I think that it should be clear that this is not just a
problem for transitional justice. It is a problem for the human rights and legal
reform fields and many areas, generally. Something that I think that we have to
keep in mind the template for institutional reform: how will these processes take
shape? In 2010, the World Bank invited me to advise the team that was in charge
of the production of the 2011 World Development Report. The most interesting
aspect of that experience was that the bank commissioned a lot of work,
independent research, on questions of institutional dynamics. One of the most
important results of that research was, for example, to use the banks of four or
five different governments in the countries, in order to take a country from the
level of Haiti, not to the level of Denmark, but to the level of Ghana.
In other words, a significant improvement from the baseline, but not an
extraordinary one. Under such a strategy, the governance in the country improved
in four or five different areas. If you took the average of the historical institutional
progress, it would take between thirty to forty-five years in order to make that
shift. If you took the three top performers historically, the three countries in the
world that have done their best in terms of institutional changes, you would reduce
that gap to around between seventeen and twenty-five years. These things take a
long time. I do not think that the transitional justice field has taken these results
on board with sufficient seriousness.
Now, I have two questions about institutions. When I look back at the
history of our field, not so much in the literature but in the practice, I cannot
understand where civil society is in these transitions. In current times, it is not
going to succeed without huge contributions from civil society. I cannot
understand the Chilean transition without the contributions of a network of
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 37
religious associations. I cannot understand the Polish transition without the work
of Solidarity, a trade union, in which there was an important religious dimension.
These are not simply questions about all transitions. The Tunisian transition, a
very recent one, cannot be properly understood without the work of labor unions
that started protesting and raising claims to justice long before the problems of
transition were being solved.
There is a huge and very, very important role for civil society
organizations (CSOs). Not just non-governmental organizations (NGOs), but civil
society more broadly, that have historically played an absolutely crucial role in
transitions. But, in my interpretation, the contributions of these groups tend to be
obscured over time, because most transitions mobilizing the world of both trade
unions and religious organizations decline after the transition. There is no
successful transition, from my perspective, without a civil society that is
empowered enough to raise claims that their governments would be perfectly
happy to ignore. I know of no government that spontaneously says, “Wait. Let’s
do justice to victims.” on its own. This is something that they are brought to only
when they have to, and they have to only when civil society has a certain type of
power, the sufficient power to do this.
In connection with these questions of power, the sort of social
transformations that we are looking to achieve through the implementation of
transitional justice measures are not simply a question of institutional change.
Ultimately, they will also require changes at the level of culture and changes at
the level of personal dispositions. You are being provided, right now, in the
United States, with a wonderful example of the necessity of making, in a mutually
supportive way, the transformation of institutions, of culture, and of individual
dispositions.
Nothing in the United States has changed institutionally or in the culture
since the election. It remains to be seen whether U.S. institutions will bow to a
certain type of personal disposition. Without a supportive culture, our relationship
to authority may change from the ways that we were familiar with. This is an
illustration of a general phenomenon that we should be looking for in other
experiences as well, and regarding which we should learn to exercise our
imagination as well.
Now this is in respect to the institution of the paradigm of transitional
justice but turning to interventions that can make effective contributions to the
development of a culture. Someone asked me once what the greatest surprise was
that I have experienced while doing this job. I said, “I taught philosophy, political
philosophy for twenty years.” I used to teach about the complex nature of the
project of the Enlightenment. The greatest applause that I have received is when
I explain every day that in fact it is so. The project of the Enlightenment is very
incomplete. Even countries, and now we are not talking just about countries in the
South, even countries in what claims to be the highly- developed world and have
only begun to realize that the idea of rights.
38 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
I.
DISCUSSION #1
Question: Is there a North-South gap in understandings and beliefs about
what transitional justice is and what it can do?
PARMENTIER:
Trying to prepare a bit for this first session, I was reminded of an
experience which I had ten years ago at a conference in Brussels. We had a
meeting on transitional justice at the Ministry of Foreign Affairs; a large gathering
of about 150 people which was mostly geared to criminal justice. During the
break, we had an interesting table conversation talking with researchers and others
about which new areas of research we could venture into which would be
interesting topics for PhD.s and articles and books.
All of a sudden, this practitioner from across the table, and I will not tell
you the name, intervened and said: “What are you talking about? We have a
toolkit.” At that time, United Nations had produced the various books, which you
remember, of the Office of the High Commissioner for Human Rights (OHCHR):
books on criminal justice, on truth commissions, on victim reparation programs.
5
We were so flabbergasted, because basically what this lady was saying is that if
there is a toolkit, what else is there to be researched? You just apply the toolkit,
right? What are you guys talking about? This is the end of history, almost.
We did not know what to say, but it stayed with me for many years. This
is one of the few occasions to share this kind of experience, which is very much
at the heart of our discussion this morning. What is that toolkit? Where did it come
from, and how is it applied? What are its limitations? Of course, also, the
possibilities. Let us not be naive and blind for the possibilities, either.
In trying to set the scene a little bit for this first session, I would just like
to mention that in light of the many critiques in the meantime of academic,
practitioners’ and policy makers’ approaches as well about this toolkit approach,
this seems to me as one of the aspects we would deal with.
5
See Off. of the High Comm’r for Hum. Rts. (OHCHR), Rule-of-Law Tools for Post-Conflict
States: Prosecution Initiatives (2006), available at
http://www.ohchr.org/Documents/Publications/RuleoflawProsecutionsen.pdf; OHCHR, Rule-of-Law
Tools for Post-Conflict States: Truth Commissions (2006), available at
http://www.ohchr.org/Documents/Publications/RuleoflawTruthCommissionsen.pdf; OHCHR, Rule-
of-Law Tools for Post-Conflict States: Reparations (2008). OHCHR published a number of additional
toolkits in the transitional justice series, including: archives, mapping the justice sector, monitoring
legal systems, vetting, maximizing the legacy of hybrid courts, amnesties, and national consultations
on transitional justice. See Publications and Resources, Policy and Methodological Materials, Off. of
the High Comm’r of Hum. Rts. (Feb. 7, 2018, 2:00 PM),
http://www.ohchr.org/EN/PublicationsResources/Pages/MethodologicalMaterials3.aspx.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 39
What we are going to focus on are a couple of issues, such as the general
context and the way in which that may be of influence to understand the divide,
or the gap even, between North and South or between other regions in the world.
The second element is more specific: geopolitics. They have always been
there and most likely are going to stay with us, but what is their relevance?
Colonialism and Western-based funding and donors are an important element as
well. Thirdly: language. Do we have a language? Is there a language? What kind
of language? Who determines the language? It is almost like a linguistic analysis
which we may also be able to carry out in this morning’s session.
DOLAN:
I want to thank you for allowing me to put some brief thoughts on the
question: is there a North/South gap in understandings and beliefs about what
transitional justice is and what it can do?
Let me begin by going back to two books that shape my own thinking and
politics. One is called The Benefits of Famine, the other Imposing Aid.
6
The key
message I take from both is that, paradoxically, whether in the famine relief,
humanitarian or—latterly—transitional justice “industries,” the suffering of some
creates opportunities for others.
The North/South gap lies in how we engage in that paradox. For purposes
of provoking, I would suggest that the major transitional justice factories are
located in the Global North, while much of the raw materials—as in so many other
areas—are produced in the Global South. Transitional justice industrialists (sorry,
I mean self-designated “experts”) go to do “fieldwork” and harvest crops from
seeds they imported and planted on a previous visit. Worse still, some of those
seeds are genetically modified so that they only germinate when fertilized from
the Global North. The “value-added” is expected only to happen in the Global
North, which sees itself as enjoying a monopoly on “international expertise,”
while the Global South fills in the void in its “local knowledge.”
North-based transitional justice operators (NBTJers) thus need to be
hyper-aware of positionality, and who they see as the audience of their work
(Academics? Policy makers? Funders? Politicians? Victims? Communities?). If
any of us is to have the label “expert,” should not this be granted by
users/consumers, not by ourselves? NBTJers need to really get their heads around
the relationship between beautiful concepts and ugly contexts.
7
I will never forget
6
David Keen, The Benefits of Famine: A Political Economy of Famine & Relief in Southwester
Sudan 1983-9 (2008); B.E. Harrell-Bond, Imposing Aid: Emergency Assistance to Refugees (1986).
7
In 2010, the Refugee Law Project (RLP) established the Institute for African Transitional Justice,
an annual meeting of one week designed to look in depth at burning transitional justice questions. The
inaugural Institute focused primarily on the interface between the concepts and contexts of transitional
justice, particularly as they relate to the dynamic and complex situations confronting Africa. As I said
then:
40 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
the day when, following the success of one of our lawyers in helping the
government to reinstate the Amnesty Act (anathema for many NBTJers), one of
our donors stormed into the office and accused us of “promoting impunity.”
Unlike Stephen and myself, she was not around in 1999 when the Amnesty Bill
was being pushed by civil society actors desperate to create a new dynamic in the
northern Uganda conflict, a dynamic in which they could proactively engage in
the pursuit of peace.
NBTJers thus need carefully to interrogate their ontologies—not just
about what constitutes “justice,” but also about which stakeholders they should
be concerned with. Specifically, should the State always be so central to the
transitional justice field? Is not the State-centric nature of the more mainstream
side of the transitional justice discourse also its biggest imposition on the Global
South? I would suggest that it has enabled the co-optation of transitional justice
as a space by States concerned with what non-State transitional justice might
reveal. This co-optation, which often makes even more remote the prospects of
citizens achieving a sense that justice has been done, is one in which State-focused
transitional justice operators are often carelessly complicit.
Since the Refugee Law Project (RLP) got into transitional justice in the
mid-2000s we have grappled with the question: can you do transitional justice
where there is no transition? And, if you do, are you not just legitimating the status
quo? Over the last decade, I think we have concluded that yes, you can (do
transitional justice without a T) and, no, you are not necessarily rubber-stamping
the status quo. For me, South-based transitional justice is less about State-
controlled truth and reconciliation commissions (TRCs) and prosecutions, and
more about opening up multiple physical, political, therapeutic, and theoretical
spaces that would otherwise not exist, and in which consideration of past mass
violations can get some oxygen rather than being repeatedly smothered.
In early 2017, we held our first Memory Dialogue, a village level one-day
meeting in a place called Barlonyo, to see if a shared narrative would emerge
about the massacre that took place in February 2004. We had trained “peace
commissioners” selected by that community to oversee the process. While this
cannot lead to punishment of perpetrators, it does feed into accountability,
acknowledgement, and healing at a local level.
We also continued with our Traveling Testimonies Exhibit, a collection
of materials about different aspects of Uganda’s history that are rarely discussed
There is a sequence in the eyes of international experts when dealing with post-conflict
recovery in Africa. They tend to forget about what is going on in that particular place at
that particular time. It is increasingly becoming clear that most organizations claiming
expertise in the field of transitional justice policies and practices, widely believe that
experts exist only outside Africa, and yet there are many people of international
expertise residing in Africa… . The RLP experience indicates that external so-called
experts are ignorant of the local contexts, yet they come to direct the local people on
what to do. It is with this consideration in mind that the Institute finally settled on its
name: it could have been Institute for Transitional Justice in Africa or Transitional
Justice Institute in Africa—yet it opted for Institute for African Transitional Justice.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 41
in public. By taking this to places that are barely connected to the rest of the
country, such as the remote Karamoja region, we help to change the received
narrative.
Our Compendium of Conflicts,
8
which captures community
understandings of conflict histories in their own areas, is a game-changer insofar
as it generates a national discussion about Uganda’s history, rather than simply
consolidating the received narrative (i.e. that Uganda is and has been at peace with
the exception of those areas ravaged by the Acholi bad-man, Joseph Kony).
Through slow and careful work with survivors, we have put
documentaries into the public domain that are influencing perceptions of conflict-
related sexual violence against men globally. Again, not transitional justice as
understood by many NBTJers, but definitely transitional justice in the eyes of the
men and communities who feature in those works.
Some of the above examples have been done single-handedly by RLP,
while others are the fruits of extensive international collaborations. South-based
transitional justice operators are rarely in a position—economically or
politically—to pursue oppositional North-South binaries. In a recently published
article about the new slogan (“engaged excellence”) of one of our North-based
partners, we asked readers to challenge the entire notion of “engaged excellence;”
rather, we argued, North-based institutions and practitioners should be striving for
“excellent engagement.” The essence of excellent engagement by North-based
practitioners is to:
• learn and share but not impose (remember Imposing Aid)
9
perspectives,
practices, skills and other resources;
• recognize and respond to an uneven global playing field in which institutions
often benefit more from human suffering than the victims who are the
supposed beneficiaries of their interventions (remember The Benefits of
Famine);
10
and
• let go of the need to control the process and any belief in an automatic
entitlement to determine universal standards and parameters.
In conclusion, as these brief remarks suggest, the answer to the question
put to me (“Is there a North/South gap in understandings and beliefs about what
transitional justice is and what it can do?”) is that yes, there often is, but it does
not have to be that way. To avoid reproducing some of the dynamics that have
been documented in the field of humanitarianism is fundamentally a question not
8
Refugee L. Project and School of Law Makerere University, Compendium of Conflicts in
Uganda: Findings of the National Reconciliation and Transitional Justice Audit (2014), available at
https://www.refugeelawproject.org/files/others/Compendium_of_Conflicts_final.pdf (last visited
Feb. 16, 2018).
9
HARRELL-BOND, supra note 6.
10
KEEN, supra note 6.
42 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
just of self-awareness and dialogues of this nature, but also a willingness of
individuals to critically interrogate the centrality of apparent givens such as the
role of the State in transitional justice. All of us involved in the transitional justice
field, whether as academics or practitioners or both, are either widening or closing
the North/South gap. Which it is to be comes down to individual choices, all of
which demand intellectual rigor, and none of which are without implications for
the individual concerned.
HACHED:
What is “North” and what is “South”? Is Serbia South, and what about
Ukraine or Russia? I would not say there is a gap between North and South in
understandings and beliefs about transitional justice. I could say, however, that
transitional justice seems to depend on the “law of the strongest.” And, nowadays,
in the international arena, what we call the “North” or the “West” is (or is
perceived as) the strongest.
To illustrate this law of the strongest applied to transitional justice, I may
of course talk about Iraq or Afghanistan, Abu Ghraib, CIA forced renditions,
extra-judiciary execution in Yemen… But, I will look further in the past and talk
about colonial crimes and, more specifically, French colonial crimes.
Many colonial crimes were perpetrated during the late ‘40s, the ‘50s, and
the early ‘60s, after the Nuremberg trials. In Tunisia, the years 1951 and 1952
were the theatre of important human rights violations. On the 17
th
of October
1951, General Garbay was appointed in Tunisia. Four years before, he had
actively participated in the Madagascar massacres.
11
Why are such crimes never taken into account when experts and
researchers talk about transitional justice? Until now, French society seems
unready to face its past. But, is a society ever ready for transitional justice?
Transitional justice is linked to the concept of power. It is imposed by the
balance of power and depends on the bargaining power of each concerned party.
This perception of transitional justice feeds conspiracy theories about
what is happening nowadays in the Arab world and in Tunisia. Some people do
not understand why we should go through a process they perceive as distorted.
The people who are against the process instrumentalize this perception. They ask
11
General Garbay, in concert with General Pellet, commanded French forces tasked with putting
down the Malagasy uprising of 1947-1949, resulting in an estimated 60,000 deaths and widespread
human rights abuses. SIMON INNES-ROBBINS, DIRTY WARS: A CENTURY OF COUNTERINSURGENCY
119-20 (2016). See also Francoise Raison-Jourde, Le soulèvement de 1947: bref état des lieux, in
MADAGASCAR 1947: TRAGÉDIE OUBLIÉE 15-24 (Colloque Association français d’amitié et de
solidarité avec les peoples d’Afrique, 1997) (discussing the Malagasy uprising and setting the number
of deaths at 89,000); FED. RES. DIV., LIBR. OF CONG., INDIAN OCEAN: FIVE ISLAND COUNTRIES 15
(ed. Helen Chapin Metz, 1994) (discussing the Malagasy revolt and estimating casualties of 11,000 to
80,000).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 43
why the transitional justice process is so supported by European countries. What
is their agenda? Is the purpose not to weaken our country?
Nevertheless, and although representing a double-standard, the
transitional justice process was seen by victims, civil society, and a majority of
people in Tunisia as a necessary step, even if they did not call it “transitional
justice” at the very beginning. Notably, according to a 2016 poll, 67.3% of
Tunisians are in favor of the public hearings of the previous regime’s victims,
which represents a fundamental aspect of the transitional justice process.
12
In early 2011, just after the start of the Tunisian Revolution, rare were the
people who knew about transitional justice, the expression itself, its definition or
its mechanisms. “Transitional justice” was a slogan accompanied by sets of tools,
brought by international non-governmental organizations (NGOs) and the United
Nations, thought and created elsewhere. Where exactly? Are international NGOs
and the United Nations part of the “North”? Whatever they are, this cannot
conceal that Tunisia actually needed a transformation process whether we call it
“transitional justice” or something else.
Before Tunisians discovered and adopted the specific language of
transitional justice and its related tool kits, they had their own reflections about
the need for truth, justice, reparation, and institutional reforms. During the first
two years of the democratic transition, a sort of mix occurred between what
Tunisians needed and expected from the Revolution and what international NGOs
and the United Nations brought with them. The latter echoed the former in order
to respond to the need for recognition and justice expressed by the victims. In this
regard, the first public hearings organized by the Tunisian Truth and Dignity
Commission
13
had a great influence on public opinion, which came to realize the
importance of transitional justice. It was a sort of switch point.
But what about the other victims, the ones of the so-called “North”? What
about the victims of colonial crimes? When will the transitional justice process be
applied there? When will truth be revealed and justice be served? Today, in
France, the law is written in order to escape such responsibility.
There is no gap between North and South in understandings and beliefs
about transitional justice, but there is a double language and double standard built
on the law of the strongest, and it is time transitional justice benefits all the
victims, including the victims of the so-called North.
12
The Public Hearings of the Truth and Dignity Commission, SIGMA CONSEIL,
http://www.sigma.tn/upload/1482230192.pdf (last visited Mar. 3, 2018) (presenting the results of a
2016 Sigma Conseil poll in which 67.3% of respondents agreed with the statement that the hearings
of Tunisia’s Truth and Dignity Commission represented “a positive move toward transitional justice,”
with 29.5% slightly agreeing and 37.8% strongly agreeing with the prompt) (translated from Arabic).
13
L’INSTANCE VÉRITÉ ET DIGNITÉ (TRUTH AND DIGNITY COMMISSION), www.ivd.tn/fr (last
visited Feb. 28, 2018).
44 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
MACK:
Thank you. I want to reflect that twenty-seven years ago, I was here in
Berkeley when my sister was killed. Before that, I had not had any human rights
background. After returning to my country, to Guatemala, I became a private
prosecutor to seek justice for my sister. Now, twenty-seven years later, I am here,
talking about transitional justice, and what has been my experience.
There are contributions of transitional justice in the sense that, at least for
me, I did not have any human rights background, so transitional justice provided
me concepts to clarify what I should pursue. It helped me.
My first contact, of course, was with the Inter-American system. With
justice, the problem is that you focus too much on the legal. All the time I fought
with my lawyers in Guatemala, because I was saying: “Hey listen, this is the
truth.” They said: “Yeah, but you know what, according to the law, this goes thus
and so.” It is a language that sometimes you do not understand, or it is not what
you want, because the legal truth is not the complete truth. What, for victims,
sometimes is important, for lawyers is not important.
So, the legal truth is not the complete truth. Sometimes, it is not what
victims want. Because, sometimes, we want the law to confirm what really
happened. But, if we do not have the evidence, then we are told: “You don’t have
this, you don’t have that, you don’t have this other thing.” Then, what you do have
is disappointment in for the legal truth, or legal justice.
At the end, when you finish the legal process, you have an emptiness.
After how many years, struggling with the system, and at the end, yes, maybe we
had a conviction. But after that, what if things have not changed? These …
principles of truth, justice, and reparations are no guarantee of non-repetition.
Then we start talking about transitional justice. We have the truth
commission.
14
What happened with the conclusions? There is no link. We still
have the concentration of power, discrimination, and the lack of opportunities for
indigenous people. There is no way to achieve the commission’s
recommendations. The political parties do not work. Twenty years after the Peace
Accords, we are still in the same situation. I agree with what Farah was saying.
This is the law of the strongest. The strongest are the ones who produce truth.
That is what we are fighting in Guatemala. Who owns the truth?
Okay, yes, we had the United Nations truth commission, but the
Guatemalan government has not accepted its findings. The educational system did
not transform, because those responsible do not want to accept that they
committed genocide, or that the cases that appeared in the truth commission report
14
Officially named the Commission for Historical Clarification (Comisión para el Esclarecimiento
Histórico), Guatemala’s truth commission operated from 1997-1999 and, upon the completion of its
work, issued a final report detailing its findings and recommendations to the Guatemalan government.
See Truth Commission: Guatemala, UNITED STATES INSTITUTE OF PEACE (Feb. 1, 1997),
https://www.usip.org/publications/1997/02/truth-commission-guatemala (providing an overview of
the Commission’s work and links to its charter and final report).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 45
are true. What happened with the truth commission report? Nothing. It did not
have any impact, except for the victims.
After reading the truth commission report, it made such a personal impact
that I still get sentimental talking about it. Because it was as if, for the first time,
somebody was speaking the truth. But the report did not have any systemic
impact, just on the individual victims. For the perpetrators, that does not mean
anything. To them, we are just a number. We are just a file.
With reparations, they will always delegitimize us, the victims, by saying
that we are just looking for money, because this is the focus of economic
reparations. This then becomes one of the arguments for collective reparations,
for example. Or, in the case of guarantees of non-repetition, victims seek the
institution of reforms, but then there are problems with donors, or with the politics
or the policies.
When you have such a transition in which there is no transition, you have
programs for democracy and governability and, on the other side, you have
transitional justice. These are two tracks that never come together, because the
programs for justice and the institution of reforms, these are technical
interventions. And, we, the advocates for human rights? We become victims of
the system. We are told: “Yeah, yeah, yeah, we’re working on that, don’t worry.”
But these two types of interventions never talk to each other. All the
money goes to governance and rule of law initiatives. When this happens, it is like
what happens with the victims in Guatemala; we say justice is very far away from
us. This focus on governance and rule of law is not the justice we want. There is
no remediation or renunciation by the government. What I mean to say is that
everything should focus on the victims, on the dignity of the human being.
Instead of taking steps to strengthen victims’ sense of dignity, what those
in power do is victimize us again, and criminalize us. In the Guatemalan case, and
I think all over the world, we are criminalized with hate speech. We are labeled
terrorists. We are accused of being people who leap at money … through the
cases. But that is not the truth. Now we are being prosecuted, because we are still
the criminals.
The other aspect of transitional justice in Guatemala is the victims’ call
for a national legal solution. The regional and international instruments are fine
as instruments to pressure to the government, but that is it. We victims want
something that can impact our domestic context. That is why we began talking
about an international truth commission,
15
as our instrument of transitional justice.
Because we knew that under the rule of the strongest, you always have the
15
Such a commission, the International Commission against Impunity in Guatemala (Comisión
Internacional contra la Impunidad en Guatemala), was ultimately formed in Guatemala to respond to
obstacles such as “widespread common and organized crime,” “a lack of political will,” and a “legacy
of ineffective justice sector institutions” which hampered the implementation of the Peace Accords.
Background, INTERNATIONAL COMMISSION AGAINST IMPUNITY IN GUATEMALA,
http://www.cicig.org/index.php?page=background (last visited Feb. 5, 2018). For further details on
the commission and its work, see INTERNATIONAL COMMISSION AGAINST IMPUNITY IN GUATEMALA,
http://www.cicig.org/index.php?page=home (last visited Feb. 5, 2018).
46 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
perpetrators in power. They become corrupt. They are human rights violators, and
they also are corrupt people. They transform into criminal networks used for
corruption. That is why they will always use the human rights argument. The
underlying issue is impunity and corruption, and it does not matter who is in
power. Left, or right, or whatever. The problem is also economic.
In Guatemala, according to the indicators of human development, we are
worse now than during the conflict. When we had the peace negotiations, the
agreement reached changed our economic model, and the situation started
becoming worse. I think that is happening in Colombia now, and I think that it
has happened in many other countries. The powerful make such changes because
you do not make peace if doing so does not make you money. That is why
perpetrators stay in power. That is why we or the victims will always be victims.
There is no way to transition, because of the operation of the law of the strongest.
Now that we have had this international commission against impunity, we
are in the same position again. We want a body that can be close to us to make the
changes, the institutional changes, and we believe that impunity of the past is
impunity of the present. Our calls for this mechanism are the reason why we have
been criminalized again. While some of the military are in jail, due to corruption
against human right defenders, social leaders are being killed. We are
experiencing a new wave of human rights violations. Transitional justice, in the
end, does provide some clarity.
Then, what of healing and transitional justice. I understand healing is
important, but it is not easy. I feel that it is important on a personal level, but at
the end of the day it is inseparable from the struggle for human rights. You do not
want to lose control, so that you can prevent those in power from saying that you
are crazy. In the country and in our environment, the conditions for feeling do not
exist. This is another reason why we cannot have reconciliation: the famous
“political reconciliation” that emerges from this concept of transitional justice
also becomes an instrument to attack you personally. We know, we are conscious
of the fact that we need healing, personal healing, but because we are forced to
live in the past, we do not have the conditions to engage in real healing.
PARMENTIER:
Thank you so much, Helen, for this talk also based on your very personal
history. I think of you as one of our champions of human rights and transitional
justice in the world. You highlight a very important element, namely transitional
justice in a country where there has been some political transition, of course, but
maybe very little systemic change, if any. This seems to be one of the issues that
we need to tackle.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 47
OEUNG:
16
In the twentieth century, there have been many violent conflicts in the
Southeast Asian region. Among the worst events of mass violence in this region
were the crimes committed during the Khmer Rouge regime which held power
from April 17, 1975 until January 6, 1979 and is responsible for an estimated
death toll of between 1.5 and 2 million. Through an agreement made in 2003
between the Cambodian government and the United Nations, the Extraordinary
Chambers in the Courts of Cambodia (ECCC or Khmer Rouge tribunal) was
established to try the senior leaders and those most responsible for serious crimes
and human rights violations committed during the Khmer Rouge period. The
tribunal offers an opportunity to debate the efficacy of transitional justice
mechanisms in this country. The concept of transitional justice in Cambodia was
not widely known before the court commenced its legal proceedings. More
activities and discussions on this topic have been introduced and somewhat
influenced by local and international NGOs, scholars, and researchers since the
inception of the court.
It is difficult to translate the concept of transitional justice into the local
context and language, as it has to adapt to the local values, culture, and ownership
with particular consideration of other countries’ experiences. Through a massive
amount of outreach work conducted by the tribunal and numerous NGOs in the
country since 2006, more and more people have increased their understanding of
and actively engaged in the transitional justice process. For many people, the
judicial process underway at the ECCC is a significant transitional justice tool that
is expected to provide them justice, although this term can have different
meanings.
Unique in the history of hybrid courts or special courts that deal with mass
atrocities such as those of crimes against humanity, war crimes, and genocide, the
ECCC provides an opportunity for victims of these crimes to participate actively
in its criminal proceedings as civil parties (parties civiles). The participation of
victims is provided in the tribunal’s Internal Rules and facilitated by the Victims
Support and Lead Co-Lawyers Sections of the court. The role of these sections is
to support the prosecution and request collective and moral reparations in the case
of conviction of the accused before the tribunal. More than 8,000 victims filed
complaints to the ECCC, which is an indication of their desire for justice and for
recognition of their suffering. This victim-centered approach is perceived as
adding value to the criminal prosecution, but also it is acknowledged that it could
potentially delay the proceedings if not properly managed and planned.
There are many different expectations and hopes placed on this hybrid
tribunal, especially from the victims, including attendance and participation at
trial, justice, acknowledgment and support, truth, forgiveness, reparation, and
reconciliation. Each has different constraints and limitations. As the process
16
The views expressed by Mr. Oeung at this event are his alone and do not reflect those of his
current employer, the Swedish Embassy of Phnom Penh.
48 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
moves forward at the court, some of these expectations have been realized, while
others need more time and their outcomes remain to be seen. The limitation of
criminal trials such as the ECCC is that they try only a handful of top individuals.
To date, only three individuals, Kaing Guek Eav alias Duch, Nuon Chea, and
Khieu Samphan have been convicted by the ECCC to life imprisonment, while
three out of four others are under investigation. Many surveys have found that
over 90% of Cambodian people support the Khmer Rouge trial as the last hope
for justice, even though some see it just a partial justice because lower-level
perpetrators will not be brought to trial.
17
Some studies suggest that the retributive approach of the ECCC should be
combined with the restorative approach through the establishment of a truth and
reconciliation commission.
18
However, this approach has never been initiated due
to a lack of genuine political will and commitment from the Cambodian
government. The government has indicated that it views such a commission as a
threat to the country’s peace and stability given that some of those in power in the
government today are former Khmer Rouge cadre.
The Cambodian experience shows that the NGOs have played a crucial
complementary role in supporting the transitional justice process through
activities including outreach, community dialogue, victim participation support
(including psycho-social support), genocide education, and promoting healing
and memorialization. Their tremendous efforts have resulted in the
implementation of a number of non-judicial projects benefiting many victims, not
only the participating civil parties, for instance: learning centers about the Khmer
Rouge history, memorials, testimonial therapy and self-help groups, mobile
exhibitions on forced transfer and forced marriage, and education on genocide
prevention.
In conclusion, the geographic location of the ECCC in the country where
crimes were committed creates a better opportunity for discussing transitional
justice among the many victims even though their expectations have not been
fully addressed. The challenge of this process is how to best maintain the
momentum, as it requires persistent outreach activities by the tribunal just as the
NGOs are experiencing decreasing funding as donor priorities shift. From the
Cambodian experience, it is also important to look at four core pillars of post-
conflict society—justice, reconciliation, peace and development—as they are
interconnected and, therefore, require a balanced consideration of priorities.
17
See e.g. Phuong Pham et al, So We Will Never Forget: A Population-Based Survey on Attitudes
about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia (2009)
(indicating that 86.9% of population-based survey respondents “believe the ECCC should be involved
in responding to what happened during the Khmer Rouge regime (KR).”)
18
See e.g. Jaya Ramji, Reclaiming Cambodian History: The Case for a Truth Commission, 24
Fletcher F. World Aff. 137 (2000).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 49
PARMENTIER:
Thank you very much, Jeudy, for this interesting information. I think you
also highlight that, next to judicial procedures, there can be lots of accompanying
measures. Maybe through the lens of judicial procedures, you can mobilize people
and get them to think about the broader issues of society. As you said,
reconciliation peace, and development are very broad paradigms, but the
connection between them and the justice paradigm is a very important issue.
SÁNCHEZ:
As you said, thank you very much for your presentations. As I said, I think
there are some different understandings and, sometimes, we fight about the
meaning of different concepts. I can name four of them. First, I think we have
different meanings and understandings of conflict. We saw it here. Why do not
all sorts of violence matter equally? Why do we get always stuck with some forms
of violence, but not others? For example, colonialism and colonial violence, or
violence in other countries, and not the ones that you usually expect.
Second, I think about justice. What does justice mean? Does justice mean
the same thing for Northern development agencies, or communities? Third, I think
about history and how violent times occur. I think sometimes we perceive in the
field that some North-based organizations just understand history in the very
short-term, perceiving that the narrative of violence is what happened just right
before someone got killed and not over the longer arc of time. Finally,
expectations. We have different expectations of what we want get out of
transitional justice. I think we need to work on that.
FONSEKA:
Picking up on what Camilo [Sánchez] was saying about expectations, and
what different communities would perceive as transitional justice, what is justice,
what is truth? In Sri Lanka, there are also tensions within the society. We talk
about North/South, but there are also tensions within the South, within the
different communities. These tensions are leading to further divisions and
conflict. I think that also is something what we need to recognize and discuss.
It is easy to go back to North/South problems, but within the South or
within the North, there are these growing issues. How does one address it? I think
also looking at some of the literature already out there, and some of the authors in
the book Localizing Transitional Justice that Harvey, Laurel, Naomi have
written,
19
is to look at how do you bring in localized notions of transitional justice?
Or, what is meant by truth? What is meant by justice?
19
Localizing Transitional Justice: Interventions and Priorities After Mass Violence (Rosalind
Shaw et al. eds., 2010).
50 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
Also, we are trying to grapple with various ways of addressing these
tensions through the formal and informal. Maybe it is not going through the court
structures, but is there another way of doing it? The tensions, the conflicts are
across the board. It is not just what has been “out there” in the popular debates or
the narratives, but also what is “in here” that also needs to be looked at, and how
the “in there” leads to further tensions and conflicts. Thank you.
BICKFORD:
What I want to talk about is my time at the Ford Foundation. Over the past
five years we have had a program to invest about $50 million, which was quite a
bit of money, on exactly the kinds of dynamics we are talking about here. It is
something I have been thinking about a lot over the past five years.
Essentially, our goal in that program, which is now wrapping up … was
to think about the North/South dynamics in the overall human rights movement.
Transitional justice is arguably a part of that movement as well, but to think about
those dynamics in terms of exactly the language that Chris [Dolan] was using of
“raw material” in the South, and the global factors in the North.
There were two basic ideas driving the program. One was to invest in a
very unusual breed of NGO: an NGO that is headquarter in the “Global South,”
but is an international NGO. Of course, there are two models of that: both the
Kenya Human Rights Commission (KHRC) and Dejusticia. It is an unusual breed,
because the way that the movement has developed, for some good reasons, but
the way it has developed is that, if you are based in London and New York, you
are allowed to be international and work on all sorts of other countries out there.
If you are based in Colombia or Kenya, you are supposed to be national and just
working on your own national context. Our idea was that there is no reason for
that kind of dynamic. We really wanted to invest in that kind of idea.
Two parts of that: One is around agenda-setting power, and I think we are
talking about that here. I think that is a big topic in this room—the idea of agenda-
setting power, right? The raw material is in the South. It is all over the world. The
question is who is setting the agenda? Who is setting the agenda of the donors?
Who is setting the agenda of the United Nations? Who is setting the agenda of
international academic institutions? How are those agendas getting set, and who
is sitting at those agenda-setting tables? That, in a way, I think, is a key question.
The second part has to do with the notion of deep-rooted national
knowledge and the role of domestic, local, whatever you want to call it,
knowledge. Deep-rooted knowledge and the role of that in setting the international
agenda and engaging with that knowledge.
This brings us to the idea of implementation. How you realize rights? How
you implement rights? How is that actually done in a policy-making framework?
This is very different than norm-setting, right? You have a whole tradition of norm
setting, and then there is the real question of how you actually make those norms
real, and how this local knowledge is part of that international discussion.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 51
A key aspect of what we were trying to do with this $50 million was about
how you get that deep-rooted national knowledge into the international
discussion. That meant that we were supporting, first, these deep-rooted national
organizations, like Dejusticia and others, to engage in the international, and it also
meant we were supporting networks, because networks are a key part of this idea.
I think those are some of the main ideas that interest me: agenda-setting
power, deep-rooted national knowledge, the epistemological discussion of the
international—how we come to know what we know on the international level
and how we make those decisions—and then the idea of networks.
The final thing I want to say is that actually, in all the subfields of human
rights, I think transitional justice is better on these questions than most of the
human rights movement. In fact, there is a great interview with Pepe Zalaquett in
that United States Institute of Peace (USIP) video from ten years ago, where he
says transitional justice is a South-South movement. It starts with the CONADEP,
and the trials, and then it moves to Chile, and then it moved to South Africa, and
it moves around the South. There is a way in which it is not just raw material, but
also dynamic exchange and engagement among southern players.
Then transitional justice goes North and it gets captured by the factories
of the North. Nonetheless, it does have this deep-rootedness in a South-South
discussion that continues to this day. I have not been in Tunisia, but my guess is
that I know a number of people who were engaged in the Tunisia discussion who
were from Peru, or from Timor, or from wherever, and that conversation is a
South-South discussion. In many ways, I think there is probably a lot of room for
improvement, but at the same time, I think, compared to some of the other
subfields of human rights, transitional justice is not as bad-off in this particular
regard.
SONGA:
I just wanted to raise some issues based on what I heard in the very good
presentations earlier on. I think one of the things we have to deal with or confront
within the North/South gap is also looking at the contemporary recharacterization
of what previously we have called transitional justice issues. These are essentially
being characterized in line with the interests of the national elite and, sometimes,
business interests.
This is particularly true within the prism of the legacies of colonialism, as
we heard earlier. For example, viewing historical marginalization, which was
previously a subject of transitional justice or debated as such, is now being viewed
from the prism of extremism as “confronting terrorism.” That has effects in terms
of how different issues are characterized. States are now partnering with others
States on the business of confronting terror and viewing what previously would
have been a debate within certain national contexts as historical marginalization,
now is discussed as confronting extremism.
Such an approach has altered the dynamics in terms of the support
programs that deal with those issues and the characteristics that they take.
52 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
Historical injustices are now, first, transformed into debates around land
conservation and national resource extraction. The communities concerned are
framed as the subject of corporate social responsibility, rather than dealing with
the actual issues of deprivation of land from certain communities.
You also have the situation of robust debates on marginalization and
inequality arguably subdued into debates on “national cohesion,” where questions
of inequality and marginalization are now viewed as retrogressive to what is a
broader nationalism project.
These changed dynamics have an effect on the different actors involved in
these conversations. That is why, for example, I identify with some of the things
that Chris [Dolan] had said. As CSOs approaching things from a certain angle,
your donors will impose a certain perspective on you. Like I will say for the
Kenyan example, the buzz words are now “countering violent extremism.”
Funders want you to reorient all the conversations you have been having
into: “How does this translate, in this country, into violent extremism?” You talk
about underlying issues that drive conflict, especially, again, in an electoral
campaign environment. For example, we are going into elections this year. They
talk about: “How do you ensure you maintain peace?” We have a message of “one
Kenya,” rather than: “What are some of these electoral issues, which if not
resolved adequately, would drive conflict eventually?”
I think these are some of the dynamics involved in what we are
characterizing as a gap between the North and South. The reality is that it has been
driven by, I think, some form of convenient relationships between the three
structures I described earlier. Some of it is money. First of all, there are national
interests. Certain States want to engage with other States on the business of key
interests, mostly around natural resources. Sometimes it is even less sinister.
National business interests are enshrined as national interest, when, in reality, it
is a certain cabal of elites within the South, mostly political elites within the South,
dealing with businesses outside that are only interested in certain forms of
extraction. I think these are some of the dynamics that we have to unravel when
we talk about the North and South divide.
HODZIC:
I am Refik and, although it says I am from the International Center for
Transitional Justice, I am, in fact, from Bosnia. I will be, throughout these two
days, wearing that particular hat that informs my experience. Here, I want to speak
from my professional experience, which is entirely about communications and
communicating different ideas. I must say that I think that I have never come
across a field that suffers from language issues as much as the field of transitional
justice does, including the term transitional justice, which I resent hugely, because
it makes my life of a communicator incredibly difficult.
I also think it has to do with the problem we are discussing, because
definitions are simply spoken about and perceived differently. Just let us start
from North and South in this context. Where do we count the experience of
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 53
Eastern Europe? Where do we count the experience of Bosnia? Where do we
count the experience of Canada or Ukraine in this divide in which we are talking
about Southern resources and Northern factories? Although I fully understand
what Chris [Dolan] meant by that, because I must say that my gold mine was
plundered by many an academic and practitioner from the Western world.
I think that we first, of course, have to understand what we are talking
about in order to understand whether there is a problem. It would pay to maybe
go back to when Louie [Bickford] mentioned Pepe Zalaquett; one of his papers is
my Bible. It talks about what we are actually talking about, never mentioning the
term transitional justice. It talks about human right policies in the aftermath of
massive human rights violations, with very simple, clear goals. That is: to repair
victims as much as we can, and to do everything we can to never have this happen
again. All these things that we are talking about fall under this very simple
understanding of dealing with mass atrocities in situations where normal justice
systems simply cannot handle it.
Then, we have developed, and developed, and developed. I think that,
again, coming back to my narrow professional lens, it has to do with audiences.
With policymakers in the international realm, they prefer to talk about a certain
set of terms and ideas when it comes to transitional justice. Victims, of course,
will always talk about it in terms of their needs, from the perspective of what harm
they need to repair. Local politicians and decision-makers—as Andrew [Songa]
gave a brilliant example—will simply speak from the basis of their priorities at
the time, and those will change, my God will they change.
How has the discussion of transitional justice changed just by the
standards of Trump, for instance? Chris knows. Then, I think on top of all that,
comes context. Context: cultural, political, and driven by dynamics. Then what
Louie was talking about, the genders. I think that language issues are one of the
key issues we must address for us to really be able to contribute to this at all… to
understand whether there is a gap in understanding, what that gap is, what are we
talking about in terms of what can be done, and so on.
KAHALE:
I work with a Syrian NGO called Dawlaty. I am from Syria, based in
Beirut. First, I want to refer to the issue that Helen [Mack] mentioned about
attacks against and criminalization of victims over and over again through
supposedly transitional justice processes or post-conflict interventions. That is
something that we are not: post-conflict in Syria. You see, by the attacks on
women in particular, that there is a need in the international community for
women to be the peacemakers and to push for reconciliation. Every time women
talk about accountability or so on, we are attacked as not wanting peace.
All you said gives me a view also, as we go forward, how this could
proceed. I always feel uneasy in the spaces because we are not post-conflict in
Syria. Working on transitional justice has been a bit problematic. To hear that,
actually, transition is not really clear for many cases, I think that has been one of
54 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
the struggles for us: what does transition mean? I think it is really interesting to
look at that and to hear experiences about what you do when either the regime has
not changed, or where there is a change at the top, but is no will to have
institutional change. I look forward to hearing more about what that means for
transitional justice.
MIHR:
I am based in Berlin, Germany. I bring in the voice of the Global North
here. After hearing so much about the Global South in general, I agree with the
general notions, but I just want to challenge, a little bit, the raw material and the
manufacture elements in particular. Being based in Germany, we are still
grappling with our second dictatorship. We have lots of “raw materials” in
Europe. When I talk to my colleagues in Eastern Europe, and Poland, and the
Czech Republic, they do not even have time to look at the Global South, because,
as I say, we are so busy with our own “raw materials,” still, from the communist
regimes.
I am very glad Refik [Hodzic] highlighted, again, that also we have
Yugoslavia in the Global North, and I think they are not through with the
transitional justice process, either. In terms of raw material and manufacture, I
must say—and I just want to throw this in—if you come from an entirely, let us
say, English-speaking environment, particularly North American, the world looks
like this. Most of the literature, most of the research done in English focuses on,
let us say, sub-Saharan Africa or Latin America, where there is less of a language
barrier.
When you look particularly in Eastern Europe, where every country has
its own institutions, they are often not externally donor driven, so they have their
own funding, their own money. The Polish leagues do not publish in English.
They do not need to. There is tons of material and publications in Polish. The
same in Czech Republic, the same in Russian, by the way. Often these people do
not live in Russia.
This is one thing about publications and research. We often underestimate
what is done in that part of the world, because they are not external donor-driven.
They do not have to send a report to American or English-speaking donors.
Sometimes they have to send reports to the European Union. Then we are aware
of it.
Another thing that I would like to throw in from the Global North is about
the dialog. I think this dialog already has been going on for at least twenty or thirty
years. It is not proportional, but the dialog has been going on. When I think about
the transitional justice process in Spain, it was certainly influenced by the Latin
American transitional justice processes. Even when I think about the not-so-
successful transitional justice process in Russia, when the soldier’s mothers
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 55
started protesting.
20
They said: “Look, we got our inspiration from Argentina.”
They started in the 1990s.
When I think about the transitional justice process, yes, it has not been
very successful. In Turkey, very much inspired by Latin America, they picked
their ideas from around the world. They traveled around the world, picked their
ideas, mostly from the Global South, because they had a lot more in common with
them than, for instance, Germany, which was often seen as a blueprint. Again, it
is the same for Germany. Two dictatorships. There is everything you want in
transitional justice. There is a lot of research and publications, but entirely in
German. There is very little exchange in comparison to other countries.
I just want to throw these thoughts in to say that we are not reinventing
the wheel, but I absolutely agree with what has been said earlier. I think there is a
lot of homework to be done in the Global North about their own past. Yes, I
definitely agree with that.
PEMBERTON:
I am a professor of victimology at Tilburg University in the Netherlands. I
am a social scientist. I just wanted to pick up two points that were made by Chris
[Dolan], initially, and I think by Louis [Bickford] afterwards. Chris said that this
is not a problem that is restricted to transitional justice, and I think I can
wholeheartedly agree with that. I think that Louis said that he is interested in the
epistemological questions, and I happen to think that maybe parts of the problem
are not the problem. It is an epistemological question. Social science, as we do it
in the North, looks for universal, abstract, transcendental laws of social situations,
to the detriment of thinking about meaning, about morality, about context, about
intersection with practice.
I think that is quite a lot of what is at the heart of the thing that we find
difficult here, difficult to understand, difficult to engage when we—in our
factories in the North—look to particular contexts in the South, to do that.
I think there is also an answer. I think that answer was provided by
Aristotle 2,500 years ago when he defined the three intellectual virtues: episteme,
techne, and phronesis. Episteme, otherwise known as epistemology, is about
universal knowledge, but phronesis is about the understanding of value
judgements and particular social and political context. I think that is what we
should look to when we try to solve these situations.
20
See also COMMITTEE OF SOLDIERS’ MOTHERS OF RUSSIA, http://soldiers-mothers-
rus.ru/index_en.html (last visited Feb. 6, 2018); The Committee for Soldiers’ Mothers of Russia
(CSMR), THE RIGHT LIVELIHOOD AWARD, http://www.rightlivelihoodaward.org/laureates/the-
committee-of-soldiers-mothers-of-russia-csmr/ (last visited Feb. 6, 2018) (providing a general
overview of the organization and its history, goals, and accomplishments). See generally Kora
Andrieu, An Unfinished Business: Transitional Justice and Democratization in Post-Soviet Russia, 5
INT’L J. OF TRANSITIONAL JUST. 198 (2011) (discussing the trajectory and outcomes of transitional
justice initiatives in Russia since the fall of the Soviet Union).
56 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
LETSCHERT:
I am also from the Netherlands, from the low countries, as we call it. I
used to be an academic, and then I became an administrator, which I confess right
away here. I was very much inspired by what Farah [Hached] said, because I think
what we tend to do in the Global North and the West is to forget our own history,
our own violent history. I can speak from a country that is really struggling with
facing up to its history, in particular, after the Second World War in the Dutch
Indies, where the government has, for many years, failed to investigate the alleged
war crimes that actually were confirmed by the United Nations. For many reasons,
it has failed to open up and to look into that particular history.
What I would like to bring to the table here, is the question about the
responsibility of the academic community itself. The term “science diplomacy”
came to my mind. As an academic myself, I am doing research in Lebanon, and
Rwanda, and many countries all over the world, but I am not doing research in the
Netherlands and Dutch Indies. I am doing research in all these countries in the
Global South, and I am also not really working very hard to convince my own
government to face-up to its history.
This term “science diplomacy” and taking responsibility as an academic,
I think should be something that we discuss here, and maybe tomorrow in some
of the conclusions, we can set an agenda. You talk about agenda setting, but I am
confessing that I am failing there myself. You brought that to the table, and I thank
you very much for that.
ALTHOLZ:
I work with Laurel [Fletcher] at UC Berkeley Law’s International Human
Rights Law Clinic. Like a lawyer, I am going to take the victim’s word here. I am
a human rights practitioner, I am a human rights attorney. I do not identify myself
as a transitional justice practitioner, and the field has always, to a certain extent,
mystified me. Because, what does transitional justice really mean?
I have always thought it really interesting that the history that the field
tells about itself always starts in World War II and not the colonial period. What
I wanted to comment on today was my perspective as a human rights attorney
doing human rights work in the United States and how difficult it has been to get
the field to recognize some of the issues we face in the Global North as transitional
justice concerns. Perhaps, playing off the metaphor that Chris [Dolan] described,
the United States is founded on slavery and the genocide of indigenous people:
this is a place where there is much “raw material.” This is an interesting time in
the United States, independent of our current administration, where there has been
some progress on issues of restorative justice for mass incarcerations, state
violence, indigenous rights, terrorism and Guantanamo Bay, and using the human
rights framework, truth, justice, reparations, guarantees of non-repetition to think
about those issues.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 57
Also, the war on drugs. When I have tried to approach donors and some
of the founders of the transitional justice field and talk to them about these issues
as human rights issues, as transitional justice issues, whatever that may mean, I
have gotten almost no purchase or traction. I just wanted to make that
contribution. This is a joy to be here. I recognize so many of the names around
this table, and you have so influenced my work, and I am glad to be part of this
conversation. Thank you.
HACHED:
I just want to point to something Jeudy [Oeung] said about peace and
development, because the first pillar in transitional justice is this guarantee of non-
recurrence or non-repetition we say it in French. We always think about
institutional reforms and memory. I mean museums and things like that. But, we
never think about development or economic development as such a guarantee.
The question arose for me when, in South Africa, just some weeks ago, there was
violence against foreigners from neighboring countries. We say transitional
justice is for the people to find reconciliation, to be better with themselves, and
not have this violence again.
I was wondering, what use is the process of transitional justice if we are
going to have repetition of violence, but next time against another enemy or create
other victims. Maybe in South Africa or other countries the reason the violence is
repeated was because they did not achieve development, or social redistribution
of resources. This is maybe the key problem. Is redistribution of resources or
development a part of transitional justice or not? This is my question. I just put it
in the arena.
WEINSTEIN:
This is, I think, a really great start. I was trying to think about some of the
issues that Refik raised about vocabulary, how we use words, which has been one
of the things I have written about for twenty years. A great concern, also, is
agenda-setting. I have a chapter in your book on who sets the agenda. It really
boils down, to me, to what Farah [Hached] said at the beginning, which is we are
talking about the law of the strongest. It is what Helen [Mack] was referring to.
The question, then, for me is how do we return agency to people who have been
marginalized, who have suffered and who have lost? That is true whether it is in
Canada, whether it is in Germany, whether it is in Bosnia, whether it is in
Cambodia, wherever. How do we do that?
That raises the question about what methods, what mechanisms have we
developed over the last twenty-five or thirty years to return agency? Have we
selected methods that are effective in doing that? Why have we chosen the
methods that we have? Should transitional justice, the way it is currently
constituted, be the way we should be doing it, or should we be thinking in a much
more imaginative way? Because we do have a gap.
58 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
The gap, for me, is not North, South, East, West. It is power and
powerlessness. Then the question is what do you do about the powerlessness? It
is not changing. It is happening in the United States at the moment. It is something
that, I think, underlies all of this.
VAN DER MERWE:
I am with the Center for the Study of Violence and Reconciliation based
in Cape Town, South Africa. Coming back to the North/South that I do think we
need to keep firmly in focus, the European Union brought out a policy on
transitional justice, and now the African Union also has been working on a policy
for transitional justice. The European Union’s policy on transitional justice is
basically a policy of how the South should deal with their transitional justice. It
says absolutely nothing about colonial legacies. It says nothing about what the
European powers should do about their responsibility for hundreds of years of
abuse.
There is a temptation for me, as a Southerner, to say that the transitional
justice policy of the African Union should be a list of demands for what the
Europeans should do. They have refused to take responsibility for the mess that
we were left with.
I think that sense of hypocrisy around defining what are the justices that
we are addressing? Who is taking responsibility? If we look at just a limited
timeframe, since the colonialists left, how have we tried to reconstruct a messed-
up legacy? There is, I think, a very clear sense of hypocrisy that is a North/South
one. From an African perspective, that is a discourse that dominates or a deep
sense of resentment and understanding of how this field is viewed.
BICKFORD:
I wanted to use the word “power” also. Just a thing about Global South,
Global North. It is a totally imprecise term. I think we should just understand and
agree that we are talking about—it is a proxy for something else. There is plenty
of Global South in the Global North, there is plenty of Global North in the Global
South, if we look at geography. This is not about geography. This is a metaphor
about power. We are talking about New York City, which has plenty of Global
South in it, but New York City also has plenty of Global North in it.
Just to clarify: I do not think we should get too hung up on the
geographical concept of North/South. We are talking about power. We are talking
about marginalization. Those kinds of things. Anyway, that was my one minute.
MIHR:
From my side, just to add to what Hugo [Van der Merwe] said, I have a
point of clarification, not of justification. The clarification is the transitional
justice policy of the European Union (EU) is located in the EU external action
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 59
service and the EU foreign policy. That is why. It is not an EU target, it is a target
for those outside the EU. By the way, most European countries have transitional
justice polices located in their foreign policies, or in their development agencies
like most Global Northern institutions.
We can criticize that, but yes, that is what I am saying. Not justifying, just
clarifying. The European Union transitional justice policy was never targeted
toward EU countries. I remember, because I was part of the team, of the
consultancy team in Brussels at that time. I mean we were thinking the classes are
full, but at least it is in the external action policy. Hopefully, the next step will be
an internally targeted policy. These are different instruments in the European
Union, very difficult to crack the nut, but thanks for highlighting it.
YANAY:
Uri Yanay from Jerusalem. We talk here about justice. We talk about law.
We missed one word, which is voice. I trust that many of us, when we talk about
restorative and transitional justice, we want people to have the word. Unless I
have the word, especially if they are talking to the ones who harmed them, I am
not sure that they will feel justice. I am not sure that courts or lawyers can take
over.
You need the people to talk to the ones who made them suffer and talk to
them plainly. I think that, in many countries, the authorities would encourage it.
In others, they would not encourage it. There is some interesting cases here,
among us, that we can perhaps discuss later. Thank you.
HONDORA:
I am Tawanda from Humanity United. I have heard people talk of agency,
or the need for agency. I have heard of victims. For the most part, those who were
called perpetrators were the local political establishment. Very rarely do we try
and interrogate who is behind those particular individuals. Who owns them? Can
we talk about restorative justice or transitional justice or whatever we mean by
that without looking at the global, financial or economic system? How do we have
resources in the so-called South? I know that this system has been used in the
sense of resources and in the sense of the human rights violations that it produces.
At the same time, usually it is business. For example in Congo, we can
talk of inter-ethnic or communal violence, but why is there violence in the Congo?
Why is there violence in the Middle East? Without us looking beyond and seeking
to address those particular issues that are more geopolitical, that are about the
economic system, the global economic system, we will always be in this field,
talking about transitional justice day in, day out, decade after decade.
60 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
PARMENTIER:
I wanted to subdivide the key question in saying: is there a gap? Second,
along which lines has the gap been constructed? Third, is that a problem?
Much of what I wanted to say in response to this, which I have heard, has
already been said. I am only going to use one word. I think the word is power.
That is what came up in the discussion so far. The power to define. The power to
use resources. The power to impose agendas. This is not, indeed, a North/South
divide or an East/West divide. As someone said, there is a lot of South in the
North, and a lot of North in the South as well.
If this is the problem, then the next question is, of course, how to
overcome that problem, and there, we have listed questions of agency, voice, and
some other topics. The final reflection is: is transitional justice, at the end of the
day, something other than human rights? I think we need to try to understand what
the main difference really is, or is it just human rights in specific contexts of mass
atrocities, a massive scale of human rights violations. What is the connection
between the human rights and the development and peace agendas? That is
another issue.
I am not sure where Aristotle fits into all of this. In fact, Antony
[Pembertson] has been the perfect advocate for the Greek philosophers, beginning
and end, alpha and omega, or of the final destination. Let us keep it at that. I would
like to suggest our time is up, but I would really like to thank all of you for a
magical morning session, with lots of interesting ideas, and lots of food for
thought. I am sure we can thrive on this for the next two days. Thanks.
II.
DISCUSSION #2
Question: In the evolution of transitional justice, what has been the
contribution of various disciplines to the transitional justice framework?
ROBINS:
The discussion question is, in the evolution of transitional justice, what
has been the contribution of various disciplines to the transitional justice
framework? The notes on the discussion talk about how law, legal scholars, and
human rights, have been seen to dominate both the disciplinary approach and the
normative approach we bring to transitional justice, perhaps alongside political
science, to a lesser extent. They note that disciplines of anthropology, sociology,
psychology, and history, whilst apparently having much to offer, are given much
less attention. We already had a brief epistemological intervention from Antony
[Pemberton] earlier. I hope we can get into that a little bit more.
Is the influence of law and political science appropriate, or should our
current approaches be changed to incorporate other disciplinary understandings?
I think this would also feed into broader discussions we will have tomorrow about
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 61
normative frameworks that we bring when we talk about transitional justice. I will
invite Jo-Marie [Burt] to kick-off as our first animateur.
BURT:
I was asked to discuss the contributions of political science to the field of
transitional justice.
First, I think it is important to recognize that there are two broad streams
of political science literature on transitional justice, which mirrors a broader
division within political science between quantitative and qualitative research.
Quantitative studies, which develop or draw on large-N data sets and reach for
very high levels of generality, tend to be more visible, precisely because they seek
to make broad claims about causality that, presumably, have important policy
implications. The previous panel expressed criticism of this qualitative push in
transitional justice research. I do think that this literature is valuable, as data sets
and large-N studies can be useful in establishing trends and identifying shifts in
political practice. I think immediately of the book by political scientist Kathryn
Sikkink, The Justice Cascade,
21
which documents the existence of a worldwide
trend toward criminal prosecutions of grave human rights violations, or the work
by Leigh Payne and her collaborators, who developed a database of transitional
justice mechanisms worldwide over the past forty years.
22
These studies have
documented the vast cross-regional experience of transitional justice, thus helping
to validate the very field of inquiry we are discussing here today.
But this literature has limitations. Critics have, rightly I think, questioned
the causal relationships inferred from the data, for example, positing that specific
transitional justice mechanisms, or combinations thereof, contribute to
presumably desired outcomes, such as respect for physical integrity rights and
democratic consolidation. This is a problem large-N studies often face: correlation
does not prove causality. Nor do they clearly outline the causal mechanisms that
underlie the causal relationships they claim to have uncovered. We need to better
define causal mechanisms, both for theory building, and for developing clearer
lessons for policymaking.
Qualitative research, which is the second stream of political science
research on transitional justice I want to discuss, is more likely to focus at the
micro, or meso level, and lead us to this type of contextual, grounded analysis that
can help us better identify the causal mechanisms at work. Such research may
21
Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World
Politics (2011).
22
See Transitional Justice Database Project, http://www.tjdbproject.com/# (last visited Feb. 6,
2018). See also Transitional Justice Bibliography,
https://sites.google.com/site/transitionaljusticedatabase/ (last visited Feb. 6, 2018) (providing further
explanation of the Transitional Justice Database Project, as well as detailing sources on transitional
justice); Leigh A. Payne, Tricia D. Olsen, and Andrew G. Reiter, Transitional Justice in Balance:
Comparing Processes, Weighing Efficacy (2010) (analyzing and discussing the findings culled from
the Transitional Justice Database Project).
62 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
focus on single case studies, comparative case studies within a country, diachronic
analyses that seek to understand variation over time, or comparative analysis of
transitional justice in two or more countries. Within a qualitative research
framework, researchers may adopt a variety of methods, including ethnographic
research or process tracing, allowing the researcher to engage in the kind of
granular research that is needed to understand the context and the politics behind
the creation, implementation, and outcomes of transitional justice. We cannot
develop generalizable conclusions based on a single case study, but we can
develop context-rich hypotheses that can then be compared or tested elsewhere.
A “thick,” context-based approach is more suited to help us identify causal
mechanisms.
I think of the book, Radical Evil on Trial,
23
by Argentine lawyer and
political philosopher Carlos Santiago Nino, which analyzes the path-breaking
trials of the members of the military juntas that governed Argentina during the
1976-1983 dictatorship. Drawing on a series of case studies, Nino seeks to
understand why, in the context of transition from authoritarian rule, some
countries prosecuted alleged perpetrators while others did not. He identifies three
types of transition: transition by conquest, transition by negotiation, and transition
by collapse. In the first and third, Nino argues, trials are more likely to occur. In
the second, trials are much less likely, because the previous regime coalition
members retain significant quotas of power and constrain the opportunity to
prosecute perpetrators. In the first, the legitimacy of trials may be questioned
because they resemble “victor’s justice.” In cases of collapse of the authoritarian
regime, it is more viable to hold trials precisely because these power holders have
been delegitimized. The causal mechanism Nino identifies here holds, at least
during the immediate transition period, providing a useful framework for
understanding power dynamics and political outcomes in transitional societies.
The work of Cath Collins,
24
which looks at changing conditions well past the
moment of transition, raises a new set of questions about how conditions evolve
in post-transition periods to favor criminal prosecutions brought primarily by
victims and CSOs rather than the state.
This kind of contextual analysis and process tracing is a very useful way
to think about researching the politics and process of enacting transitional justice,
and the enormous amount of variability that exists, both between and among
countries, and within countries over time. This is clearly the case with Latin
America, where you have some countries that are pioneers in transitional justice,
such as Argentina. Yet there have also been dramatic shifts in transitional justice
policy over time, and other countries, such as El Salvador or Brazil, where there
has been precious little forward movement in transitional justice. In some
countries that have implemented some important transitional justice policies,
there has also been a tremendous amount of pushback. In places such as Peru,
23
Carlos Santiago Nino, Radical Evil on Trial (1996).
24
See e.g. Cath Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador
(2010).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 63
Uruguay, and Guatemala, we see conservative sectors seeking to discredit the
narratives developed by truth commissions, military officers lobbying to prevent
trials from moving forward, and government bureaucracies dragging their feet on
the implementation of reparations or the search for the disappeared. At this
granular level, I think it is imperative to have more in-depth studies that help us
understand the politics of transitional justice.
This is particularly the case in deeply divided societies such as Peru and
Guatemala, two of the countries where I have conducted extensive field research
on human rights prosecutions. In both countries, the old military guard, which still
has enormous quotas of power, perceives criminal trials to be an assault on the
military institution and, perhaps just as importantly, to the historical narrative they
and their allies constructed of military victory. The politics of trials—who
supports them, who challenges them, what trials mean to victims, how they are
viewed by the broader society—raise a different set of questions that is not easily
answered by large-N, macro level studies.
In this sense, I want to suggest that we might consider treating transitional
justice mechanisms not as independent variables, as the quantitative literature
does, but rather as a dependent variable. In addition to the kinds of variations just
mentioned, the mechanisms of transitional justice may look similar on paper, but
in practice they often vary greatly both in terms of scope and implementation.
This variation is worth study to help us better understand the context in which
transitional justice is adopted, how it is implemented, who opposes it, and what
coalitions are able to mobilize to support it. That leads us to ask a different set of
questions. How, why, and in what context, are truth commissions adopted, and
how is their work received by different sectors of society? How, why, and in what
context, are trials against powerful individuals carried out – or not? How are they
perceived by society? Are they opposed by powerful sectors and how does this
affect the conduct of prosecutors and judges? Are there causal mechanisms that
we can identify across case studies that can help us better understand transitional
justice and, ultimately, devise more effective policies that benefit victims and the
broader society?
This requires, obviously, different levels of analysis of transitional justice
mechanisms, whether we are talking about truth commissions, trials, reparations,
or any other mechanism. It requires a micro-level, or a meso-level, of analysis,
depending on the question being asked. It requires walking through the thick grass
to study the political dynamics of transitional justice, the array of political forces
aligned in support of—or against—transitional justice, and how and why this
changes over time. Such an approach urges us to consider the politics of
transitional justice, the power dynamics that shape transitional justice, and the
shifts in transitional justice processes over time.
In the end, the methodology we adopt should be based on the types of
questions we seek to answer. This leads us to the question of positionality that
Chris [Dolan] and Antony [Pemberton] raised earlier. I think of myself as a
scholar-activist, which I think is the case for many of us working in the field of
transitional justice. Personally, I am primarily interested in understanding
64 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
transitional justice not from the perspective of State and nation builders, but from
the perspective of survivors and victims. I am interested in understanding how
important sectors of societies mobilize in support of transitional justice, and why
and how others mobilize to undermine or stop transitional justice. I am interested
in the politics of transitional justice. This means I am interested in how power
dynamics shape transitional justice policies, mechanisms, and implementation.
Politics is about power: who gets what, when and how. It is also about who shapes
and defines the agenda.
The last thing I want to say in the one moment I have left is that I disagree
with the comment—which I think Harvey [Weinstein] raised at the beginning of
the symposium—that there is too much focus on trials in the transitional justice
literature. As someone who works on Latin America, which is leading the way in
domestic prosecutions, I think that there is not too much discussion about trials.
There is too little. Currently there are over 3,000 individuals currently being
prosecuted or investigated for grave human rights abuses in Argentina, Chile,
Uruguay, Peru, and Guatemala. These processes are, in fact, under-studied and
poorly understood.
In my research on criminal prosecutions in Peru and Guatemala, I have
been able to document how indigenous populations, who were the most affected
by the violence during those countries’ internal armed conflicts, have persisted in
seeking justice in domestic courts not only in a retributive sense, but also in an
effort to stake their claim as legitimate citizens of their nations, and to demand
historic reparations, including land rights, that may go some way to addressing
the socio-economic inequities that motivated the conflicts in the first place.
The active participation of survivors of violence and families of the
victims in transitional justice mechanisms has created a space for their voices to
be heard, for them to exercise their rights as citizens, and for them to create new
pathways toward realizing their demands for greater socio-economic equality.
Each of these human rights trials is a universe unto itself, with different power
dynamics, processes, and outcomes. We need more research on the dynamics of
these trials. The tendency has been to focus on the high-profile trials of former
heads of state or senior military officials, which are absolutely essential, but we
may learn more about the broader dynamic of these processes. Contextual,
ethnographic studies and micro-level analysis can, I think, help us develop better
tools to capture the complex reality of the politics, process, and power dynamics
of transitional justice.
HODZIC:
Transitional justice processes in Bosnia and Herzegovina and other
countries of the former Yugoslavia have been decisively and definitively shaped
by criminal justice concepts which were to varying degrees imposed on the
stakeholders and societies at large by two key developments. First, the
establishment of the International Criminal Tribunal for the Former Yugoslavia
(ICTY), the first international war crimes court since Nuremberg and Tokyo
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 65
tribunals. And, second, the lawsuit filed by Bosnia and Herzegovina against
Yugoslavia (later Serbia and Montenegro and ultimately only Serbia) at the
International Court of Justice (ICJ) alleging breaches of the Genocide Convention.
It is relevant to note that both developments occurred in 1993, the year in which
the war in Bosnia raged on, with its worst atrocity—genocide in Srebrenica—yet
to come in 1995. The same year in which Croatia conducted a blitz operation
against the rebellious Serbs, expelling more than 250,000 of them, while
Milosevic’s campaign of ethnic cleansing in Kosovo would only come six years
later. The fact that these two mechanisms emerged while conflict was raging
would have a determinative impact on the views of transitional justice in the
region and resulting policies
The establishment of the ICTY came amidst reports of atrocities
committed by the Serb forces against mainly Muslim Bosnian population as
Milosevic pursued the creation of greater Serbia. It was widely seen as a fig leaf
behind which the international community hid its utter unwillingness to militarily
intervene to protect civilians. However, as the Dayton Peace Agreement ended
the wars in Bosnia and Croatia in late 1995, with the mandate that was given to it
by the Security Council and the force of the highest executive organ behind it, the
lawyers and judges of the ICTY created what was to be the most powerful
presence in the political and judicial landscape of the countries of the former
Yugoslavia
With the power to prosecute those most responsible for mass atrocities
came the expectations from various stakeholders, first and foremost the victims,
but also human rights activists and others. At the same time, it would face
tremendous obstacles from regimes led by those who would eventually end up in
its indictments. It would take twenty-four years for this ad hoc court to bring to
trial 121 persons, some of them the most senior political and military leaders of
the conflict.
Parallel to that, the ICJ lawsuit Bosnia brought against Serbia for genocide
unfolded with all the slowness of a judicial mastodon clearly uncomfortable to be
dealing with the crime of genocide. Ultimately, the judgment issued in February
2007 would mirror ICTY jurisprudence and find that genocide was committed
only in Srebrenica and that Serbia cannot be responsible for committing or aiding
the crimes but was found responsible for not doing enough to prevent it.
We gained mightily from these criminal justice efforts: there are
mountains of gathered evidence and countless facts about crimes have been
established beyond a reasonable doubt. A number of perpetrators have been
removed from our midst, some of them at the highest level of authority like
Slobodan Milosevic or Radovan Karadzic. The judiciary in Bosnia and
Herzegovina is in relatively good shape to continue to pursue the perpetrators of
these crimes for as long as they and their victims are alive. There is a fairly broad
societal understanding that impunity cannot be tolerated even for the crimes
committed in times of war.
At the same time, in these twenty years of criminal justice efforts, the new
normal forged during the conflict, in which the other—in this case members of
66 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
other ethnic groups—was dehumanized to the level of an enemy or a problem that
needs to be removed, has not been significantly affected.
There has been much baseless expectation and careless manipulation
among Bosniaks over what these trials could bring about: from catharsis in the
Serb nation, to the ultimate historical record of the conflict, to the abolition of
Republika Srpska. None of these were grounded in solid precedents, nor did they
ever have any realistic roadmap that clearly charted the causal relationship
between the trials and the desired outcome.
Fueled by opportunistic opinion makers from the media, academia and
religious and political leaders, these expectations often hinged on some big power
suddenly waking up to the vast scope of injustice and suffering confirmed in ICTY
or ICJ judgments and somehow acting to reverse the results of Karadzic’s
genocidal effort. Years have been wasted in the recycling of such myths,
significantly contributed to by the overblown expectations surrounding the ICJ
lawsuit, which in addition to the “definitive truth” about Serbia’s involvement in
the conflict and crimes, was also supposed to produce billions of dollars in
reparations. These expectations were always heavily reliant on the myth of
absolute victimhood as the backbone of Bosniak identity, which in turn paralyzed
any meaningful conversation on reconciliation and anesthetized notions of
acknowledgement and forgiveness. As one of the leaders of a victims’ group from
Srebrenica put it: “I did not quarrel with anyone [with whom I] need to reconcile
and there can be no reconciliation with perpetrators, only punishment.”
At the same time, the Serbs have been sold the same story by their leaders,
but from a different perspective: that somehow the ICTY’s judgments were
designed to criminalize every Serb who has fought in the war, and that they would
be used to somehow undermine the constitutional legitimacy of Republika Srpska
and further weaken Serbia. Of course, every leader always positioned himself as
the only person capable of “defending” the Serb people and saving Serbs from
humiliation and the RS from abolition.
The consequences of this bipolar dynamic have been devastating. The
paralysis of positive social processes to which this dynamic has contributed has
allowed the political elites on both sides to plunder, unchecked by the constantly
re-traumatized populace. The younger generation, which is always the most
important agent of social change, has either been forced into thinking about
leaving or has largely been infested with most virulent forms of nationalism and
hatred, often growing up in the “ethnically pure” communities forged by the
conflict. Civil society has largely atrophied, burdened by donors’ agendas and a
lack of legitimacy among the people, and thus bereft of mechanisms to pressure
decision makers into action, factors which have contributed to efforts like
RECOM regional truth commission faltering.
25
Militant extremism is on the rise
25
COALITION FOR RECOM, http://recom.link/ (last visited Feb. 8, 2018) (describing RECOM as
“a regional commission for the establishment of facts about war crimes and other serious violations of
human rights committed in the former Yugoslavia from January 1, 1991 until December 31, 2001”).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 67
in all ethnic groups, actively fanned by hate speech in the media and on social
media networks.
This dynamic largely obliterated any political will on the part of the
leading parties in all groups to pursue a genuine transitional justice process. This
is best reflected in the fact that draft laws about a truth commission (2006) and a
comprehensive transitional justice strategy document (2008) were effectively
killed in the parliament after being drafted by interested civil society groups,
usually at the urging of the United Nations or international interlocutors like
USIP. Whatever political will existed would be eroded by objections from
victims’ groups invested in the previously described narratives. Reparations
programs were designed exclusively along ethnic lines, always prioritizing war
veterans and invalids from their own group, while victims of atrocities were
mainly given handouts through associations closely affiliated with those in power
or dealt with through other legislation. The only relative success story of this kind
was the state-level Law on Missing Persons, which established a body charged
with the search for the forcibly disappeared.
Beyond such indirect influence, the ICTY also directly intervened as in
the case of the initiative to establish a truth and reconciliation commission in
2001. The initiative was abandoned after the ICTY President told the convening
forum that the ICTY had primacy over any investigative work that would address
war crimes or crimes against humanity and that the commission must not in any
way infringe upon the court’s mandate or jurisdiction, or even be similar to that
of the of ICTY. This message brought tremendous pressure from victims’ groups
and politicians on the conveners to drop the initiative, which they duly did.
Lastly, the impact of the ICTY on the policies of the international
community, which had (and continues to have, especially through the EU
accession process) a crucial influence on the political dynamics in Bosnia was
significant. Its influence manifested through the fact that the court’s political and
financial capital was invested in two directions: through the EU’s “policy of
conditionality,” which established as a key condition for EU accession of Balkan
countries their cooperation with the ICTY. This effectively separated the
obligations of these States to address the past abuses from the rule of law
framework—central to the accession process—and reduced their obligations to
the question of whether they have arrested ICTY fugitives or not and whether they
supported the establishment of local capacities to prosecute war crimes, most
notably through what is known as the Bosnian war crimes chamber. The latter
concern was primarily motivated by the ICTY’s need to transfer a number of cases
in order to meet the deadlines of its completion strategy. The issue of a genuine
transitional justice process, often itself reduced to the notion of reconciliation, was
left to civil society, which has done a great deal of good work, but largely isolated
from the main political discourse, disconnected from the key constituencies
invested in the issues, and ultimately driven to near irrelevance.
This year we will see the ICTY definitively close its door and we have
just seen a last-ditch attempt to apply for a revision of the 2007 ICJ judgment fail.
The era of criminal justice in Bosnia and Herzegovina is now officially over, but
68 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
its legacy on the ability of the society to reckon with the consequences of atrocities
committed during the war will linger for years to come. It has given us plenty, but
it remains to be seen if we will be able to recover that which it has taken.
LIRA:
For psychologists and psychiatrists (and other medical doctors),
professional concern regarding human rights violations under dictatorships, civil
wars, and, then, the transition to democracy developed as a result of massive and
systematic violations of human rights. Truth, justice, reparations, and memory
connected the individual experiences to political processes, in efforts to overcome
the political, social, psychological, and moral consequences of political violence.
Different countries, different conflicts, and different roads to face the past
provided mental health professionals with diverse and variegated challenges.
I have worked in the Chilean dictatorship as clinical psychologist for
victims under the umbrella of Churches (Catholic and Christian Churches)
beginning in 1977. In 1975, in Chile, a psychologist observed that the victims who
consulted him experienced a situation of disintegration characterized by distress,
disorganization, and confusion, and a great difficulty to feel as though they were
living. It seemed to him that the victims’ mental state was related to a breakdown
of the keys to the knowledge of oneself, of others, of situations. Sometimes
victims were tortured, imprisoned, and then exonerated, before being exiled for
several years with their families. Some of them returned to the country alone or
with family members. Other victims may also be the relatives of executed or
disappeared persons. Most of them had suffered one loss after another: loss of
rights, loss of a job, loss of physical integrity, loss of peace and stability of the
family, and the loss of the capacity to determine one’s life course. In conditions
of extreme political repression, traumatic situations tend to include attachment
disorders, mistrust, and fear in social relations.
Professional observations revealed that detention, torture, persecution,
loss of loved ones by execution or disappearance, exile, among other situations,
triggered complex somatic and psychological processes caused by trauma, loss,
and extreme suffering. Living conditions under conflict affected families and
particularly children. Although the source of the disturbance was socio-political,
its impact and consequences depended on the personal and social resources of
each person, his/her support networks, health conditions, age, and the capacity to
understand what happened and make decisions to protect the lives of family
members and that of his/her own.
In the transition from dictatorships and political conflicts to democratic
regimes, commissions were created to establish the “truth”—what really
happened, the existence of systematic torture denied by the authoritarian
regimes—and to recognize the victims. Truth commissions (in Latin America and
elsewhere) have relied on testimonies of victims and on the verification of facts
and circumstances related to human rights violations, that is, establishing the
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 69
legally required conditions for recognition of the victims, according to the
mandate of each commission.
Reparation policies apply to officially recognized victims. In the case of
Chile, public reparation measures of various sorts were established by law.
Reparation measures were adopted for the relatives of the missing and executed
persons, people who were dismissed from their jobs for political motives, peasants
who participated in land reform and were expelled from the land for political
reasons, and Chilean exiles returning to the country. Political prisoners and torture
victims were added to this list in 2004. Reparations usually consist of money
compensation (lifetime pensions, or one-time indemnities), educational benefits
for family members, health services and other benefits.
The measures usually failed to consider differences in the type and
consequences of victimization. Traumas and losses, which are objectively and
subjectively different for each person, are not considered. This contrasts with the
reparation measures ordered by the courts and especially by the Inter-American
Court of Human Rights. Judicially-ordered reparations including symbolic
measures, social, psychosocial, and medical actions, and indemnities, among
others, more frequently considered the circumstances of victims and their family
members.
Attention to the victims of trauma, losses, and suffering has been a
principal objective of the reparation and rehabilitation programs in Chile, through
the Programa de reparación y atención integral de Salud or PRAIS, and Colombia,
through the Programa de atención psicosocial y salud integral a víctimas or
PAPSIVI.
26
Health reparation policies have included medical and psychological
services for victims and family members.
Public and political recognition of violations of human rights and
recognition of victims is very important as part of the reparation process.
Likewise, it is important for government authorities to recognize the pain and
suffering caused by rights violations and to express public regret, even asking for
forgiveness, from the victims. In turn, judicial investigation of the crimes and
punishment of the victimizers, eventually demonstrating, at least symbolically,
that nobody is above the law, is an indispensable dimension for the subjective
well-being of the victims.
The effectiveness of reparation policies requires victims to “feel
repaired.” The actions taken in accord with reparation policies cannot, by
themselves, overcome the pain and loss occasioned by irreparable harm that
people often experience in the solitude of suffering. The recognition of the
injustice experienced, of the traumas and losses of the victims, can give rise to
26
PRAIS, MINISTERIO DE SALUD, GOBIERNO DE CHILE, http://prais.redsalud.gob.cl/ (last visited
Feb. 6, 2018); Programa de atención psicosocial y salud integral a víctimas – PAPSIVI, MINISTERIO
DE SALUD, GOBIERNO DE COLOMBIA,
https://www.minsalud.gov.co/proteccionsocial/Paginas/Victimas_PAPSIVI.aspx (last visited Feb. 6,
2018).
70 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
forms of emotional and moral elaboration that allow them to partially overcome
the victimization and to reintegrate into social and political life as citizens.
MOUDDEN:
When I received the invitation to attend this workshop, I realized that my
life trajectory personifies the issues put forward by Laurel [Fletcher] and Harvey
[Weinstein] in their introductory note concerning the gap between North and
South, and practitioners and academics in the field of transitional justice.
Morocco, where I come from, is categorized as South, and Michigan, where I
completed my doctorate degree, exemplifies the North. My profession has always
been a university professor of Political Science at Mohamed V University in
Rabat, but I was a member of the Moroccan Equity and Reconciliation
Commission during the years 2004-2005 and have been grappling ever since with
the questions posed for this workshop.
My first reaction to the topics of our panel is to reiterate the common
observation that the South produces the experiments in the practice of transitional
justice, and that the North is, to a large extent, the source of the academic work
on the subject. This view however, should be nuanced by the fact that academics
originating from the South teach and publish in the North, and that practitioners
from North participate in the southern practices of transitional justice as
consultants, advisors, trainers, experts, and other capacities. But, overall, the gap
remains a reality. The question of why are the Southerners not producing more
academic work is legitimate, but equally legitimate is the question why the
Northerners are not resorting more to the practice of this form of justice.
I will not address the latter question because it is not the main focus of our
workshop. But, I want to share with you my main idea on the relationship between
practice and academic work. I think that our assumption of the interconnection
between the two domains is exaggerated, and that while there are mutual
influences and shared topics of interest, transitional justice as a practice and as an
academic exercise retain their respective autonomies from one another. The goals,
the dynamics, methods, strategies, stakes, and tensions of each domain are
distinct. We should, therefore, expect that the answer to how to improve the
academic work on transitional justice, as we are asked to address in this panel, is
distinct from improving its practice. I do recognize, however, that autonomy here,
like elsewhere, is, of course, relative and we should continue to look for the
appropriate approaches to thinking about these interconnections.
The emergence and development of transitional justice as an academic
discipline must be contextualized in order to grapple with the topic of our panel.
As a paradigm, transitional justice is inseparable from the transition paradigm that
was very influential in the discipline of political science in U.S. universities since
the early eighties. It was conceived and articulated first by political scientists
specializing in Latin America. In its heydays, the transition paradigm was
constructed on a linear notion of a peaceful transition from authoritarianism to
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 71
democracy based of rational choices embraced by reformists strategically
positioned in the state apparatus and moderate leaders of the opposition.
Transitional justice was conceived to help in this peaceful democratization
process. Like other paradigms, when transitional justice travelled, from Latin
America to Eastern Europe, South Africa, and other territories, it was reshaped by
new geographies and historical and political contexts.
But the promise of democratization did not reproduce the trajectory
conceived by the original transition paradigm, and with the accumulation of a
wider variety of experiments in regime change and regime re-production, the
transition paradigm, which failed to capture the unexpected itineraries of politics,
is now marginal. Competing for the attention of political scientists currently is the
paradigm of hybridity, where a regime can represent a type that is neither
democratic nor authoritarian, and unlike the transition paradigm, is transiting
nowhere, but remains hybrid for an undermined duration. If we accept hybridity
as an empirical observation, the idea of transitional justice without the promise of
democracy, needs to be considered. In other words, we have to be skeptical of the
original expectation that transitional justice is a temporary track and that ends with
full democratization, at which point it is replaced by “normal” liberal justice. If
democratization does not happen, or is not expected to happen anytime soon, then
transitional justice should not be considered transitional, but permanent,
addressing specific conditions in non-democracies, the most relevant of which are
post-authoritarianism, post-conflict, and settler-colonial justice.
The issue that remains undertheorized in the literature of transitional
justice concerns whether the justice sought in these situations is fundamentally
different from “normal” liberal justice. By emphasizing the temporary condition
of transitional justice, as “transitional,” it was marginalized from the theoretical
and philosophical conversation on the notion of “justice.” If it is only transitional,
if it remains in unresolved conflict with the liberal principles of justice, then it is
not normal justice. This argument explains, in my view, the absence of the notion
of transitional justice from the philosophical literature on justice.
I suggest, in order to remedy this marginalization, to revisit the
philosophical arguments on justice, and to seek to find the place of transitional
justice in the center of the debate, not at its margin. A helpful entry to this subject
is the discussion proposed by Amartya Sen in his book The Idea of Justice,
27
where he proposes to define justice not on the basis of what it promises to achieve
ideally, but on its ability to correct the existing injustices in practice. I believe that
this avenue should help eventually in repositioning transitional justice as a
“normal” justice, not merely as a transition.
Philosophy can provide the academics of the South with a louder voice
than social science. The latter are too costly and over-structured as academic
disciplines for underfunded and unstructured university professors from the South
to take part in as equal partners in the global conversation on transitional justice,
or on other academic topics for that matter. Other sources worth considering for
27
AMARTYA SEN, THE IDEA OF JUSTICE (2009).
72 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
balancing the North-South conversation on transitional justice are fiction and
cinema.
Finally, I consider that the North-South dialogue traditionally has been
characterized by an inherent assumption of a fundamental distinction between the
conditions of justice in the South versus the North. Injustice is largely located in
the South, which necessitates transitional justice. In the North, liberal justice is
considered adequate enough to address the region’s injustices. But this
assumption, which at times is expressed with arrogance and a sense of moral
superiority, neglects the injustices of the North that are dismissed from the start
by the liberal judiciary systems. War crimes for instance, not only of the distant
past, but those waged currently by the liberal North, remain unaddressed and,
therefore, unpunished. Recognition by academics and practitioners from both
North and South of the reality of impunity as a universal condition, not only as
phenomenon restricted in the South, should help in bridging the mental gap
between geographies with shared human dilemmas and tragedies.
PECCERELLI:
Twenty years following the Peace Accords, Guatemala is still in the thick
of the transitional justice processes of clarifying and pronouncing the painful
truths of the conflict and advancing accountability processes. Evident links
between current government officials and crimes committed during the conflict
illustrate that there is still a long process to undergo to disassemble the power
gained during the conflict and challenge the impunity (and in some cases
immunity) that lingers. Holistic approaches to transitional justice mechanisms,
including searching for the disappeared, that place truth at the front are valuable
acts of resistance to the enduring impunity and persistent revictimization of
victims and their relatives that occurs as long as there are efforts to reach the truth,
accountability, and redress. In Guatemala, we have seen that forensic
investigations are integral to and complement transitional justice processes, as
scientific inquiry supports the justice system in its path to challenge impunity,
promote accountability, encourage democracy, bolster rule of law, and uphold
human rights, while also accompanying and acknowledging the rights of victims’
families to truth, justice, and reparations through locally owned transitional justice
processes.
The Forensic Anthropology Foundation of Guatemala (FAFG)
28
accompanies the survivors and the families of the victims of Guatemala’s internal
armed conflict at their request and with their trust to uphold truth, memory, and
justice. Forensic investigations are an important mechanism to clarify history,
identify victims, and provide evidence to support accountability and reparation
initiatives. FAFG employs forensic anthropology, archaeology, genetics, and
victim investigation techniques to recover, analyze, identify, and return
28
FUNDACIÓN DE ANTROPOLOGÍA DE GUATEMALA, https://www.fafg.org/ (last visited Feb. 8,
2018).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 73
individuals to their families so they may be buried with dignity and according to
cultural traditions. FAFG provides families with the highest possible level of
professionalism and scientific certainty in the identification of their loved one.
The forensic evidence bolsters legal prosecutions in domestic judicial processes.
Especially in cases of the disappeared, the family members know no relief for
every day that the whereabouts and situation of their loved one is unknown—the
crime is permanent and perpetual.
FAFG’s unique and extensively developed methodology is now sought after
internationally, as other post-conflict countries with disappeared victims begin to
evaluate the possible options to search for and identify their loved ones. Now, it
is widely known that FAFG has solidified through years of trial and error,
evaluation, and success, the most holistic and integrated methodology to identify
and dignify the deceased and disappeared. The experience and expertise that
FAFG brings to its work in Guatemala is an empirical example of transitional
justice initiatives that are propelled by local level advocates, informed by local
context, and responsive to culturally and socially specific needs.
As we have witnessed and experienced in post-conflict Guatemala, the
inclusion of forensic investigations in transitional justice frameworks strengthens
the pursuit of accountability and justice, as well as broadens the means of truth-
telling through scientific and rigorous truth-seeking methods. The long process of
searching for the disappeared parallels the lengthy transitional justice process,
both of which require sustainable and reliable support for their duration in order
to properly accompany the survivors, victims, their families, and society, as they
reconcile the conflicted past and build a foundation for a more democratic and
peaceful future.
ROBINS:
Thank you Fredy [Peccerelli] and thank you all the animateurs. Very
briefly, I think it is interesting that we had a couple of people talking about how
important the law is, when I think there are many of us who think transitional
justice is too legalistic. Maybe that is the discussion we can have. There was
discussion about psychological support and transitional justice has always talked
about a narrative of healing and, now, about victim-centered approaches. Yet,
often these aspects are not central to current discussions; the psychological is
largely marginal to the principal discourse.
We had a discussion about the technical discipline, the forensic. That even
though it is technical, it can be victim-driven; it can be highly reparative; and,
going back to the idea of power and agency, it can be empowering for victims. I
think that is very interesting. Abdelhay [Moudden] talked about culture and art.
The idea that they can be drivers, communicators of social change. I think that is
very interesting. History was not mentioned, and that is something that is
mentioned. Sociology is somehow implicit, I think, through what we are saying,
but also what was not discussed explicitly. Who would like to kick off?
74 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
PEMBERTON:
Yeah, I would just like to pick up a point that Abdelhay [Moudden] made.
In fact, we run a project that is based on Amartya Sen’s distinction between niti
and nyaya, two Sanskrit conceptions of justice. Nyaya focuses on the reality of
injustice, and niti, like you say is the Rawlsian, idealized version of justice. That
also brings me to another philosopher, Judith Shklar, who wrote a fantastic book
in 1990 called The Faces of Injustice.
29
I still think that is something that is also
very relevant today. She says that we tend to think of justice and injustice as polar
opposites, as two endpoints of one dimension. She calls upon us to think about
injustice as an independent phenomenon.
Justice, sometimes can do something about injustice. Justice, like the law,
can do something about it, but quite often, justice introduces other values, which
equal well-oiled social functioning, that function to the detriment of the ability of
justice to combat injustice. I think that is a problem for concepts of justice that I
have wrote about myself—for restorative justice, because restoring situations
might not fit very well with doing justice. Maybe that is at the heart of the problem
with transitional justice as well.
Restorative justice already centers on the endgame of doing justice in a
particular way. Otherwise, we are still transitioning towards that. I think that the
work we still need to do in this area could be very well-inspired by Judith Shklar’s
thoughts in 1990.
ROBINS:
Thank you, Antony [Pemberton]. Skhlar, of course, also wrote a book
called Legalism
30
about the distancing of law from the social environment from
which injustice emerges.
ROHT-ARRIAZA:
I do not know if I find myself in the position of defending law and lawyers,
but I suppose I will. I am usually on the other end, saying: “Oh, don’t do that.”
Look, from a different perspective, I think the problem is not law and lawyers; the
problem is there are lots of different trends within lawyering. The trends that are
most useful are the ones that have been least used. When I think about what
lawyers do, it is evidence. They can help figure out how do you know what you
know, and how much of it you have to know. But, then they build institutions. I
think it has been the institution-building tendencies of lawyers that have given rise
to a lot of the critique.
We build beautiful courts and then they do not work. We are like: “Oh my
god, what happened?” I think there is another trend within law that is actually
29
Judith N. Shklar, The Faces of Injustice (1990).
30
Judith N. Shklar, Legalism: Law, Morals, and Political Trials (1986).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 75
useful, and that is cause lawyering. I mean there is a huge literature out there on
how lawyers do and should interact with communities: they do and should
represent, but not take over. Do and should work with community dynamics. We
teach this to our students in courses on public interest law, but somehow, they do
not come in when we are talking about these kinds of issues.
I just wanted to make a plug for “it’s not all law and it’s not all lawyers.”
Lawyers focus too much on institution building, because lawyers know how to
do institution building. We are just not very good at figuring out what to do with
it once we have built it.
MIHR:
I just wanted to share a brief observation from the first and second
discussions and, since we have to summarize this somehow this afternoon, I will
do an interim observation. What I find very, very intriguing and interesting in this
discussion is the idea about power. Because what I have learned in the first session
is that, in terms of transitional justice, the power is often with the strongest. It
usually remains state-centered. Actually, in the second discussion there was the
claim that we should transfer some of this power—not all. Probably not all,
because we need the institutions. But transfer some of this power to the victims
or the people in need, who actually suffered from the crimes and the injustice. As
we discuss it all, transitional justice is about power sharing.
Why am I saying this? It is because this session is about the evolution of
transitional justice, and maybe that is one reference point, and I would like to hear
a little bit more about it. If I am not completely mistaken, we are moving in this
direction. You brought in the hybrid models, which are not only discussed in
Northern Africa, but also, I have heard of a lot in Latin America. This hybrid idea,
twenty years ago, was not even on the table. Maybe that is part of the evolution:
sharing power, moving power, whatever. Sharing or moving power from one part
to the other, from the state to the victim, or from state to the citizen.
FLETCHER:
I had a couple of things I wanted to say to pick-up on the prior discussion
as well as this one. One of them, it seems to me that we are talking about one of
the paradoxes of human rights work, which is that the State is both the actor—the
criminal that we are trying to restrain—and that the State is also the care giver or
the keeper of welfare that we want to extend or protect.
When we are talking about law and we are talking about power, we are
talking about the abuse of power and the deployment of power, and who has the
opportunity to shape the ways and set the agenda, if you will, for how the State
deploys its power. It seems to me, to bring it back a little bit to this conversation,
when we talk about the State as the criminal, the criminal actor, law has a lot to
say in terms of how to restrain State power. That plants us firmly in international
criminal law and this desire for trials. However, when we talk about the State as
76 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
the care giver or the provider of welfare, we want the State to do things like
reparations. We want the State to do things like respond to victims. We want the
State to have the forensic capacity to identify the remains, to return the remains
to the family, right? Those are all things that we think of as being the failings of
the State when they fail to provide, and NGOs often step into that space. They
also have more trust with victims. Our end goal is to get the State to respond to
these needs.
Part of the problem, as Fredy [Peccerelli] pointed out, is that, of course,
you have the same actors. You have holdovers. That is what gets us frozen in these
intermediate points in transitions where we yet do not have an idealized new
democratic State that is going to stop being a criminal and start fulfilling its
caregiving role.
I think I just wanted to add that observation to provide some texture about
the ways in which we are talking about transitional justice concepts and the tools
that we want to use to engage in these fundamentally different projects.
Finally, Jo-Marie [Burt] talks about being an activist scholar, and I
recognize many of us in the room share that characterization. I also recognize
Abdelhay’s [Mouidden] caution that scholarship is different than practice, and
scholarship should not always be a justification for policy.
I want State actors to listen to the Jo-Maries, when what activist scholars
are advocating is grounded in the victims’ experience. I do not want activist
scholarship to be used in other contexts where it is going to be misused. A part of
that is just the nature of knowledge production. Once we put it out there, we
cannot control how it is going to be used.
I hope we can invite conversation about ways in which we can better
deploy scholarship. It cannot be that scholarship has nothing to say for policy. I
do not think that was what your intent was, but I think we need to think about how
we connect those things up.
TENOVE:
Thank you very much. Chris Tenove from University of Toronto. I want
to pick-up on what Abdelhay [Moudden] was saying about this idea of the
transition of regimes and the question of whether we are at hybrid regimes and
other sorts of things. One area at which I have been looking more recently is some
of these transitional justice challenges. Parts of autocratic regimes are able to
transnationalize themselves and affect disparate populations in terms of what they
can say elsewhere. They can target civil society within their borders and beyond.
It gets to this question of who has the power.
I think I am bringing up this, in part, around what new, or what disciplines
maybe need greater voice in transitional justice. I think really being able to pay
attention to the ways in which communication changes and State regime changes
are now making it the nation or the political community that is being transformed.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 77
It has become much more diffuse and hard to get at and broken up into different
bubbles than it was before.
I think that things like truth commissions and other mechanisms are really
going to face much greater difficulty in this hope of bringing along large publics
than they have in the past. I think that is one area that a lot more work could be
done in. I am also interested in how this goes to the practitioner, academic, and
some of the discussion we had in the first discussion about being a lot clearer
about the kinds of resources that come with partnerships. Maybe along
North/South lines, but also academic, non-academic, international organizations,
and local organizations. Because, I think, in different contexts, there is a real range
of resources that could be alternately of assistance and extractive.
I am still looking for a good way of conceiving of those research
exchanges and really being able to identify when you are there and able to help,
coming from different areas and deciding who you are helping. Hopefully, we can
continue to talk about that as well. Thank you.
SÁNCHEZ:
I think a question emerges from the idea that there is an evolution, but can
we even consider that there is an evolution? When the peace processes started, I
was sharing a panel with a political scientist, a professor who had been working
for negotiated peace in the country for many years. I was so excited because we
were finally trying to make peace with the FARC in Colombia. I asked him,
“Professor, do you think we’re going to finally make it?” He said, “Maybe if you
lawyers allow us to do it. Let us do it.”
Because, for him, the idea of interdisciplinarity was a bad idea. We are all
departing from the idea of evolution, but for some it is involution. I think, for me,
interdisciplinarity is great. I think it is evolution. Nothing better than a bunch of
smart people looking at a problem from different angles and perspectives and
trying to contribute to solutions. That is great.
On interdisciplinarity, there are at least two points to be considered. First,
psychologists and lawyers and political scientists and sociologists have made a lot
of contributions to the scholarship and literature. Then, when it gets real, when a
country has to make decisions about what to do, the transitional justice realm is
always asking for institutional change and rapid change. Law becomes so
important that many of the other disciplines get left behind, because you need
something that can prove that you changed, that there has been movement: “Let
us make a law. Let’s make a new institution.” I think there is something here, in
this phenomenon, to be examined.
Second, as many and more people get involved in the process, we raise
expectations of communities. For example, I have seen communities in my
country, villages that have been studied by every profession in the book. They
have had scholars from psychology, from law, and so forth. In the end, all of these
scholars come and they promise a lot. The communities expect that they will
follow through.
78 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
OEUNG:
I would like to contribute an idea from a practical point of view, again.
Here, we talk about evolution. I would like to add culture is also important. Given
the local context, we talk about victims and we have different types of victims.
For example, religion plays a role. In Cambodia, we are 90 percent Buddhist.
NGOs have used this approach to engage both the victim and the former
perpetrators. We have seen some success and some failures, but it is still an
ongoing process.
Given the absence of a formal truth and reconciliation commission, NGOs
that gather evidence of past crimes, document these crimes for study by future
generations. I think the NGO role should be something included in what we talk
about with transitional justice in order to have different perspective, but also to
engage a different dimension of it. Especially, I would like to stress here, in our
context, NGOs have played a big role, especially human rights NGOs that support
victims.
HACHED:
I wanted just to react to the hybrid state idea. I have a problem with this
notion, a big problem. Any State is a hybrid State, in the end, if you want to be
honest. If we look at any State, the role of the media, of propaganda. In the United
States, there is the problem of racial injustice. People who are in prison are, in
general, poor people. They cannot have a good lawyer, et cetera. Any state is a
hybrid state.
If we start to use this concept of the hybrid state, then we dilute the
responsibilities, because everybody is in the same bag, I would say. Maybe we
should have criteria. For me, we are a democracy, or we are not a democracy.
Sure, we can be a democracy with some failures, and we can be not a democracy,
but have some instruments, interesting instruments that empower people. But we
should have a line, in my opinion.
DESTROOPER:
Thank you, I just wanted to follow-up on a point Refik [Hodzic] touched
upon, which is the idea that transitional justice processes shape people’s
understandings of justice. I think this is really important if we are thinking about
interdisciplinarity, because as Naomi [Roht-Arriaza] also pointed out, it is not just
the sort of law in itself that is bad or problematic, but it is certain understandings
and how we interact with certain understandings.
I am thinking about the fact that, in the first session, a couple of people
pointed out that criminal justice processes in particular did not necessarily have
to be only the backward-looking mechanisms that we often think they are. True
legacy projects like in the case of ECCC using court documents for awareness-
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 79
raising victim participation. There is a lot that can be done that is forward-looking
as well.
However, and I am doing some work on the ECCC now, I always think
about one sentence which is in an Open Society Foundation report on the ECCC,
which suggests that in true victim participation, participants become ambassadors
of the transitional justice process when they return to their communities. I think
this is quite interesting, because there has been very little thinking about what the
causal mechanism would be that causes this empowerment or this
ambassadorship. What kinds of concepts of justice or human rights we are
presenting people with that they then take back to their communities?
I am doing a project right now where I am tracing what the priorities of
ECCC have been, and as we all know, criminal justice tends to focus on only
violations of civil and political rights. This is also the case for the ECCC. Even if
there have been massive economic and social rights violations under the Khmer
Rouge, and what I see is that, if you look at the 50 most important transitional
justice and human rights NGOs in the country, they are almost a carbon copy of
this discourse. Also, their only focus is on civil and political rights violations, and
with the exception of land rights, there is hardly any mention of any economic,
social, and cultural rights violations.
I think this is particularly problematic, because it lets States, duty-bearers,
off the hook if they violate these economic social and cultural rights going
forward. In that sense, I think there is really a need to work together more with
other disciplines to look at what the effect of exposure to certain discourses is
within the context of the transitional justice process, and how this can affect the
viability of the process in the long run.
I would totally agree with Jo-Marie [Burt] that there is not too much focus
on criminal justice, but just that it has been a very legal focus on criminal justice,
and that we really need to broaden this. Thank you.
HONDORA:
The question is what contribution other disciplines have made to the
transitional justice framework. I think there is broad agreement that it is mostly
the issues of criminal trials. I think that is a given. There is a question, though,
which is: why is that the case? If historians were brought to the table, if
sociologists and anthropologists were brought to the table, what would that look
like? Would those with the power and the agency permit that?
The reason for me, I think, is simple. The moment you go beyond the
immediate—catching and trying an individual who has lost power (and that is
why you are able to get hold of them)—and start to look at the root causes of
conflict, you are now threatening the very foundations of what the world, in its
current framework, is built upon. Colonialism is one of them; rule by the minority
is another; the global economic infrastructure is another.
80 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
Whether or not we would be able, as justice practitioners and not just
lawyers, to challenge that, is tough. In my view, this is why, under the current
framework, you need justice. Grab hold of them, truth commission, domestic
criminal trials, as well as the international criminal trials, and that is the end of it.
OOLA:
I just want to emphasize a very important challenge that Fredy [Peccerelli]
mentioned. I also want us to clarify where the problem is. In particular, the
demand to fit what we are doing into the transitional justice framework. At the
Refugee Law Project, as Chris [Dolan] said, for a very long time, we were doing
a lot of the things that were in the 2004 U.N. report.
31
In 2004, when the U.N.
Secretary-General came out with a report, which defined transitional justice very
broadly,
32
we could see ourselves in it and start to appreciate that a lot of the things
we were doing were actually contributing towards—whether it was research,
advocacy or documentation—transitional justice goals.
The question that I want to put to Fredy [Peccerelli] is whether he saw the
challenge of fitting their work, which is a very important branch of work on
forensic science, within the transitional justice framework and linking it directly
to a specific transitional justice mechanism, which was prosecution in the case
you mentioned. Thank you.
SONGA:
Thank you. Just a brief contribution around the conversation on the
dominance of law within transitional justice. I think also we need to consider that
the dominance of law is a reflection of the fact that we are reorienting discussions
around transitional justice less on the aspirations and ambitions for what we want,
as on the outcomes of the processes put in place. We tend to have instruments and
policy frameworks on transitional justice framed in a manner that anticipates non-
compliance and non-cooperation, particularly from States. Therefore, you have a
situation in which the language of the texts, these instruments, tends to be oriented
in terms of what can ultimately be justiciable.
Recently, we had a conversation and we pushed through a general
comment at the African Commission on Human and People’s Rights about redress
for victims of torture and other ill treatment. One of the most difficult parts of that
conversation was how to put the language of healing within that general comment.
The main thrust behind that conversation was: “How do we ensure
compliance with subjective emotional healing?” If a State is non-compliant, what
do we do to make the State compliant? How can we argue this as a legal issue? I
31
U.N. Secretary-General, supra note 1.
32
Id. at 8 (defining transitional justice as “compris[ing] the full range of processes and
mechanism associated with a society’s attempts to come to terms with a legacy of large-scale past
abuses, in order to ensure accountability, serve justice and achieve reconciliation.”).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 81
think that is also the back end of the question. How we have become more about
anticipating non-compliance and non-cooperation with these objectives, and less
about defining, in particular, what the aspirations and ambitions are.
MOUDDEN:
There is a question that is related to power, which is: who has the power
to assess the performance of what we are practicing, or the rigor of what we are
producing? I think that it is very important, again, for me to disassociate the two.
Those who have the power to assess the performance of an experiment in
transitional justice, or to be the people who are there—the people who are the
victims and the people who are within the policy that is concerned by this
injustice.
I mean, primarily, when it comes to performance at the intellectual level,
I think that you do have standardized rigor. This actually eliminates so many
works, because the standards for rigor are being set by the academic journals, by
the publishing houses. For example, I am here now, but I was supposed to attend
the book signing of two colleagues of mine in Morocco who are involved in
transitional justice and who wrote wonderful memoires. But, their memoires were
not accepted in any publishing house, because most of the photographs that they
contained did not have the authorization of the people who appeared in them.
The point is that I describe two different standards and the performance
of transitional justice is highly contextualized. The people who are participating
on the ground do understand their contexts. When we judge performance from the
outside, we somehow tend to forget the context.
I had a discussion with a colleague of mine from UCLA, who is not here,
right? She was highly critical of the Moroccan Equity and Reconciliation
Commission,
33
justified because, as she said: “You did not prosecute the
perpetrators.” Somehow, I got very upset. Her objection proceeded as though I
had not done enough thinking to understand the context of what we were doing.
Then I reacted angrily, telling her: “Why don’t you prosecute Bush for the crimes
he committed in Iraq?” All of the sudden, she starts telling me: “You know in
order to do that, there is this context of . . . .”
I say this is the point. Understanding the context is important, because, of
course, practitioners do make mistakes. Of course, they can be coopted. This
cooptation exists, but we need to make this effort of understanding the context.
33
See EQUITY AND RECONCILIATION COMM’N, FINAL REPORT: VOLUMES 1-5 (2009),
http://www.cndh.org.ma/an/rubriques/documentation/publications/report-equity-and-reconciliation-
commission-ier.
82 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
ROBINS:
The discipline that you bring to bear affects the agenda that emerges from
transitional justice and affects how you understand justice, or how you can let
victims and others define what justice is.
III.
DISCUSSION #3
Question: What has been the relationship among transitional justice
research, policy advocacy, and practice?
PEMBERTON:
It is my pleasure to moderate the third session. We are going to be talking
about gaps between academia and practice, which, hopefully, might lead to some
transdisciplinary bridges being built, because transdisciplinarity recognizes that
knowledge is also produced in many areas other than in academia. I have a very
strong sense that that, in particular, this applies to the field of transitional justice.
I will ask the first speaker of this session, the first animateur, Salma Kahale, to
take the floor.
KAHALE:
I work with a small Syrian organization called Dawlaty
34
founded in 2012
within the context of the Syrian revolution. Dawlaty means “my State.” We
wanted to create the space, tools, and opportunities to envision our State. Our aim
is that all civil society actors, in particular young people, can become active
participants in achieving a democratic transition. We work in three areas which
we believe are necessary for a democratic transition: civic education, transitional
justice, and community organizing.
We see transitional justice as a necessary element of democratic transition,
as it can be an opportunity for redefining the social contract. We see transitional
justice as transformational justice, using the conflict as a transition towards setting
the foundations for a new inclusionary, participatory society. Thus, within this
view of transitional justice, we have focused on how we can build capacity and
prepare for the participation of civil society, and of young people in particular, in
transitional justice processes.
The way in which we have thought about this “preparation process” has
shifted as our assumptions regarding transition have changed. While we have
always envisioned a democratic transition to be something long-term, we (as well
as many Syrian and non-Syrian actors) initially envisioned a situation in which a
post-Assad, transitional government would lead to a post-revolution Syria. With
34
DAWLATY, https://dawlaty.org/en/ (last visited Feb. 24, 2018).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 83
this assumption of a clear transition, many Syrian organizations with international
support set out to prepare for such a transition. This was mainly done through
capacity building, documentation, research, and planning.
As the conflict drew on and transition became less attainable, preparing
for transitional justice became increasingly problematic and sometimes counter-
productive. Ignorance of transitional justice concepts turned into fatigue and
cynicism as violence increased and any talk of justice or reconciliation sounded
more and more idealistic and out of reach. Documentation efforts became more
difficult, as people saw less likelihood for justice and no immediate response to
their increasing humanitarian needs. While documentation and consultations
increased in opposition-held areas, government-held areas remained a “black-
hole.” Plans and discourses built on this lopsided view of transition were at risk
of creating further divisions rather than enabling reconciliation and healing. But,
then again, developing or reviewing transition plans when transition appeared so
distant became indulgent and wasteful exercises, as the need to address the effects
of violence became so overwhelming.
Syrian human rights, justice, and democracy activists have all been
rethinking our work and what would be most helpful for us to do at this moment
in time. Our rethinking is based on new assumptions about what a post-conflict
Syria looks like. What can we do when post-conflict will not mean transition, that,
rather than a transitional government, we may have a “national-unity” government
still headed by the current regime. We suspect that post-conflict will not mean end
of violence as we shift to a war on terror framework. In this context, we are
looking at what is the potential for truth and justice in the short term and what we
need to do to achieve these outcomes in the long term.
At Dawlaty, and many other organizations are also considering this, we
have sought to review our transitional justice approach with a view to engaging
and supporting marginalized communities and those who have experienced
human rights violations. We are looking at strategies and programming that may
be relevant to these groups during the conflict, but which would also build
capacity and documentation for a future, distant transition. Within that
framework, strategies we have identified as aiding in the preparation for
transitional justice during the conflict include amplifying marginalized voices,
supporting the articulation of needs, and creating platforms for victims. For
example, we are collecting and archiving stories of female relatives of detainees
and supporting them in making their demands heard nationally and
internationally. We are working with young people to document the oral histories
of youth, and supporting them to define the issues they want to explore and how
they would like to communicate about them. We believe this victim-centered
approach may prove more empowering and more useful as an entry point for
engaging Syrians.
84 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
PEMBERTON:
Thank you very much, Salma [Kahale], for introducing, I think, a topic
that has not been discussed yet today. How can we think about transitional justice
prior to transition? I think that is a very, very important subject.
ROHT-ARRIAZA:
Many of the academics here think of ourselves as activist-academics: we
want to do policy-relevant research that has a clear anti-impunity objective, and
that will be useful. Many of us work with civil society groups, and frame our
research questions in ways we hope will be useful to them. And yet, there still is
a disconnect between researchers and subjects, and between Northern and
Southern researchers. There is much research going on, but it does not cross
disciplinary barriers, North-South, and academic-practitioner.
Most academic researchers are from Northern universities, and most of
their research is in Africa, Asia, and Latin America. In some cases, researchers
have deep knowledge and contacts in the places they study, honed by years of
connection, but in other cases the researcher is there for a one- or two-year study
and then gone. Not only do they not necessarily understand what would be useful,
they do not know to whom to make their research available. They often walk in
with preconceived research questions, rather than finding out what would be
useful for their “subjects” to know about. There is very little partnership between
Northern and Southern researchers. In the main (with notable exceptions) this is
an extractive method of research: the researcher comes, asks, leaves, and writes.
And that is the last anyone hears of her. Eventually, perhaps, a book or journal
article appears, but the chances of it being useful or accessible to the subjects of
the research are slim.
A true collaboration, though, is tough where the respondents are not
researchers and have other work to do. Research projects that involve victims
share these concerns, but also we must add other concerns such as the possibility
of retraumatization, the need for cultural sensitivity, and the proper form of give-
back. Participatory research is rare, in part because most social scientists (and
especially, lawyers) do not know how to do it well, and do not have the time or
make the time to be on the ground working with communities.
Why does this happen? Why is academic research not more useful to
practitioners? Partly the timeframes of academia are different—funding must
generally be secured far in advance, and research that is “sexy” to funders or
understandable to tenure committees may not be useful by the time it is
completed. There is a kind of herd mentality—people research where and what
others have researched, that is to say, they do not break new ground. In law, at
least, research with many authors is discounted. The predominance of Northern-
based researchers is also in part a function of how academia is structured: there
are far fewer full-time academics in the South; most people who teach also juggle
consulting or other jobs to get by, and so have less time not only to do the research,
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 85
but also to find publication outlets. Outside of full-time academics, people close
to transitional justice transitional justice processes from inside may have neither
the time nor the skills to solicit funding, pursue requests for proposals (RFPs),
find chunks of time to write, and the like.
The predominance of researchers from the North means that they write
mostly in English and publish in English-language journals. There is a great deal
of work in other languages (mostly European), but not a lot crosses language
barriers, so you see language silos. A few multilingual journals exist, but they are
expensive and hard to manage. Researchers are also generally specialists in one
area of the world, and in only a few subject matter areas. There is some
communication between lawyers, political scientists, anthropologists, and public
health specialists covering similar issues. But, there is little interchange between
those writing on transitional justice and those exploring security studies,
corruption, or natural resource extraction. The exception is a series of books that
the Social Science Research Council published some years ago
35
and a handful of
articles, but these are the exceptions. We do not go to their conferences, and they
do not come to ours.
It would be useful to discuss how to reverse this dynamic. How can those
of us in the North work more collaboratively with our counterparts in the South
(academics and practitioners), both to define research problems and to design and
implement research proposals? How can we share the credit so that it does not
feel exploitative to either side? Can we, for instance, create a clearinghouse on
needed research that requires the integration of North-South teams? Can we better
model how to give research back to subject communities and develop ways to
involve them in designing the questions that need answering? Can we build
“giving back” to our research subjects into funding and academic proposals so
that how well that was done becomes part of the monitoring and evaluation of the
research itself? How do we get the international organizations, funders, and
governments that create transitional justice and international criminal justice
“menus” and budgets to do a better job listening?
35
To date, seven books have been produced as part of the Advancing Transitional Justice Series,
a joint project of the Social Science Research Council and the International Center for Transitional
Justice. Advancing Transitional Justice Series, SOCIAL SCIENCE RESEARCH COUNCIL,
https://www.ssrc.org/pages/advancing-transitional-justice-series/ (last visited Feb. 26, 2018). See
TRANSITIONAL JUSTICE AND EDUCATION: LEARNING PEACE (Clara Ramírez-Barat & Roger Duthie
eds., 2016); TRANSITIONAL JUSTICE, CULTURE AND SOCIETY: BEYOND OUTREACH (Clara Ramírez-
Barat ed., 2014); TRANSITIONAL JUSTICE AND DISPLACEMENT (Roger Duthie ed., 2012); DISARMING
THE PAST: TRANSITIONAL JUSTICE AND EX-COMBATANTS (Ana Cutter Patel, Pablo de Greiff & Lars
Waldorf eds., 2010); TRANSITIONAL JUSTICE AND DEVELOPMENT: MAKING CONNECTIONS (Pablo de
Greiff & Roger Duthie eds., 2009); JUSTICE AS PREVENTION: VETTING PUBLIC EMPLOYEES IN
TRANSITIONAL SOCIETIES (Alexander Mayer-Rieckh & Pablo de Greiff eds., 2007); WHAT HAPPENED
TO THE WOMEN? GENDER AND REPARATIONS FOR HUMAN RIGHTS VIOLATIONS (Ruth Rubio-Marin
ed., 2006).
86 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
PEMBERTON:
Thank you very much, Naomi [Roht-Arriaza], for drawing our attention
to the unnecessary boundaries that seem to exist within academia and in practice,
and also the difficulty of doing research that is collaborative rather than extractive
with the populations that we seek to serve.
VAN DER MERWE:
The question of how research can contribute to policy and practice has
been a constant personal challenge for me in my work at the Centre for the Study
of Violence and Reconciliation (CSVR).
36
My work at CSVR for the last twenty
years has involved trying to shape our advocacy positions and our intervention
programs through the research that we have conducted in South Africa and
elsewhere on the continent. At times, this involves framing our advocacy position
on the basis of our research findings, while other times it is more about seeking
evidence to back a pre-existing policy position which is informed by a normative
commitment to human rights or other principles of justice and peace.
Is bad transitional justice policy and bad transitional justice implementation
a result of lack of knowledge?
The first question to confront as a researcher engaging with policy makers
is: what kind of knowledge informs their policy positions? Do they make bad
policy and implement bad strategies because they are unaware of the impact of
these actions? While lack of knowledge is often a critical contributor to these
judgments, the main problem, I would suggest, lies elsewhere. As researchers, we
need to be aware of where we can make the most impact and what the limitations
of research are in contributing to a policy process. The obstacles to effective,
positive policies are mainly located in the sphere of power inequalities. Research
needs to be cognizant of how it contributes to or alters these political relations.
Research can shed light on the likely consequences of specific policy choices for
victims, affected communities, or the country as a whole. And, this knowledge
has value for policy makers.
Transitional justice seeks to speak to the needs of the most marginalized,
but the flipside is that it also talks to the fears of the most powerful. The lens
through which to judge these choices is shaped by the self-interest of the political
elites.
Can we provide knowledge that will alter policy makers’ calculations in
this framework of relevant costs and benefits? Particularly, within a crisis context,
the decision-making parameters for policy makers is, generally, very constricted.
Very limited trust and short time horizons provide limited space for adjusting
36
CENTER FOR THE STUDY OF VIOLENCE AND RECONCILIATION,
http://www.csvr.org.za/index.php (last visited Feb. 24, 2016).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 87
these boundaries or thinking more creatively about options. Researchers and
policy advocates often seem to be naive in their attempts to influence policy in a
context where realpolitik is so narrowly constricted and the stakes are so high—
involving individual and group physical and political survival.
It is these contexts that produce an uptake of transitional justice in a
superficially or narrowly self-serving manner, a tick box approach to
accommodate foreign demands, or the use of transitional justice mechanisms such
as truth commissions and prosecutions that provides victors’ truth, victors’ justice
and victors’ reconciliation.
Within a negotiation and post-settlement context, is there sometimes more
space for research to introduce new knowledge that opens up new time horizons
for policy impact, loosens the boundaries of group identity and reframes policy
options beyond the narrow set of choices usually considered?
Practical versus idealistic contributions:
Transitional justice research speaks to both the practical and measurable
considerations that are affected by policy choices (e.g. individual well-being and
community benefits), but often more powerfully talks to deeper conceptual
questions relating to vision and identity—questions that can also speak quite
powerfully to political leaders. Transitional justice policy advocates operate
within a hotly contested terrain in terms of ideological contestation, and religious
and cultural discourse. They must, as well, speak to the directly personal concerns
of influential figures with personal perpetrator and/or victim identities. The
assumption we make as researchers is that the facts presented speak for
themselves, but these accounts may tell completely different stories dependent on
the lens of the policy maker hearing these accounts.
I do believe that the policy terrain shaping competing transitional justice
approaches is somewhat fluid, and this often gives researchers and human rights
and victim/survivor advocates significant space to negotiate the meaning of their
research findings and embed these in language that can be heard more effectively.
Meta-discourses in the post-colony:
In many African contexts, transitional justice is deeply embedded in two
meta-discourses: anti-colonialism and nation building. These world views (or
ideological frameworks) position transitional justice as a political process that
ascribes to it a role in promoting national dignity in the context of being a victim
of historical injustices and a visionary goal of building a collective identity in a
context of deep ethnic divisions and a shallow collective civic allegiance to a
central state. Associated with this are similarly powerful discourses relating to
state-building, citizenship and cultural traditions that can be very concretely tied
to specific transitional justice policy choices.
In such a dense ideological atmosphere, research that seeks to speak in
rational, neutral, technical terms about generic international human rights norms
or scientifically validated empirical findings have little hope of finding traction
88 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
unless local activists and political actors can see their value in bolstering particular
narratives that fit these broader social change or ideological agendas.
It is critical for researchers to understand the discourse and power that
shapes how knowledge is used and interpreted in policy contexts. For example,
research on victims in contexts like Algeria, where the meaning of victim of State
violence is almost synonymous with terrorist, or like Timor Leste, where victim
refers to someone who was passive in the struggle for independence (as opposed
to an active combatant), needs to do more than just highlight empirical needs and
normative rights, but to help consciously engage in reframing the discourse that
shapes the currency of empathy, respect, and dignity. In this dense atmosphere
that gives meaning to transitional justice information, we need to ask what informs
research agendas.
Framing transitional justice research agendas:
The agenda for research in Africa, when outlined by African policy
makers, is generally framed in terms of documenting local achievements. There
is a preoccupation with demonstrating that local knowledge—meaning local
culture, local intelligence, local experience—should be acknowledged and
celebrated. This acknowledgement is not just a strategy for better information
gathering. It is part of what is locally understood as the very purpose of
transitional justice—rebuilding African capacity in the wake of colonial
destruction and correcting the global imbalance of knowledge and national
dignity.
Transitional justice was initially treated by many African countries and
the African Union, as a dirty word, linked to Western agendas, involving regime
change, and imposed international normative judgements of savage behavior that
needed to be civilized through foreign intervention. Shifting the language to one
of framing the articulation of an African transitional justice approach and African
transitional justice norms creates huge opportunities for strong, progressive policy
discussions.
The same analogy applies to the research methodologies we choose to
utilize in this field. Do we use extractive data collection where the local is the
source of data and the global or Western is the source of analysis and knowledge
production, or do we use the research process as an intervention that reframes this
power discrepancy and addresses the disempowerment that makes individuals and
communities vulnerable to future human rights abuses?
Positive practical research: unpacking complexity:
On a more positive note, I want to acknowledge the very positive policy
research that has steered intervention practice (probably more than policy). There
have been many practical and detailed research studies that help build nuance in
service delivery—improve intervention in ways that recognize specific needs. The
clearest example of this is gender research that has pointed out the gender
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 89
dimensions of conflict and the gender dynamics of interventions—and which has
helped shape more gender sensitive policies and interventions.
At the same time, this also illustrates the inability of research to seriously
open up the bigger ideological questions in contexts where gender inequality and
discriminatory gender norms remain key continuities in the midst of formal
political transition. Where research focuses on gendered harms that fit neatly into
categories that can be universally condemned (e.g. war-related sexual violence
against women), policies are very responsive to research findings. But, when the
research touches on facts that do not fit with these dominant narratives (such as
everyday sexual violence and sexual violence against men), researchers find much
less traction in policy arenas.
The two simple conclusions from this discussion for researchers seeking
to engage in the policy arena are: 1) research needs to be conducted and presented
in a manner that can be heard through the discourse and narrative lens of policy
makers, and 2) research needs to be framed in a much more ambitious way that
strategically engages with the process of transforming grand narratives.
Transitional justice is influenced by research knowledge, but generally,
policy makers use this knowledge very selectively to sift through it for
information that can be used to improve their cost-benefit analyses. Research thus
needs to challenge the framing of how costs and benefits are calculated. This is a
much more ambitious goal. Conflict contexts produce very rigid frameworks for
calculating what counts as a cost or a benefit, who is the in-group and the out-
group that should benefit or be harmed, and the time frame that counts for such
calculations. Researchers that seek to alter these parameters need to have a much
more sophisticated analysis of the kind of information that can effectively
contribute to such debates, and how this information can be shared.
PEMBERTON:
Thank you very much, Hugo [van der Merwe], for introducing notions of
power around how research is conducted and the way that transitional justice can
or cannot speak to contest power in the context in which we find the transitional
justice research. Just before I open up the floor to comments from the rest of the
group, I thought I would make some comments of my own. First, I would like to
describe what I was thinking when I heard what was being said. It reminded me
very much of what we call the interdisciplinary paradox in academia in which
there is a lot of talk about doing interdisciplinary work and a lot of talk about
cooperating with each other, but then we set up all our tenure decisions based
around doing unidisciplinary work. We find that nearly everything is based
around building not bridges between disciplines, but erecting barriers. It struck
me when I heard this that something similar is happening in transdisciplinary
work.
Now, we also have a tick box that we call “valorization” or “impacts
generation” in the Netherlands, where we have to include a paragraph in all our
research proposals in which we say how this research will matter to society. That
90 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
mostly ends up by doing a PowerPoint presentation at the end in which we use
simpler language to describe what we are doing. We find that is enough
engagement with society for us.
Though we are talking a lot about doing transdisciplinary work and
making our science a little bit more useful for the people who actually stand to
benefit from it, we end up doing, more or less, the opposite. Then there is the
question of how we involve people in our research, which is very similar in effect
to the way we involve people in developing the processes that we would like to
see in transitional justice and countries in transition. How do we involve? Do we
do truly bottom-up research, and how do we also include that in developing
processes?
Maybe then, the final point is that, normally, social sciences try to shy
away from politics and power in doing their research by pretending that their
research is, in a certain way, objective, but this was already said. That is a,
probably, very naive perspective, but that also allows power to do whatever it
wants to with our research and our research findings.
Do those facts that we are producing speak for themselves, or do we need
to incorporate a far more complex understanding of power in these contexts? That
was at least what I took out from the three animateurs, but I am sure that a lot of
people have other things that they thought about.
ROBINS:
Something Naomi [Roht-Arriaza] said, which takes me right back to
something that is becoming central to our discussion, which is power. Some
narratives are invisible because people lack power, and people have knowledge
from everyday experience. That could be hugely valuable for process, but it is
invisible.
Research can be about accessing that, giving it value, and disseminating
it, and that is part of the process of supporting the agency of people who lack it.
An activist scholar can be a conduit for victims and others to do that. I am a big
advocate of participatory action research; I believe that it can be a practice that
explicitly builds agency. As Antony said, that leaves behind objectivity. It takes
sides: subjective research that supports victims.
It is ethical because it is about enhancing agency, and it is done on victims’
terms, and it is non-extractive. Things I have done, for example, include training
victims to collect data and involving ex-combatants I have worked with to address
the agendas that they raise. The research agenda is set by the constituency you
work with. It necessarily will have nonacademic outputs, because academic
outputs are usually not of interest to those people. You need a flexible funding
approach, because you cannot go to a funding agency with, “I am going talk to
these people and see what they want to do.”
Some of our projects have huge translation budgets because, obviously,
materials are produced in certain languages. If you want to inject them into an
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 91
academic context and write papers, you need access to those data. I believe these
projects have impact, and not just because they impact policymakers or process.
We hope they do, but they have a direct impact on power relations. They give
people more voice. They support people’s agency. Now, I am also working in
other ways, collaborative ways with transitional justice processes.
For instance, we have a research project working with the Tunisian Truth
and Dignity Commission.
37
We have researchers inside the Commission doing a
collaborative project with the Women’s Commission to support their
recommendations. We provide resources, financial and technical, but we also
have access to those data, so we can support their analysis and extract it for our
own purposes; so there is some mutuality of interest.
I am also working in Nepal with the truth commission and the
disappearance commission there in two capacities.
38
First, as a technical expert,
training, capacity building, but also doing research with them so that they can
write chapters of the final reports. Again, collaborative research. We identify
mutual interest, and that is engagement, I would argue. It is not about putting a
report on a website that no one will ever read. It is about building engagement as
a part of the process so you deliver research outputs in the form that people can
consume. I think that is one route to impact.
PEMBERTON:
Thank you very much for that, Simon [Robins]. Maybe other people also
have examples of good practice in building the bridge between academia and
practice. Abdelhay Moudden?
MOUDDEN:
Yes, I have an opposite example from our experience in Morocco of
equity and reconciliation. I was behind an idea that was thought to be disastrous:
to engage public discussions over some questions that are theoretical, but which
might have, I was thinking, some political impact, such as having a public
conference on the notion of truth and then another one on the notion of state
violence. That proved to be disastrous, because the audience, who were activists,
wanted concrete answers that were politically oriented towards action. When we
started engaging in the question: “Is there a truth?”, it was problematic because
we invited philosophers.
The point is that public and civil society were very suspicious of academic
discourse because it is too neutral, because it is polemic, because of all the kinds
of methodologies that must be followed in order to develop your argument. This
37
Supra note 13 (linking to the Tunisian Truth and Dignity Commission).
38
TRUTH AND RECONCILIATION COMMISSION, NEPAL, http://www.trc.gov.np/ (last visited Feb.
26, 2018); COMMISSION OF INVESTIGATION ON ENFORCED DISAPPEARED PERSONS, NEPAL,
http://www.ciedp.gov.np/index.php (last visited Feb. 26, 2018).
92 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
is one point that I think is important. The second concerns this gap between North
and South. It is structural. This is not a simple reason. In the case of many small
countries such as mine, we do not have the equivalent of area studies, because the
country does not have any investment in that area. We do not even have embassies
in a number of countries, and there are not that many international representatives
in ours.
I think that if we were to have a conference like this in Morocco, very few
people would attend, unless the discussion was about something that is palpable
to them. Guatemala or Cambodia: these ideas are too far away, and people would
not make the connections. You are not going to find any student writing a Ph.D.
thesis on these issues. This is a structural problem. The challenge that I think we
face is how to encourage a conversation between theory-oriented, low generating
approaches that come out of academic disciplines (social science, etc.), how can
we create some kind of a bridge where the voices that are very centered on specific
cases might engage in a conversation that could be both related or contextualized
and, at the same time, contribute to the broader more generalized theory.
DESTROOPER:
I would like to follow up on that and, in a way, my concern is also the
topic that we discussed before the lunch break: the issue of discipline. Recently, I
have been working together with some people in theater studies and literature
studies, and I was positively struck by how much openness there is within those
disciplines towards accepting the idea that there is a subjectivity, there is a
possibility to do activist research and how much more of that is happening in
disciplines other than the ones usually associated with transitional justice.
Specifically, in the field of theater studies, there is a lot happening in the
South African context, which is much more community oriented, much more
rooted in practice, and it is still seen as good scholarship. I think it is possible to
have a dialogue between disciplines, whereas I think that the fields of legal
studies, and also political studies, have a specific interpretation of what constitutes
good research and good research practice. This should be questioned and critically
assessed, and this can happen on the basis of a more interdisciplinary dialogue.
HACHED:
Yes. Maybe the case of Tunisia is different because, actually, the
connection between the researchers and the advocate in practice is very strong.
Even more, I would say they wear both hats, generally speaking. What I see is
that, mainly, they are both researchers and advocates. They do both. Even the
legislature now participates.
Several participated in the drafting of the law on transitional justice
39
and,
now some of them are members of Parliament. The same people, they wear all
39
Law No. 2013-53 of 2013 (Organic Law on Establishing and Organizing Transitional Justice),
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 93
these different hats. I do not know how you say that in English. I think it is good
in some way, and it might be not very good in another way. Maybe, in Tunisia, it
is like this because of the fragmentation of the powers. We do not have a winner
and a loser. These people, they talk in a kind of neutral speech, this very legal,
very neutral speech. It was very true for all the parties, very neutral, measured
speech. Of course, this is not true, because nobody is really neutral, but these legal
professionals presented in ways that suggested neutrality. Yes, we had this in
Tunisia, and it was very reassuring for people. We did not go to philosophy. It
was always legal, very legal theory.
WEINSTEIN:
Several thoughts. One is I just wanted to respond to Naomi [Roht-Arriaza]
and also to something Anja [Mihr] said earlier. When we did our study of
transitional justice literature over the period of a decade, we used several kinds of
methods that allowed us to examine the literature across multiple languages. We
chose to focus on French, German, and Spanish, but this Index to Foreign Legal
Periodicals, if you put in the right categories, it will pick up all the literature that
is in those areas. We felt fairly confident that we could say that the literature on
transitional justice is much less in these other countries than one might hope. Just
so you know, the data are out there.
The second thing is, I was thinking about this issue of power again. I do
not know why I am harping on that today. I was thinking about powerlessness
with respect to academia and with respect to civil society. In academia, you are at
the mercy of those who grant tenure, right? There is a power differential. Unless,
in social sciences, things have changed remarkably, which I do not think they
have, as opposed to the natural sciences where people are now working in
interdisciplinary labs and where they are doing away with walls across disciplines,
social scientists still tend to work in siloes and are rewarded for that. In that sense,
unless social scientists began to organize to change the structures of the university
reward system, nothing is going change in academia.
Also, with respect to policymakers, I do not think—and it goes back to
what Refik [Hodzic] said earlier about language and vocabulary—that academics
have been very effective at selling policy research to policymakers. I have a very
close colleague who has worked in Washington, D.C. for a number of years. He
told me how policy briefs work. Policy briefs work without evidence—without
evidence. Academics are considered less than helpful. We gather evidence to sell
to others. If the policymakers do not read it, then there is a problem in
translation—lost in translation—and there is a problem in our own sense of power
and ability to influence the policies that are relevant to what we are interested in.
Journal officiel de la République tunisienne, No.105, Dec. 24, 2013 (Tunis.), available in English at
http://www.ohchr.org/Documents/Countries/TN/TransitionalJusticeTunisia.pdf (last visited Feb. 26,
2018).
94 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
Thirdly, I go back to my original question earlier this morning, which is,
who is the client? That gets back to something Pablo [de Greiff] said earlier, do
we just focus down in transitional justice as a very specific thing? How do we
sequence it? How do we think about it short-term and long-term, and who are we
working for? I would like us to come back to these questions at some point
because I think they are critical in terms of the future of transitional justice.
Lastly, I want to give you an example of participatory action research in
Rwanda, which consumed four years of my life. We worked with Rwandan
historians, students, teachers, and parents in the elementary schools and
classrooms and spent years working there to try to deal with the problem that the
Rwandan government refused to teach history after the genocide. Now, that is a
problem from my perspective, but we did not go in with that as a bias.
Instead, we asked, “What do you think of this? What would you like to do
about it?” In collaboration with the multiple stakeholders, we addressed a problem
that was defined by them. We developed a history curriculum model that took into
account the genocide. The government was a stakeholder. They believed in it. We
trained 400 teachers to implement the model and create the curriculum. It looked
like the teachers were going teach it, and suddenly it ended. Why did it end?
Political will. It was too dangerous. Sometimes participatory action works.
Sometimes it does not.
PEMBERTON:
Power structures in knowledge production and power structures in
knowledge translation, I think that is very important.
VAN DER MERWE:
I just have the curious sense of wanting to understand: what knowledge
do policymakers have? As a researcher, I would really like to go an interview
them and understand, do they think truth heals? Do they think that the South
African Truth and Reconciliation Commission
40
was a success and that it
produced blah, blah, blah? What knowledge do they possess? What universe do
they occupy in terms of the knowledge? Research does not feature in that universe
but novels and movies probably do. Archbishop Tutu and President Mandela
feature in that knowledge universe. I wonder, how do we break into that
knowledge cycle? That is, for me, the intriguing question.
PEMBERTON:
Yes, I have often pondered that one as well. What knowledge do
policymakers have? I think that the current president of the United States at least
40
SOUTH AFRICAN TRUTH AND RECONCILIATION COMMISSION, http://www.justice.gov.za/trc/
(last visited Feb. 28, 2018).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 95
always makes it very clear where he gets his knowledge. It emerges from what is
seen on television yesterday.
SÁNCHEZ:
Speaking of power structures and gaps and limitations, I think this is exhibit A,
and look at the prices here. [Holds up a list of prices for journal articles]. These
are a real problem. Sometimes I come across this fantastic article that could
help, but to read it once, costs $60.00. I completely agree with you. Unless we
stand up and try to change that, because this is scholarship, and this is what
gives you points for tenure. Unless we tackle that, it is going to be all the same.
Thank you.
PEMBERTON:
That is what was being whispered in my ear in fact. You have to say
something about open access and open source scholarship.
CODY:
I wanted to push back a bit on what seems to be a celebration of the activist
scholar. My name is Stephen Cody. I am a law professor at McGeorge School of
Law, University of the Pacific and, previously, at the Human Rights Center here.
I think, partly, because I wear the two hats of being a lawyer and being a
sociologist who does research, I see real value in separating research. Not just
because of this critique of objectivity, but because, I think, when you start to act
as an advocate in the scientific field itself where you are collaborating, hopefully,
with practitioners and scholars on the ground, that the activism leads to a certain
closed mindedness about how many potential conclusions you can come to.
I will just use, as an example, a recent project that we worked on
interviewing victims at the International Criminal Court.
41
I think there were
questions that we would not have asked about victim participation in trials at the
International Criminal Court had we been approaching the project as individuals
advocating for a victim centered approach. Because we were able to ask, I think,
a broad array of questions, we found lots of counterintuitive information, which
ultimately, I think, helps the court to become more victim-centered.
In that role as a scientific investigator, I think it was very problematic, at
least for myself, to act as an advocate. Instead, in that role, I think my job was to
collect evidence to the best of our ability in an open-minded way and let that
evidence speak for itself and deal with the findings. I think, particularly in this
world of alternative facts and politicized journalism, that we really need to think
seriously about our roles as advocates as separate from our roles as scholars. I
41
See Stephen Smith Cody, Eric Stover, Mychelle Balthazard& Alexa Koenig, The Victims’
Court? A Study of 622 Victim Participants at the International Criminal Court (2015).
96 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
think the risk is, if you do not do that, then, suddenly, scholarship becomes what
Human Rights Watch is, which is wonderful, but not scholarship—no offense,
Brad Adams [Executive Director of Human Rights Watch’s Asia Division].
HRW is a wonderful advocacy tool that sheds incredible light on and
draws attention to atrocities around the world, but it is not a scientific or empirical
investigation of a situation from all sides. I think that there is a very real danger
in embracing this activist-scholar role, particularly in transitional justice, which is
already so politicized as a field.
PEMBERTON:
If you go too far down that path, we might become just one opinion
amongst others.
MIHR:
I also wanted to challenge the general agreement that we need more
applied research, etc. I know that the funders and donors to our research have
demanded this aspect—to elucidate the policy implications of our research—and
we all comply at least with trying to have meetings with policymakers at the end
of our studies. Fine.
Right now, I have the impression that, also, from the donor perspective,
scientific councils, etc., around the world, it goes almost to the other extreme. You
have to have quick research results, go to the policymakers and have an impact,
and then evaluate your impact on top of it, which is almost impossible. It leads us
away a little bit from, actually, what is the added value of research in comparison
to NGOs, to reports, etc. I find my struggle in this is, like probably all the
researchers at this table, when I apply for funding and I say, “No, I want a
comparative and long-term study,” it is very unpopular.
I need more than three or four years. I want to compare four, five, six, or
even eight countries. I want to look at the similarities, the difference, etc. which
requires a lot of resources, patience, and time. This is very unpopular with donors
because they do not see quick results. We end up in the transitional justice field
with all the disciplines, so far as I can see, producing single case studies.
We have extensive knowledge, particularly about countries that went
through a recent transitional justice process, where we speak the language. That
is why some countries, particular in sub-Saharan Africa, but also Latin America
are somewhat over-researched, not that I do not think that there should be more
research, but in comparison to other countries. Here, I return to Europe. I see my
role here, to study the countries in our own backyard—particularly Eastern
Europe, where there is so much to learn. We know very little, including myself,
even if I am geographically close to the region. I work a lot in this region, but I
do not speak Hungarian, Slovak, Polish, and Russian. They are very difficult
languages to learn, and I think we are losing so much as a result.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 97
Including them, for instance, in comparative research with, maybe,
countries whose language we speak and with whom we have partnerships could
add value and quality to our research. The struggle is long-term research. Also,
looking at cases in the past, when I came to donors and said, I want to study, even,
the German case or the Spanish case where you have thirty, forty, or fifty years
of experience from which to learn, this was very unpopular with donors because
it had no immediate result.
Now, I come back to the practical part of the linkage, and the core of this
session. I now do a lot of consultancies in Germany for the Ministry on
Transitional Justice. I, just last week, had a one-hour meeting with the Minister.
Everybody who knows, in research, that one hour with a minister is a lot of time.
Basically, I had one hour to pin down, one sentence of my policy brief based on
ten years of research that will be incorporated into the strategy. I was surprised,
positively surprised, to hear Hugo [van der Merwe] say how much government
policymakers knew–that they actually read the policy briefs.
They were very well-informed because we are talking about large
amounts of money. We are talking, not about 100,000 Euros, we are talking about
twenty, thirty, forty million Euros that the policymakers have to invest. They want
to ensure that it is money well-invested. I was also positively surprised that they
do think about the expected outcome. Outcomes are something that, sometimes,
we are unable to define explicitly. This comes back to the question, what is
transitional justice supposed to achieve in terms of justice or societal cohesion?
That is the question.
I said, “What do you expect from our research? What should come out of
all this? Where should its outcomes be in the short, medium, and long term?” I
was very positively surprised, actually. I had various policy briefs or meetings
with policymakers. On this level, I was surprised how interested they were and,
hopefully, it was useful. The problem is, I think, that comparative studies and
long-term research are too costly and their added value seems unclear.
PEMBERTON:
Yes, as the one who started out my career being a contract researcher for
various ministerial departments, I am very much aware of the degree to which
research can also be clouded by political judgment, if someone is paying for it.
That is something that is definitely not what it should be; that is definitely not a
road we should be going down.
PETRANOV:
I work in private philanthropy. Although we do not use the word
transitional justice for our program, we use the term accountability for grave
crimes. You would be very happy to hear that that work is combined in the same
program with global human rights, business, and human rights, or corporate
accountability, technology, and human rights.
98 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
As I said, it is evident that some of the research works, and some of the
concerns are taken up. Four years ago, when we set up this program, the ratio of
funding between North and South was something like—the exact number is
difficult to get to—but something like 3:1. Now, four years later, it is 1:3, North
to South. We do listen, and we do read what you write.
The point I wanted to make is that there is one word or one thing that
hovers in the room, but no one talks about it. We talk about power, but we talk
very little about money. I do not want to talk about money only because I work in
a foundation, but I think it’s important to look at how money for research, or
money by philanthropy is allocated. I want to thank Naomi [Roht-Arriaza] for
pointing me to this research about development agencies and funding for
transitional justice. If this research is true, it is shocking if there is only one
research paper in the last twenty years that looks at funding flows for transitional
justice work.
I would dearly like to read more about how the funding institutions and
agencies, and the big chunks of money come, probably, more from the United
States than from the European Union and from development agencies, but who
knows? I think it would be extremely useful to figure out how the funding flows
are distributed. I just had a very quick look at that report, and maybe I have
misread something, but as Pablo [de Greiff] finished his talk, he referred to the
importance of civil society. Probably, eighty percent of our funding goes to
activist CSOs and lawyers. I think three or four of them are in this room. That
research that you mentioned cites a figure of something like one percent of the
funding flow for transitional justice going to civil society work. I think, if that is
true, that is truly scandalous, and I am not sure what the reason for this is. We
cannot really talk about power and agenda setting without talking about where the
money goes and how those decisions are made.
It might have been useful to have one or two of these decision makers
from transitional justice in the room to tell us how they make decisions. I can tell
you a little bit about how funding decisions are made. Specifically, in our
foundation, we have four-year strategies, but we have two reviews of every
funding program every two years. Actually, if you want to do something that is
long-term, you really need to protect your program and your budget for the long-
term, but, every two years, you must have one or two spectacular short-term
successes. A good combination of those preserves an accountability program, that
there is probably 0.3 percent of the overall budget of the whole institution, and it
competes with twenty other priorities. It is really difficult, if not impossible, to
maintain a long-term perspective in that practical reality of a funding agency.
The last thing I wanted to mention about practice and theories, I was trying
to build a mental picture in the last few weeks of what comes out from specific
projects that we are working with. If you compare that list of questions that people
come to you with, questions about very practical things, to the list of what the
academic output is giving us, it would be interesting to compare. Obviously, it
would be a gross simplification to have a complete overlap, but some tight
relationship between the two would be useful to have. I can read you the questions
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 99
from e-mails I have received just in the last week asking things like: “How do I
set the database in a state institution that talks with the database of other state
institutions and then the NGOs? What kind of software do I use when I record
violations? How do I choose priority cases?”
Actually, these are real questions that people come up with when they are
due and when they think about how to spend very small amounts of money:
“Should I use my money to go to Geneva to advocate with the Human Rights
Council or go to Washington? Will I have to go to Beijing?” These are the
questions that the practitioners are grappling with every day. I guess my main
point is that there is very little understanding about the cost of things and about
the tough practical choices of how to invest time and resources that practitioners
face every day. There has to be some way to make the research and to
communicate to—I hate the word, but decision makers or policymakers—people
who have to make decisions that involve tough choices and that involve the
allocation of resources in very limited time, based always on incomplete
information.
PEMBERTON:
It strikes me that private philanthropy is sometimes better equipped to do
that kind of long-term funding than most of our governments now are. They seem
to be changing their minds a lot more quickly than, at least, the private
philanthropy organizations that I work with.
OOLA:
I just wanted to highlight an example of how research can be used to
inform policy advocacy using a very particular alliance or partnership that the
Refugee Law Project had with Johns Hopkins University. What Chris [Dolan]
described in the morning as “excellent engagement” or “engaged excellence.”
One of the challenges we faced, for example, in our policy advocacy in
Uganda dealing with refugees and forced migrants was a recognition that a good
number of the forced migrants who were coming into Uganda from the
Democratic Republic of Congo, South Sudan, and all the other conflict contexts
were victims of sexual and gender-based violence. We could not put a figure on
how many of the male victims, for example, were victims of this particular
violation.
Yet, internationally, it was a given that women were taken to be more
affected by conflict-related sexual and gender-based violence than their male
counterparts. At lot of people did not have the expertise on how to approach this
particular situation. We had a number of discussions with different research
institutions based in the North and some, of course, in South Africa as well, to see
how we could address this peculiar situation. We found, that Johns Hopkins
University had done a lot of work in the area of medical research to try to
understand some of these phenomena.
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Then we worked together to develop a screening tool that asked very
specific questions around whether or not these refugees and forced migrants had
been affected by sexual and gender-based violence (SGBV). For us, the outcome
was shocking because, I think, two out of five male refuges who came from DRC
and South Sudan had been exposed to SGBV, either having been forced to
perpetrate SGBV or having been direct victims of SGBV-related violations
themselves. I think, in the figures, three out of every five female forced migrants
from this context had also been exposed to similar violations.
That became, for us, real evidence that we used very effectively in advocacy on
sexual and gender-based violence in conflict situations, particularly for men and
led to several other developments, including a protocol on SGBV investigation
in the context of conflict. I think that this research, for us, was really one
example I thought important to share.
PEMBERTON:
It was at least a good example of the way that quantitative data on these
things can make a difference.
OEUNG:
I just want to offer some input from Cambodia. In the room, we can see
many representatives from different continents already. To me, this is very
interesting when it comes to the relationship between transitional justice and
research policy advocacy. For me, as a practitioner, I see it is still something we
need to take into consideration. Given what we discussed, this morning, about
language, I would like to echo some of what was said. If we look into the domestic
context, we have English, French, or other language publications, but when it
comes to local the language, it is really rare.
If we look into my Cambodian context, of course, we have researchers
from outside the country who have come just for a few months to do research
there. Then they publish their article, their book, or their paper, and they present
it abroad. They present in their country. They never come back to us to show their
results, which I think is unfortunate. They interview us, for example, me, myself,
I give a lot of interviews to these researchers, but they never come back with the
results. I think there is something missing. We need to look into this, and I like
the comment from Naomi in this regard.
When it comes to collaboration, I think of action research as
complementary, like at my organization. I am not talking in the name of the
Swedish embassy, but an NGO I worked with. We offered internships to
international interns. Also, we collaborated on research, so they can come up with
different types of research projects around transitional justice. Of course, they
might focus on victim participation. They may talk about reparation. They may
focus on memorialization or reconciliation, but the universe of topics chosen are
limited. When it comes to the tribunal process, I think more legal scholars are very
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 101
interested in this. They come in, and they do research. Either they come to work
in the court or outside the court, but, still, they focus on the tribunal.
I think action research can be done, but we also need to consider local
participation—I mean, the locals who experienced the violations themselves
should be connected to the researchers so they can use the findings for the mutual
benefit of both researchers and the local persons. I gave you an example, the
research that was conducted by the Human Rights Center at UC Berkeley.
42
It was
Patrick [Vinck] and Phuong [Pham] who engaged in this process; Patrick worked
on two projects. Luckily, he collaborated with my former organization to do a
presentation of the results, which was good, at least to inform those who had been
interviewed at the NGO and who were engaged in this process to know what the
results were. I think that should be something researchers do—to look into to
making their research more useful in the contexts where they engage, to have
some sort of practical results.
When it comes to funding, I agree with you, that it is quite limited. For
example, in our context, there are no organizations that really can provide funding
opportunities for researchers. Even myself, I want to do research, but I do not have
the capacity to engage, because we need money to do it. It would be interesting
as well—especially for the development agencies—to open space, not only for
academic institutions, but others who really are interested in this. Spaces where
we can work together with researchers to learn from their results and then do
outreach based on their results in our own communities and countries. These are
my comments.
FLETCHER:
A couple of somewhat disparate remarks. I wanted to react to the
exchange about activist-scholars, because I think I need a point of clarification. I
do not understand Jo-Marie [Burt] and Naomi [Roht-Arriaza] to be saying that
being an activist-scholar depends on what questions you are asking. If you are
asking victims what they want, and then you ground your research question from
that perspective, this does not mean that your research is distorted or no longer
objective. And, I do not think Stephen [Cody] was making this claim. I think the
issue is: what are the questions that we are asking?
I can see that Stephen’s research questions are designed to find
information to make the court process better. Those questions may not necessarily
be the same questions or the ones to which victims would be most interested in
knowing the answers. That is just a difference in how you define your research
agenda and its intended audience. It does not resolve some of the question, though,
about extraction. Even though extraction may be more likely when your clients
42
Phuong Pham et al., supra note 17; Patrick Vinck et al., After the First Trial: A Population-
Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts
of Cambodia (2011).
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are not the subjects of your research, I think we need to constantly guard against
that. That was one point.
The second point that I wanted to make is this–and it was prompted by,
actually, Salma’s [Kahale] initial comments and then what Refik [Hodzic] said
when he started us off earlier about contexts where you have justice pre-transition.
I may have misunderstood you, Salma, so please correct me. You talked about
research as documentation, that, in part, research is documentation for
accountability. Whether or not there is ever a transition, accountability may be a
focus of advocacy which is victim-driven now. Victims may also have other
priorities now and in the future, and the relative weight of those priorities may
change.
The problem that I see with the dominance of the criminal justice and
accountability framework is that it tends to blot out, over time, the other agendas
that victims have. That is because it is compelling. It leads. There are opportunities
to actually do something, for example, pursuing criminal accountability through
universal jurisdiction. If you need a success every two years, you might actually
get something that looks like progress, whereas things like what Elizabeth [Lira]
talked about earlier, rehabilitation, rebuilding lives, livelihoods, dealing with
corruption, etc., they are much more endemic problems that need long-term
attention.
Part of that is about research methods that need to change over time, but
part of it is that we anchor our priorities early, which tends to prioritize
accountability and then ends up, over time, crowding out other equally important
priorities that emerge five and ten years and even generations later.
VAN DER MERWE:
I just wanted to reflect on the tricky situation of being in a policy
collaboration relationship with an institution like the African Union and, at the
same time, doing research on transitional justice. Essentially, it has been a seven-
year engagement. I think, firstly, where the policy engagement is about building
acceptance of the language of transitional justice when you go into an
environment where people say, “No, we’re against transitional justice because
transitional justice means the ICC. It means a Western regime change agenda,”
etc., etc.
The research that you do at that stage is one of documenting the success
stories, and sometimes it is really hyping up the Gacaca trials and the South
African Truth and Reconciliation Commission. It is saying, “Well, there are all
these positive things that demonstrate the South African approach to transitional
justice.” It feels like compromised research, but it is presenting certain evidence
that builds a momentum that you can then turn into a very progressive policy
framework that you can be really excited about. That opens up, and then you get
funders who say, “Well, now, you’ve got the inside scoop. We will give you three
years of funding for a twelve-country comparative study where you will do the
research now, in terms of the policy implementation. As the policy gets
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 103
implemented, you can track how the new policy shifts that agenda.” At the same
time, it is like, “Well, does that mean, once we get honest about the impact, and
then do we say this partnership is going to have an endpoint once we publish our
research?” That is a bit more honest.
YANAY:
Two questions and an observation. The questions are the following: one,
what is the difference between restorative justice and transitional justice? Are they
along a continuum? Because, basically, if we speak—as Laurel [Fletcher] spoke
about victims—we are speaking about restorative justice, that they feel that their
personal issue is being settled. Although, if we speak about transitional justice, it
is relatively more community or nation oriented. I think that they lie along a
continuum. The beneficiary, the client, at the end of the day, is a person: the
victim. I am not sure that we are aware of the fact that the victim, at the end of the
day, is the one who is supposed to benefit from the process.
Second question: how does the program, any program, whether restorative
or transitional justice, start? Is it a bottom-up process or a top-down process? Is it
initiated by the people who suffered and want justice to be made or politicians
who say, “Well, let us start a process that may end our political issues”? These are
different. Again, two different issues, which I think we should be aware to
because, again, I am speaking from the Middle East. In the Middle East, in
Jerusalem, we have got Arabs, we have got Jews, we have got Christians. We
have got many, many communities, and everyone has his or her agendas. Who
begins the process? Does it start from the bottom, or does it start from the top?
Finally, an observation. I teach a course on restorative justice. Only part
of it is transitional justice. It is amazing, and it is open to the university. I usually
have eighteen students, eighteen. It is amazing what students come to my class. I
just wrote a list. Students come from economics, history, psychology,
criminology, victimology, literature, poetry. Poetry students come to a restorative
justice classes. Of course, gender studies, peace studies, and, finally, people who
study religion and religious topics. They are all interested in the topic. They all
come, and they write, afterwards, an assignment, which deals with issues in their
own discipline. Fascinating, and those of you who teach at university, I suggest
that you open it to people from other disciplines. Very enriching, and you receive
excellent observations and excellent evidence from different perspectives to the
course.
HACHED:
I have two reactions. First, about restorative and transitional justice.
During our research, for us, there is a short-term transitional justice and long-term
transitional justice. Long-term being the institutional reforms, what we call the
fourth pillar–the guarantee of non-recurrence. In our experience, we saw that there
was a contradiction between both dimensions of transitional justice because, when
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we started, when the process started, to have justice for the victims, we needed to
accuse the people who were civil servants, okay? But, to make the reforms, we
needed civil servants to do the reform work, especially in the police. You cannot
just, in one day, in twenty-four hours, put everyone away from the system. Even
if you do so, they block your reforms.
My second comment is about research and practice advocacy. My
organization is at this intersection. We do research, but not academic research. It
is policy-oriented research, as you said. Doing that, we accumulate much material.
When we do proposals for our funders, we always put in funding to create
databases on all the material we gather, and we take on full-fledged researchers
with a view to creating partnerships with universities and with university
programs. Students, researchers, and professors can have access to the research
we do, I mean the material we have. We have had, for example, to translate
material from one language to another, and this could be interesting for
researchers, of course.
The second point is, maybe, also, the funders. They seek to fund projects
more related to what is going on now. In our case, we were very oriented toward
security sector reform at the beginning. Transitional justice, for us, in our project,
was always related to security sector reform. Thanks to that, we very easily
secured funding, because security sector reform is the main concern now. Maybe,
also, how we present the purpose of the research can be important.
HONDORA:
The discussion prompts for this session includes this statement: “The
experiences of field-based advocates, too often, are not reflected in transitional
justice immediate processes.” The question I would ask is, how much of a problem
is this, really? When we look at the notion of transitional justice, very often and
for the most part, we are indeed talking about criminal justice initiatives.
Therefore, lawyers and criminal justice operators have a role to play in
that. Beyond that, the other fields—for me, there is a question of, do the other
fields that could influence transitional justice—have they formed a coherent
message and a body of work that is coherent and sufficient to be able to influence
these processes? A different way of putting this across is that you will have field-
based advocates who can either be human rights organizations that will issue
reports, or you will have academics who will be quoted. You have think tanks. At
the end of the day, perhaps, the question I am asking, a bit from a distance is, how
big a problem is this?
PEMBERTON:
That is a very good question, I think, to end this session. How big of a
problem is it that we are discussing?
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 105
IV.
DISCUSSION #4
Question: Based on thirty years of research and experience, what is it that
we should be doing in response to mass violence?
BURT:
We are going to start discussion number four. The question that is guiding
us is: based on thirty years of research and experience, what is it that we should
be doing in response to mass violence?
FONSEKA:
Thank you. Basically, we are talking about thirty years of lessons learned.
I thought I will start, connecting with the Sri Lankan—my own—experience and
raise some broader points, which have been flagged throughout the day. I thought
I will bring it back to some of the key issues that we should be thinking about. In
terms of lessons learned, I also thought it was quite ironic that we are looking at—
I am looking at—Sri Lanka when so many things have gone wrong in Sri Lanka.
We had efforts at peace building, conflict resolution, and responsibility to
protect. If anything, Sri Lanka’s a good case study of what not to do. I will try to
flag some of it throughout the conversation. When one talks about what areas to
avoid, it is a good starting point to ask what are the key areas? What are the
priorities?
In Sri Lanka, we are going through a process of transitional justice and
constitutional reform—a whole package of promises of reform. It has gotten to a
position where there is a growing frustration, anger that things are not moving fast
enough. The delays also give us a time for reflection that we are trying to use in
the best way possible. One of the things that we have done most recently is two
consultation processes: one for constitutional reform, and another for transitional
justice. A key thing is that these consultations went on across Sri Lanka. We spoke
to a whole range of actors from victims to civil society to political actors. I was
part of the transitional justice consultation process.
The consultation challenged a lot of norms that were in the public domain,
ideas that reflect the dominant narrative. This was a good wake-up call for us.
Taking lessons from the past, as well as the more recent consultation processes,
one thing that we must all factor in—and in Sri Lanka, very much so—is the
political stuff: the politics of reconciliation, the politics of accountability, the
politics of everything in a way. It is very easy to hide behind the norms. I am a
lawyer, so it is very easy for me to hide behind the laws and forget the realities,
the politics that get things moving. That is why I started with lessons that are
learned in the international dimension as well as the national dimension. Sri
Lanka, if anyone knows, went through nearly three decades of war, and the last
stage was rather–it was a bloody end.
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In terms of the international dynamics and politics, it was that—and we see
that happening with Syria and so many other countries—however much we
pushed in terms of the humanitarian catastrophe, international politics played out
such that we could not even get a Security Council session on Sri Lanka. The
interests of the international actors played out. One must always factor in the
agendas, the interests of various actors. I do not think I need to name these. You
cannot divorce it and say, “We only talk about the humanitarian dimension. We
only talk about responsibility to protect.”
In terms of domestic politics, we have continued to learn that there are
agendas of the various political actors that need to be factored in. When one talks
about mass violence or transitional justice, it is not straightforward. You need to
think about gender or the politics that come in from the executive, from the
legislature, from civil society, from within groups, as well. In Sri Lanka, very
much the diaspora as well.
Politics is something we need to be very much engaged with, but also
aware of and to also understand the spoilers, the critics, constructive and
otherwise, the various actors, the various factors that need to be taken on board.
In deciding to move forward, one needs to also be very much aware of the context.
In Sri Lanka, the context would be very different from what we would hear from
Columbia, or Kenya, or other countries. It is not just taking one case and saying,
“In Argentina, in Chile it happened several decades ago. It would work in Sri
Lanka.”
This process is very much content specific. Who were the actors? What is
their agenda, and how does that play in the present dynamic? As I speak, we have
a U.N. Human Rights Council session ongoing in Geneva, and Sri Lanka is one
of the countries that is going to be discussed next week. In that, we have a moment
of getting some engagement, some momentum, but what we realize is that it is
also very much Geneva-specific. How does it translate to the context? How does
it translate to what is happening or not happening in Sri Lanka? How does one
also use it in the best way possible? One of the positive things that has happened
in the last couple of days is that the U.S. administration, even though it seems to
be rather chaotic, has taken a particularly strong position on the Sri Lankan issue
at the Human Rights Council. How that translates after the Council session ends
remains to be seen. Those are the factors I think we need to be very conversant in,
as Geneva, Washington D.C., and New York have their own dynamics.
How that translates on the ground, how it works with the local actors also
needs to be factored in. You cannot work in a vacuum. That is one of the main
points that I wanted to make: the politics, the context, the actors, the timing–all of
these things need to be factored in.
The second point I want to raise from our own experience is on the
ownership of various actors. We heard Pablo [de Greiff] talk about victims and
civil society, and I think those are very important actors that need to play a role.
As we have learned, in several countries, including Sri Lanka, the role of political
actors, the politicians, the donor community all are important. Is there political
will to carry through? Civil society victim groups can keep the pressure up, can
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 107
keep raising issues. We are doing the best we can in terms of saying justice is
important, but there are also other areas such as reparations, truth, non-recurrence,
security sector reform. I talk about this in terms of the particular grouping, the
ownership. The voices we have heard about it as well: how representative are
they?
I have two more points. The third is, how representative is the process? Is
it inclusive, or is it seen as a very elitist process? In Sri Lanka, transitional justice
is seen as very Colombo-driven (that is the capitol), a very elitist process. How do
you get the language right, get people to understand and connect with the process,
but also to understand what it is and what it may not be? That is, I think, something
very important.
The fourth point is the linkages. It should not be seen as a process that
addresses donor agendas or that latest case. In Sri Lanka, there was a session two
years ago where Beth van Schaak and I spoke. I talked about the transitional
justice industry coming into Sri Lanka. It is ticking the boxes. What are the
linkages with other processes in a country?
In Sri Lanka, we are going through the constitutional reform process, and
we are trying to see how you connect the two—constitutional reform and
transitional justice—but we must also ask what it is that is so distinct with the two
different processes. One thing we are looking at is a transitional justice clause
within the constitution, would it get buy in? Would it get more support? It is
something we are looking at, but there is a lot of pushback. In terms of not having
a siloed approach, but also making sure the integrity of the process is not
undermined by connecting or keeping it separate. This too is something very much
to factor in. Also, for us, the constitutional reform linked to transitional justice
should be the priority in Sri Lanka. Unfortunately, constitutional reform and
economic revival have taken priority instead. Transitional justice has taken a back
seat. This outcome is connected to politics as well, but then, what is the role of
civil society and others to keep that issue alive? That is a big issue.
Finally, another important concern is communication and, linked to
communication, is terminology or language. In Sri Lanka, transitional justice is
seen as a new area. It is seen as a Western concept. How do you make it more
tangible and relatable? Some of the things we have done is to have simple guides
to explain what justice is? What would a hybrid court mean? What would a truth
and reconciliation commission be? But also, explaining language.
There is always the problem of who understands what high accountability
is or what international and criminal law is. In the local language, and I think it
was raised before, these concepts may not be understood or even used. Sometimes
it is important to even just have glossaries, and that is something we have done.
With the support of certain donors, we have made glossaries to explain these
concepts in the local language and in the local context.
What would work in Columbia or South Africa may not be what people
connect to in Sri Lanka. It is necessary to have buy-in, to have ownership, but
also, we need to be very mindful of fatigue. Thirty years means people have had
these conversations and disappointments for a long time. In terms of fatigue, how
108 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
do you also look at it in a new lens? Is it possible to inject some energy or
excitement? I will leave it at that.
OOLA:
I will keep my reflection very open at this state because I think Chris
[Dolan], in the morning, already discussed many of the issues we are confronting
in Uganda, but also because, at the moment, I find myself in South Sudan where
I am learning a lot and developing an appreciation of how the different contexts
vary.
I want to start by agreeing with many of the conclusions that were made
today, in particular, the comment by the keynote speaker, that transitional justice
has become center stage in the past three decades, partly because of the rapid
research, documentation, and development in this field. Importantly, I think
transitional justice has been accepted as a distinct field of study and field of
practice separate from the human rights discourse. I think this is evident from the
growing databases.
If you see, there are a growing number of transitional justice institutes,
growing number of journals, growing numbers of networks, growing numbers of
toolkits and guidelines at all levels. We are now beginning to see master’s courses
and degrees awarded to transitional justice experts. Of course, we also have the
International Center for Transitional Justice (ICTJ), which, for many people, is a
barometer for whether or not transitional justice is happening.
I think it is also time to reflect on the impact of these breeding grounds
and guidelines that we have in place. For me, I think the growth of transitional
justice over the last thirty years has two distinctive features. One, there is a lot of
movement in transitional justice research. Two, there is very limited impact on
the ground, or at least transition as we expect. In other words, the impact of the
growing body of transitional justice research and initiatives varies depending on
the extent to which a particular society is conforming to the agreed, automatically
prescribed notions of transitional justice. I want to look at this impact at three
different levels: starting at the local level, which I call the grassroots. I will look
at it at the national level, and at the international level.
At the local level, we are more familiar with, in particular, northern
Uganda. There are a lot of creative non-judicial transitional justice processes
going on there. These, unfortunately, have not been the focus of much research,
because they do not fit into the toolboxes that we have. Things like traditional
rituals are not a subject of these discussions nor examples that are cited, but the
formal mechanisms, as Chris said, have stayed in the center.
I also think the reason these mechanisms have been ongoing and, perhaps,
more effective in places like northern Uganda is because there is less dependence
on expert advice and donor conditionalities. I suggest, going forward, that, maybe,
transitional justice researchers should pay more attention to these locally driven,
very creative, non-formal mechanisms, not with the intention of professionalizing
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 109
them and formalizing them, but to learn some critical lessons. And, where
necessary, I would like the resources to support our transitional justice learning.
At the national or state level, I think I can summarize the impact of
transitional justice research more in terms of experimenting or documenting the
formal processes, like truth and reconciliation commissions. This space largely
has been dominated by transitional justice studies and comparisons of whether or
not these particular mechanisms comply with the prescribed guidelines. Many of
them have been donor driven and based on expert advice.
As I said and Chris said in the morning, many of the experts are former
interns to many of us in the Global South. Two, three years later, they return as
international advisors to the government. With this endless policy prescription,
we have seen endless transition. We do not know when the transitional justice
process will come to a stop. In Uganda, we have spent nine years developing a
transitional justice policy, and we are still waiting for when the implementation
will start.
At the international level, I think transitional justice has been treated
largely as an extension or application of international human rights law,
international humanitarian law, international refugee conventions, and the rest,
with total disregard for local politics. As someone said in the morning, transitional
justice policies end up strengthening state institutions that are largely responsible
for the violations. Also, there is a preoccupation with prosecution as an
indispensable transitional justice mechanism at the international level.
There is a lot of imposition of normative standards across all the processes
and repeatedly what has been said, cooptation by lawyers and human rights
practitioners, which is another term to make transitional justice mechanisms
enforce human rights standards even when human rights mechanism themselves
have failed to uphold justice. Of course, we have seen the professionalization of
the field, which somebody, again, said in the morning, takes away the voices from
the victims and the affected communities. In my opinion, I need to make the point
that the ICC, at the international level, is seen as a gold standard when it comes
to a transitional justice process. For local actors to be taken seriously, the ICC
should be involved in their work or their work should be seen as complementary
to the ICC’s work. This ends up being an attack on amnesty laws across different
contexts.
Finally, in conclusion, I want to suggest that there are some lessons that
we can learn from transitional justice at the local level. More importantly, I want
to describe our conception of justice in post-conflict or post-atrocity contexts.
Actually, we have three approaches that I should mention. There is a mechanism
for dealing with any transgression. You can pound out a number of local rituals,
such as mato oput and nyouo tong gweno. Mato oput has been loosely translated
to mean drinking up the bitter. There is nyouo tong gweno: stepping on the egg.
Each of these mechanisms are meant for specific transgressions. None is
considered to be more important than the other, but the decision on whether or not
to implement a particular mechanism is largely based on the appropriateness at a
particular time, and there is no gold standard. Thank you very much.
110 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
SÁNCHEZ:
How to respond to mass violence? Unfortunately, we are having this
discussion in the midst of one of the greatest humanitarian crises we have
experienced globally in recent times. The question this panel broadly discusses,
is: what are we doing wrong or what should we be doing that we are not? This is
the million-dollar question.
To start, I would like to point out that, in my opinion, the human rights
movement has made remarkable efforts to address the greatest problems of our
time. It is never a bad time, however, to rethink agendas, interests, and
methods. And, we should not be closed off to criticism. So, at least, I do not think
that we are in the end times of human rights. I would say that for both the logic of
rights and the mechanisms used by the human rights movement we can apply that
idea attributed to Churchill: that democracy is the worst system of government
except for all those other forms.
But there are at least four issues that haunt me in my academic reflections
and in my professional practice as a human rights activist and as a supporter of a
negotiated transition in Colombia. I admit that none of them are new and that there
has been much said and written about each, but we continue to find a rocky road
ahead of us.
The concept of justice:
The international transitional justice industry continues to defend a very
limited idea of justice, which is difficult to extend to new contexts. The liberal
democracy recipe of the 1990s is confronted with different visions of political,
social, and well-being expectations in many societies. If the discussion of the
conflict prevention and management model is not part of those expectations, any
intervention formula will have limited sustainability. For example, I think that at
this point we should stop wondering if the transitional justice agenda should or
should not include economic, social, and cultural rights, but rather ask ourselves,
in cases where this is already the situation, what should the approach look like so
it can be more productive?
Timing:
We must stop thinking about transitional justice as a transitional tool that
is applied immediately after conflict. First, because this vision gives very few
prevention tools (beyond non-repetition efforts). Second, because in some cases
transitional justice could serve, modestly, as a tool to cease hostilities, as I believe
has been the case in Colombia. Third, because experience has already shown us
that the tasks of transition generally lead to long, complex and extensive
processes. The idea of a clear entry and exit point for transitional justice
intervention seems increasingly unrealistic.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 111
Preferred mechanisms:
It is time to talk about the legal fetishism that the human rights movement
has imposed on transitional justice strategies. The obsession with the law and, in
particular, with criminal law and punishment, each time contributes less to the
prevention of massive atrocities and to what to do in the aftermath. This is not a
call to regress in the fight against impunity; rather, it is a reflection on how to put
it into context and how to make the most out of its potentialities, but without
believing that it is the magic wand of conflict prevention and the construction of
coexistence.
Ownership and the capacity of driving change:
Despite the mea culpa of international organizations, academics, and
global activists, transitional justice interventions are still made mostly as foreign
impositions on communities seen and treated as savages. And, in many cases, just
like these interventions arrive out of nowhere, when you least expect it, they are
gone. We owe ourselves many discussions and reflections about the ethical
pedestal from which we propose our activism and research, about the interaction
with the people in the field, and about our own agenda and the interests and
expectations of those we find in this path.
!
SONGA:
I will endeavor to just give a few perspectives based on some of the
interaction we have had, especially from the Kenyan context.
Mass violence and how a society emerges from it is a significant
determinant of the trajectory transitional justice takes in terms of: the actors
involved, the mechanisms employed, the level of public support, and whether it
will be sustained or not. Where mass violence concludes with a clear-cut victor-
vanquished dynamic, criticisms of victor's justice emerge where mechanisms are
claimed to prioritize the punishment of the vanquished through tribunals and other
prosecutions to the exclusion of the transgressions by the victor who possesses
absolute political power. Where a society emerges from an episode of mass
violence through mediation and peace agreements, the imperative to silence the
guns (to borrow the parlance of the African Union) by bringing the parties of the
conflict to the table comes face-to-face with the transitional justice aspirations to
make a clean break with the past, which should ideally include the exclusion of
those culpable of mass atrocities from political life, as well as holding them
accountable for their actions.
This latter scenario has made mediation/peace agreements a transitional
justice issue since it establishes the basis for a negotiated sense of justice while
also detailing or preempting the manner in which transitional justice is carried
out.
43
This opens the door to multiple actors including politicians, religious
43
Godfrey Musila, Learning on the Job? The 2007-2008 Crisis and Role of the African Union in
112 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
leaders, victims, the public, and civil society to shape the aftermath of mass
violence, but they are heterogeneous in their different interests and priorities.
One example is the Kenya National Dialogue and Reconciliation
(KNDR).
44
CSOs made an immense contribution to the mediation process. Their
submissions and meetings with the Panel of Eminent Persons who steered the
KNDR contextualized the crisis and helped it to formulate appropriate corrective
measures. They described the extent of the crisis, the atrocities committed, and
the probable outcomes if the negotiations failed.
45
However, the question of
ownership persists. Are these truly participatory processes or elitist agreements?
Mediation provides different opportunities for transitional justice in
different contexts: it can open the door not just to silence the guns but also develop
a comprehensive reform agenda that addresses underlying issues as a pathway to
future conflict prevention. In Kenya, the national dialogue and reconciliation
process provided not only a peaceful settlement to our post-election violence
crisis, but also a framework for transitional justice on the basis of its agenda items.
These called for: 1) immediate action to stop violence and restore fundamental
rights and liberties; 2) immediate measures to address the humanitarian crisis and
promote healing and reconciliation; 3) how to overcome the political crisis; and
4) addressing long-term issues and solutions.
46
Articulating a broad-based agenda and its ratification in peace-agreements
does not necessarily denote true consensus or the long-term commitment that the
agenda suggests. This brings to the fore the challenges in reconciling the
objectives of peace agreements and transitional justice agendas. The political
consensus that is considered essential to peace agreements can become a
hindrance to transitional justice processes. This can be seen, for example, in the
experience of prosecutions, in cooperation with truth commissions, and in the
implementation of the commission’s outcomes, especially the case when there is
no true transition. For example, in Kenya’s coalition government and subsequent
administration, where persons who were the subject of prosecutions also are at the
apex of government. It reminds me of the quotation: “power is power; once you
obtain it people find ways to accommodate you.” Victims, victim groups, and
stakeholders, such as civil society, have different levels of interest, involvement,
and commitment at different stages based on their resources, competencies, and
external influences. For example, Kenya’s peace vs. justice and prosecutions vs.
Transitional Justice in Kenya (Dec. 18, 2011) (unpublished manuscript), available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2539955.
44
See generally SOUTH CONSULTING, THE KENYA NATIONAL DIALOGUE AND RECONCILIATION:
BUILDING A PROGRESSIVE KENYA (2011), available at
https://reliefweb.int/sites/reliefweb.int/files/resources/Background-Note.pdf (providing background
on the creation, goals and outcomes of the Kenya National Dialogue and Reconciliation initiative).
45
OFF. OF THE AU PANEL OF EMINENT AFRICAN PERSONALITIES, BACK FROM THE BRINK: THE
2008 MEDIATION PROCESS AND REFORMS IN KENYA 30 (2014), available at
http://www.kofiannanfoundation.org/app/uploads/2014/08/backFromBrink_web.pdf.
46
SOUTH CONSULTING, supra note 44 at 1.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 113
reparations debates and how these changed with the entry of the Kenyatta
administration.
Conclusions:
• There are limits to the impetus for transitional justice provided by mediated
settlements/peace agreements and the imperfect transitions that accompany
them, and we must resist the temptation of unrealistically overloading it with
expectations of fulfilling a broad-based agenda within a rigid structure and
on timelines that reduces aspects of it to rhetoric.
• Linkages must be made between the classical transitional justice and broader
agendas such as democratization, rule of law, and a long view adopted by
stakeholders in terms of support from the State, donors, civil society, and, in
some cases, the international or regional mechanisms that midwife peace
agreements.
• Emphasis on or preoccupation with criminal prosecutions risks obscuring or
inhibiting the opportunities presented by other mechanisms such as truth,
justice and reconciliation commissions, and reparations. We should not view
the failure of prosecutions as the end all of the transitional justice agenda. For
example, in Kenya, we have had to engage with the Kenyatta administration
to further the discussion of reparations even in the absence of prosecutions.
• Connection with the processes are key: we speak of victim-centered
approaches, but how do we realize them? How the agenda developed, the
priorities identified, and whether there are sufficient feedback and grievance
mechanisms that respond to victims’ needs are key indicators. Kenyan
victims’ negative experiences with the ICC’s Trust Fund for Victims
47
is
instructive in this regard.
• Should it be about transformation? I submit to you the words of Albie Sachs,
former judge of the Constitutional Court of South Africa: “Unlike transition,
transformation never ends; our society needs constant renewal. It is we the
People, who produced our Constitution, and it is We, the People, who must
ensure that its full vision is achieved. In our lifetime.”
BURT:
Thank you so much. Let us open the floor to comments, questions, and
feedback.
BICKFORD:
Really interesting panel. I felt like there were a lot of leitmotifs here that
are interesting to me and that really resonated with me. I wanted to try and see if
47
TRUST FUND FOR VICTIMS, https://www.trustfundforvictims.org/en/home (last visited Mar. 1,
2018).
114 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
I could sum them up in some pithy quick formats. One of them I would call
something like the paradox of best practices. That is, we are at a place, in terms
of professionalization in this field, that you lose some creativity. I will come back
to each of these.
Second is the problem of putting the tools before the goals, which I think
is a very big problem in this field. I think that we, when I was at the International
Center for Transitional Justice—I am sure it is not like this now—but I think I
was very guilty of that as well. I will come back to that.
The third is kind of putting the product or the outcome over the process
and the real importance of reinventing the wheel. We have this expression in
English, you should not reinvent the wheel, as if there is an axiomatic truth to that.
In fact, if you want to learn how to build a wheel, if you want to really make a
good wheel, and you want to do capacity building around wheel building, then it
makes sense to reinvent the wheel. That is the third idea.
On the paradox of best practices, I think we are at a place where there is
so much experience and so much knowledge and so much of a field here that we
think we know the answers, in spite of the fact that everyone here is saying we do
not know the answers. The problem is that—and this fits into the tools, to a certain
degree—we do have a checklist approach, I feel, to a lot of this stuff. You are
supposed to have a truth commission, and it is supposed to look like this. We
really do know the best way to develop selection panels for truth commissions.
We really do know the best way to approach all of these kinds of questions. This
is wrapped up in people’s careers and in their scholarship and in their self-identity.
All of that is not trivial. What it means is that we sometimes lack the
creativity. I have seen this directly. I arrived in Liberia—I have only been there
two or three times, so I cannot speak really definitively about it, but my experience
was—I said, “What’s happening here?” They said, “Oh, we have a big truth
commission.” I said, “Oh, why?” They said, “I don’t know. We have a big truth
commission.” This also fits into tools before goals.
The answer was, “We have a truth commission. We got a truth
commission,” and the emphasis was on the truth commission. When I had a
number of conversations, I said, “Well, hold on a sec. What’s the goal of the
truth—why?” When it came down to that, it seemed like the truth commission,
maybe, was not the best tool. Maybe the best tool was drawing on oral history
traditions, drawing on other kinds of traditions, something that would be far less
expensive, something that would be far more deeply rooted in other practices, and
existing institutions.
I also had the same experience around a truth commission in Nigeria when
I arrived there. They said we were going to have a national conference. The
national conference was going to deal with all this, but the donors wanted a truth
commission, and all the experts flew in—I was one of those experts—and said,
“Here’s a checklist. This is what a truth commission is supposed to look like.”
That is a big problem. We did that at ICTJ, and it was with the best intentions.
The tools part is where we spent so much time at ICTJ, talking about perfecting
the tools. It was these mechanisms.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 115
That was the word, mechanisms. The mechanism, mechanism,
mechanism, mechanism, mechanism. Less discussion, nowhere near enough
discussion about the goals that you are trying to accomplish. By the way, what are
those goals? What are those goals? I will tell you, for me, after twenty-five years,
I have come to the conclusion that what I think is most interesting about
transitional justice is actually the construction of narrative. I will put my cards on
the table. That is what I think it is. The fact that Pinochet did not go to jail is
actually irrelevant to me. What is relevant is that there was a narrative constructed
in Chile about the dictatorship that was very powerful and important and changed
over twenty years. Anyway, we need to think about those goals. It makes a big
difference what tools we are going to use, depending on what the goals are.
If the goal is construction of narrative, you look for voice. You look for
empowering voice. You look for history. You look for text. You look for trials,
but you look for trials to construct a narrative. Paradigmatic trials are going to
help you construct a narrative. Different goals have different tools. Product over
process, we need to start these processes saying, “Okay, what’s the goal?
Let us build towards the goal. Let us build our own mechanisms and our
own tools, and then let us fly in international experts to help out if we have a
specific question about our tools and goals, not right at the beginning to set up the
checklists and explain. Again, been guilty of it myself, and I feel like it was a big
mistake we have made all along. I think we need to now say, “Okay, the humility
of best practices should be that we are actually going to start a lot of these
processes earlier and build them up from the ground up.”
ROBINS:
What I would like to do is take the language of victim centeredness at face
value and ask what that would actually imply. This, I think, addresses Harvey’s
[Weinstein] question, who is the client? I think the victim has to be the client. I
take that to its logical conclusion and ask, what is justice, and who defines it? I
would say the victim does that. What we have is a normative practice that is
legally defined as rights-based, and I think the goal of that practice, if we are
honest, is liberal democracy. That is the goal.
It is a hugely ideological apparatus, which is why there are these assertions
that research is not political. If you are doing transitional justice, you are doing
politics. It is ideological. We should be honest about that. That is why we talk
about civil and political rights and not social and economic rights, and why
Pablo’s [de Greiff] discussion, as Nelson [Sánchez] said this morning, I think, is
unconvincing. It is politics that dictates a focus on civil and political over social
and economic rights, because you do not need social and economic rights to
integrate an economy into global neo-liberalism.
The practice we have is global. It is prescriptive. It is mimetic. It is a self-
interested industry that defines the shape of transitional justice as elite and
metropolitan. That maps onto North and South. I would argue the victims, despite
the rhetoric, are instruments of this. They are witnesses in trials; they testify in
116 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
truth commissions. They are not agents. That is what participation means. It
means somebody tells you what to do, and you do it on their terms.
There is no agency. They are rarely and only partially beneficiaries on the
terms that they would define. That is why we need a bottom-up approach. We
need exactly the sort of practices that are invisible to international transitional
justice practice that Stephen was talking about earlier. We need to find a justice
that can be defined by those who most need it. Can I make one more point?
My final point is, if we know what the goals of transitional justice are,
how does it work? Again, Pablo, this morning, mentioned the great successes, but
you have got a very complex post-conflict, post-authoritarian society. How do you
know the outcomes that you attribute to those two or three formal institutional
mechanisms really came from that when you got all sorts of stuff going on there?
What is your theory of change? How does a truth commission deliver what you
claim it delivers? How does a trial stop repetition?
I do not know. No one can tell me. If you do not have a theory of change
or a credible explanatory mechanism, how can we test it empirically? It is an
article of faith, the whole institution of transitional justice, an article of faith
driven by normative engine of rights. To guide future practice, we need to know
how these things work. You need to tell us that, and then we need empirical data
that can test that. Then we can have a practice that is evidence based, not faith
based, normatively based, and politically driven.
QUINN:
One of th e things that Stephan [Parmentier] said earlier today was about
transitional justice mechanisms having been used, but systems and structures still
continuing to exist. Farah [Hached], when you were speaking earlier this morning,
this really hit home to me, in part, because in Canada, for example, we are having
a conversation right now about settler colonial effects. What is different than in
“regular” colonial places is that the settlers never left. The settlers are still there,
they are still in power, and so on. In thinking about, based on thirty years of
research and practice, what is it that we should be doing? I do not know how
transitional justice maps onto places like that, but I do know that it falls short.
Are there things that we could be doing? I think, when Stephan pointed
that out this morning, it is something that my students and I and people in my
world tend to think about quite a lot. I think that that is something that transitional
justice people like us need to think about, which is employing and continuing
deploying and redeploying these kinds of mechanisms without any kind of change
or upset or unsettling is problematic.
PARMENTIER:
I do not want to sound repetitive. I think Louis [Bickford] and Simon
[Robins] said a lot of what I wanted to say already but let me briefly summarize
in three points. First, it seems to me that it is time to start separating mechanisms
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 117
from issues. Our toolbox approach or toolkit approach is all about the mechanisms
and perfecting them. Thank you for your self-incrimination, by the way, and some
confession. It is a form of justice after all, in the long run. Justice being done to
yourself. The idea of mechanisms does not make sense—and I completely
converge with you—without knowing what you want to achieve and what is to be
achieved, maybe, in some ways, or how empirically it works? In our work, we
have been trying to look at key issues that will have to be addressed in some way,
but the way in which they are addressed can be very open. Some of the key issues
are accountability, like reparations and so on, but how they are actually addressed
is a different thing, whether it is through courts or tribunals, or other kinds of truth
commissions, or whatever. It is up for debate. I often compare it to the discussion
in human rights between universalism, under one hand, and uniformity. These are
very different notions that we seem to conflate. I think it could be useful to
separate them. Something can be universal and, yet, be very different in practice
or in outcome.
Second, prevention over cure. I think we need to pay much more attention
to issues of prevention, whether it is early warning, or even that is too late.
Possibly so. Not only for ethical reasons or to reduce the potential suffering of
victims and society in general, but even for economic reasons. It is actually much
cheaper to invest in prevention than it is in the cure. Imagine just thinking—and I
give this to the students as an example—of the mind-boggling budgets that
international courts and tribunals are consuming every year. This is not to say that
it should not be spent, but is an equal amount then spent on prevention or on the
Trust Fund for Victims, for example, which is a voluntary fund? Huh? Imagine at
the ICC; it would save us a lot of hassle and trouble later on if we were to invest
more in thinking and in designing mechanisms of that nature.
Finally, I think many of the problems in transitional justice research and
activism are based on the prescriptive nature of it. This is more the
interdisciplinary or the disciplinary perspective. It is often very prescriptive, very
normative, and, as you rightly say, where is the evidence? Let us try to investigate
things, explore things, try to explain, if possible. You need other techniques and
other tools for that.
Even talking about tools, which mean social science tools, not only at legal
perspective or not only prescriptive perspective. In that sense, I heard Pablo’s [de
Greiff] plea, also, as one to enlarge the field and to try to involve many more
disciplines, the theory of change, the particular empirical ways of dealing with
outcomes and processes, and so on. It will have to change if we are going to make
progress, I think, in the next couple of decades.
PEMBERTON:
Following on from something that Simon [Robins] just said, that the end
goal of transitional justice seems to be liberal democracy, and I think I would very
much agree with that. That also brings to mind then a distinction that Jeremy
118 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
Waldron made between thinking about the questions that we face as either
circumstances of politics, or circumstance of justice.
48
It strikes me that transitional justice falls very heavily under
circumstances of politics, which is where basic political questions still need to be
answered before circumstantial justice can fully be dealt with. It strikes me that
transitional justice also falls into a trap of having a rush to justice when, still, the
basic political sphere has not been developed. That does also mean that I do not
think that we can actually do the thing that I think Simon was also suggesting, that
we can do away with politics, then.
Essentially, transitional justice would then always be a vehicle for politics.
Maybe one of the things that we are also addressing is that we stand to set up
procedures or mechanisms as we perceive to be neutral and to perceive to be a
void of a politics and then place them in a situation in which basic political
questions still need to be addressed. I think that is probably the mismatch that we
keep confronting in these situations.
MIHR:
Just to add to the debate about measures, instruments, etc., that, Camilo
[Sánchez], you also raised and Louis [Bickford]: I would like to plea for the fact
that transitional justice has been extremely adaptive over the last decades,
actually adding measures, mechanisms, and instruments. I would like to stay
with the terms because, again, coming from the European experience,
transitional justice—even if some similar terms existed in the 1950s after World
War II—they would have conceptualized that, for example, memorials or
amnesties would be part of it.
It also shows that the whole concept of transitional justice has been very
adaptive. Nevertheless, this is where I come back to how I understood Pablo [de
Greiff] today. Therefore, I would disagree with your disagreement, if you will
allow it.
From what I understand, most of the positive experience on the impact of
transitional justice measures we have thus far, have been in countries where there
was some sort of institutional or bureaucratic institutions and inheritance.
However autocratic or totalitarian the regime was, there was at least some sort of
what you could call a court, police, other administrative institutions, or whatever.
During the transitional justice process, one could build on this, reform the
institutions, enhance them, etc. Whereas, now, the last decade and longer, we have
encountered countries—and he mentioned, I think, Sierra Leone and the DRC in
48
JEREMY WALDRON, LAW AND DISAGREEMENT 102 (1999) (defining “circumstances of justice”
as “those aspects of the human condition, such as moderate scarcity and the limited altruism of
individuals, which make justice as a virtue and a practice both possible and necessary”; and
“circumstances of politics” as “the felt need among the members of a certain group for a common
framework or decision or course of action in some matter even in the face of disagreement about what
that framework, decision, or action should be”).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 119
particular—in which governmental and state institutions have never really been
in place or were fragile prior to and during the times of conflict.
Sudan is another case where, of course, we have to explore new methods,
more narratives, definitely, in traditional mechanisms. There is no doubt about it,
and I have not heard anybody seriously, in this conversation, demand that we
apply the same measures that we applied in West Germany to South Sudan. That
would, I think, completely be out of context.
We have to be open-minded and see, what kind of measures and
mechanisms we can take from past experience that can be adapted to particular
situations and which ones we can just drop because they do not suit the timing,
sequence, or circumstances? Not all measures that work in one country in the
first ten years will work in another context. Nevertheless, today, I think there is
enough evidence on how each transitional justice measure can or cannot
influence regime and societal transformation. Sometimes we have research
about just one measure, trials, memorials, amnesty laws, or whatever, so
extensive that we know, nowadays, more or less, how even individual measures
or mechanisms function or do not function in the anticipated way; for example,
whether or not trials lead to more enhancement of the culture of the rule of law
in a country or not.
WEINSTEIN:
I have some questions. First, is anyone willing to do a trial of post-conflict
justice in which you do not use any of the current methods that we now call
transitional justice? No truth commission. No trial right away. Actually going into
the country and finding out what people want to have happen—other than
stopping the fight. Is anybody willing to try do that? Second question, are we
trapped by our experience? Law works with precedents, and it seems to me that
we keep going back to the precedents. This question is phrased, what should we
be doing?
Well, so far, I think, hearing from most people, we basically should be
doing the same things, maybe tweaking a little. What stops us from being creative
and saying—I have surveyed lots and lots of people, victims in Uganda and
Rwanda and Bosnia and Kosovo, and when you ask questions, you get very
different kinds of answers—what do victims want? They want to feel safe. They
want to feel secure. They want education for their children. They want to have
jobs. They will say that right after the violence is over, such that while millions
of dollars are being poured into trials that may satisfy some parties, I am not sure
that it is necessarily satisfying victims.
Let me get around to this word “victims,” because the word has come up
a lot. Victim, victims. There is no single victim. There are many people who have
been affected, and they are affected in different ways, often because of what they
have brought to the terrible events, often because of what they have experienced,
and they often want different things. We have homogenized it into one thing that
120 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
everybody should have. The question is: why do we do that? Do we do that
because it makes us feel better? I am not sure.
The last point gets around to your question, Borislav [Petrov], about
money. Let us talk about money. We all know millions and millions of dollars go
into the trials and truth commissions. Are we happy with how we are spending
this money? Given the fact that we are not entirely clear about what our goals are,
why are we pouring all this money into it like this? Should we have poured money
into Sierra Leone’s health system before Ebola threatened the entire world? There
are ethical choices to be made, but we do not discuss these ethical choices.
The last thing with respect to money is that, if funders want something fast,
that means that their goal is to see very specific mechanisms for something in the
short run, and they do not really want to fund the long-term goals. They are not
interested in democracy, democratization, or building long-term institutions. That
is the fact. Then the question is, does that then become development? Well, do
development folks really understand what has happened or the implications of the
repression or atrocities? Again, we have the silo problem.
FLETCHER:
I guess, in the spirit of confession and self-incrimination, I will say that I
started this work committed to norms. I migrated to evidence-based work and was
very interested in measurements and thought that that would tell me more about
how I should think about norms and their deployment. I have, maybe, come full
circle, or in a spiral, back to norms, in part. We say we need evidence-based
practice as though we think that the evidence will tell us something that we can
define as working or not working.
We are talking about, in situations of mass violence, a catastrophic
violence that has had widespread impacts. We use, with the goal of a liberal
democracy, rights as the language in which to talk about them. That is, essentially,
a normative project. We do not put rights up to a vote, because they instantiate
values that we think are important, even if we cannot realize them. The fact that
we cannot try everyone does not become an excuse not to try anyone. We do not
decide whether or not we are going to have a voting system or we are going have
a water system.
These are competing priorities. They compete in a budget, but they are
both recognized as rights, the right to water and the right to justice. I think there
is something valuable there, and I think that we create a false dichotomy when we
think either we are going to fund the ICC, or we are going to fund something else,
because I think that, as a practical matter, that money would not be transferrable.
These are political processes, and what is available for one project will not be able
to be transferred to another. We make it seem as though this is an equation we can
manipulate.
I do take very seriously this idea that we have this gap between a top-
down templatization checklist of what we should be doing, and what are the
priorities on the ground. This is discussed in a book that is been around for a
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 121
couple years by Stephen Hopgood,
49
who talks about Human Rights in capital
letters and human rights in small script with the idea being that human rights may
be the label that we give a broadly-based social and political program of anti-
subordination, and we package it into rights, and we professionalize it, and we
institutionalize it, and it becomes something else. Can we get back to, can we fit
everything into a rights-based framework?
I am not sure, and that is one of the limitations of rights. Can we then take
seriously a question of reinterpreting what those rights are from the ground up so
that, when we are using a rights-based language and we are asking about priorities,
we allow that it might look different in Kenya than it does in Syria at different
points in time? We do not abandon rights because we cannot realize them all at
the same time. I feel that that is a little bit of where I worry the conversation goes
when we say everything needs to be measured—not everything, I am overstating
for the purpose of discussion—but not everything we care to know can be
measured.
HODZIC:
I have so much to say—but I will not. I will just try to express something
that is not a full-blown sense of frustration, but is slowly building up at the way
that our discussion is dispersed and how I am losing the site of the goals, as Louis
[Bickford] put it, in terms of, where do we want to go? I find a lot of what is being
said, sometimes, decontextualized from the reality of what these situations are
like. What is it that we are dealing with? Here, in talking about mechanisms,
whether they are necessary, or do we have alternatives?
We seem to simply disregard the fact that there are frameworks or State
obligations that have been adopted and that are imperfect, but that is what they
are. Try, and honor, and things—she said that she had an hour with a minister in
Germany. Try talking to policymakers who make these decisions outside of these
frameworks. They are terrified immediately. Do not be creative. I want to fit this
into something that I know. Ninety-nine percent of them do not actually know
what we take for granted that they know. When we say transitional justice, they
immediately think, “Does it fall into human rights, or does it fall into
development? Where is the connection?” For us to start questioning that without
actually going to the table with something and saying, “Okay, this does not work,
so let us go back to the 2004 report and change it,” I think is wishful thinking.
In terms of realities on the ground—and something I wanted to talk about
in response to something Andrew [Songa] said—I think, also, we have to be clear
about, what it is that we are talking about here. If we are talking about mass
atrocity, there are certain things that happen in order to allow for mass atrocity,
like dehumanization, like the complete shift in identity, in how people see
themselves and how they see their brother, their neighbor which allows them to
be able to slit their throat and think they are doing something good. That is key.
49
Stephen Hopgood, The Endtimes of Human Rights (2013).
122 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
They do not see themselves as evil orcs from Lord of the Rings. They actually
think they are doing a very difficult job that no one else wants to do for their
people, for their group. I know, because I experienced this. To get to that point,
there has to be an effort—a huge effort—invested to dehumanize the other to the
point where you see them as a problem, as vermin that need to be removed.
Transitional justice deals with this. It deals with this. The tools that we
have are imperfect, and I am with Louis on this. I think that narratives, issues of
identity, not only ethnic or state identity, are important. Transition states are
looking for a new way to identify, to build identity. What they do ninety nine
percent of the time is go to the past to find the source of this. In the past, they find
enemies. They find the other, always, to set themselves apart. We have to take
that reality into account when we are talking about this. If we have other ways of
restoring victims’ dignity, let us not forget, in all these polarized societies, people
who perpetrated or supported these crimes always play a significant role. What
Fredy [Peccerelli] was talking about, of course, in Guatemala, State institutions
are manned by people who committed crimes because that is the reality. Of
course, in Bosnia, that is the case. You are building a new society with these
people. You cannot expel them all or imprison them all. This why it takes such a
long time. In that kind of reality, excuse me for just, very briefly, going to my
presentation that was not to be.
When you say how criminal justice processes changed Kenya, imagine
former Yugoslavia in which, as I said, in ’93, we had no choice. Still, we were
killing each other when this enormous new entity landed upon us with one
message: we will give you justice. That is all you want to hear. All you want to
hear is that someone will actually come and provide this justice. It framed
everything.
What it did and what criminal justice processes do, as you know, is turn
the issue of justice into a continuation of war by other means. We finally had an
arena in which it was, again, us against them, only in other roles. That completely
annihilated any talk of State responsibility, any mention of issues like forgiveness,
for God’s sake. He who forgives, be damned to eternity. No acknowledgement of
the other and their suffering. It was all about: “I want a victory. I lost, and I want
a victory, this time in court.”
Expectations were built to the point where you could not meet the
expectations of Bosnian Muslims—I come from that group—if you had every
single Serb quartered on the public square. That would not have met the
expectations, because we want billions in reparations. We want them to be marked
as genocidal for eternity, because that is what these processes feed. I think that
discussions of consequences always have to go back to context. Context is
everything.
I just want to say to Louis, I fully agree. I fully agree, and I am very happy
to say that ICTJ is getting to the point—we are publishing a major work in a month
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 123
or so,
50
which will basically set out this case. The context is everything. In certain
cases, it will not be any of these mechanisms. It will be your local imam who will
be in the best position to provide witness support, witness protection, and justice,
because he will be able to humanize the other. This has nothing to do with any
policy framework that we know but is the reality on the ground.
My greatest fear is—I was just in the Hague, discussing this mechanism that has
been adopted by the U.N. General Assembly—on the policymaking level, we
are still in 1991. That is where we are. The Office of the High Representative in
Bosnia and Herzegovina and the United Nations are still slotting these ideas into
the frameworks that date back to that age. Nothing has been learned. Mark my
words. Nothing has, from all the work, from all the experience, still, the wheels
of the United Nations, when they start, they simply just go. You can stand in
front of them, be run over, and left as a pancake on the road. That is the reality,
and I do not know what we can do, but I would really like us to talk about, what
can we do? What can we as a group, do?
HACHED:
To comment on this, during the lunch, we discussed why Tunisia did not
go to an internal conflict and why we chose the national dialogue. It is a question.
Why? The context, of course, because we are a homogenous country, society
maybe. We are a small country. In my opinion, there is something interesting:
culturally, in our families, we are educated for compromise. Any Tunisian you
speak with will tell you, “In Tunisia, we always look for compromise.” We are
used to hearing that.
We have an expression. When two children in the house are in conflict,
fighting, always, the parents tell them: “Kiss your brother, and then we talk.”
First, we have to feel that we belong to the same family. Then we talk, and
sometimes we do not talk. Sometimes the one who was the victim will not have
justice, because the compromise, the conciliation—not reconciliation—is more
important than justice, actually. Now, also, the people from the old regime for
example, they are using that for reconciliation., saying, “Now, it’s okay. We shall,
altogether…,” the same way.
Is it good? In the long run, I do not know. Until now, it worked. People
who were educated differently, Tunisians who are educated differently, maybe
they do not accept that because they think it is a frustration for justice. Maybe, for
the majority, it is not such a big frustration. I do not know. It is a question mark.
I do not know.
50
Int’l Ctr. for Transitional Just., Justice Mosaics: How Context Shapes Transitional Justice in
Fractured Societies (Roger Duthie & Paul Seils eds., 2017).
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HONDORA:
I raised my tag when I heard an intervention suggesting that transitional
justice mechanisms could or should depend on context, that those in Germany, for
example, follow a unification, would necessarily be different, say, from Sudan or,
say, Sierra Leone. I want to challenge that by perhaps asking the question, are the
transitional justice needs, not mechanisms, between, perhaps, those and the so-
called Global South, those and so-called Global North, any different? Secondly,
is it true, can it be true, that the mechanisms deployed would depend on that
context?
I will be the first to admit that context, context, context—as everybody
has been saying—is absolutely important, but there are certain basics that I think
are universal. All the others will depend on what you deploy, and how you deploy
a particular mechanism. How it is played out in a particular country should be
influenced by what is really happening on the ground, by the demand for security,
demand for justice, demand for non-recurrence, demand for development. Those,
for me, are pretty universal.
V.
CLOSING REMARKS
MIHR:
First, what was the common narrative of this whole day today, and what
is common through all the sessions? I noted three things and I hope you can share
the observation or add to it later on.
First of all, we started off this North/South more about the differences and
less about the similarities. In the first hour, it became clear it is difficult to stick
with this divide. It is actually a global dialogue, if you want to call it a dialogue
at all. The divide is more or less a power divide and less a societal one. People
want peace and stability everywhere around the world, but the ways in which this
is aimed at, are different. These power divides, or imbalances of power exist,
whether it is about who benefits from it, who has the strength—these were the
terms I use—the power, the influence, the money, etc.
Secondly, we look very much at the individual, the victim or the
victimizers, and even used the word empowerment of individuals, not empower
of political institutions. But the empowerment of the individual very much
depends on partnerships, on donors, on states, on institutions, even on
international organizations. It can also depend on ideologies, on traditions, etc.,
etc. This power idea, I am sure this is not the end of the discussion. Maybe it is
the beginning of a discussion and identifying where the divides are.
A third element that came through, in particular, now, in the last session
was this: what is the purpose of transitional justice? I think we are not wasting
time—when I say we, I mean the community and for the next however many
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 125
foreseeable years and decades—to spend time on rethinking, what is the purpose
of transitional justice measures? Individual or institutional change and
empowerment, or both and to what extent? What are the possibilities and what are
the limits of transitional justice?
Yes, the context has changed, so we have to think about the purpose of
transitional justice. Not abolishing it entirely, but maybe thinking about it and
how we aim to use it. For example, whether we use these measures for democratic
institution-building, or whether it is best suited for individuals, such as victims. I
am sure, from what I understood from you throughout the day, for many people
right after a conflict the truth and fact-finding missions are more important than
institutional reforms. Individuals should benefit from it. Institutions should
benefit from individuals, and so on.
In the first session, we were asking the question: is there a gap between
North and South? That seems to be more of a global dialogue instead of a
North/South or South/North dialogue. The divide is constructed. Nevertheless, the
question whether there is a gap remained and the answer is yes, from what I
understood.
This “yes” was very soon defined. It depends on whether you focus on
institutional transitions or victims, and there is a divide on how the North, maybe,
talks about transitional justice, more institutionally-focused, whereas for the
South, victims are the greatest concern. It is not resolved. There is not enough
justice brought to victims. That came through in the first session. Very soon, this
shifted also to the issue of power.
Another important issue that came up in the first session is that, there is a
certain responsibility issue. Participants raised that there is a particular
responsibility by actors in the so-called Global North, because many of the
problems and conflicts occurring in the so-called Global South are legacies of
colonialism or other interventions in the past and present by States and actors
based in the Global North. And thus, the Global North and South are somewhat
linked by history and the present. Many of the issues of the past will not been
resolved until the Global North, for example, former colonial powers, come to
terms with their own past. That is linked, and there is, maybe, also, a specific
divide. In the first session, also, there was a debate about, where is the raw
material, the research question? Where is the material, and who manufactures it?
In the first two sessions, we addressed the question of research and how
data are obtained. This depends very much on how we have access to the material,
and where we have access. There are some regions in the world where we have
easier access to the material because of language. Some people also brought in
that it is not only the national languages or regional languages, but the need to pay
attention, in particular, to the local languages. If you really want to bring the
benefits of transitional justice down to the local, to the people, this is where we
have to open up. But I would very much doubt that these benefits will only be
constructed and the responsibility of only one part of the world, namely in the
Global North, particularly when it comes to translating experiences elsewhere into
126 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
local languages and contexts somewhere else. I think the Cambodian case that
was mentioned brought this up.
Another issue discussed was on the evolution of transitional justice. There
again, very soon, the discussion addressed the question of: what we are focusing
on when we talk about the evolution and development of transitional justice? Its
core lies in criminal justice, trials, etc. and those dominate much of our current
assessment of how we measure impact, success or otherwise explain any
correlation between transitional justice measures and the transformation of
society. It has evolved, but criminal justice is still very, very prominent in the
whole discussion of transitional justice. But it was also brought up that transitional
justice is also about economic and social justice and not only in political terms,
and that has been already approached in some contexts and some cases of
transitional justice.
The Tunisian case, definitely, is one of the first. I think the Colombian
case is also a lot about social justice. I thought we became more circumspect about
the role of criminal justice during the second session. The roles of the ICC, ICTY,
and ICTR were not mentioned so much, but there was more discussion on how
these instruments and mechanism can contribute to social justice, how to make
the best of them.
There also are different developments on the academic and research level,
and on the practitioner level in the various countries. Something that stuck out
during the debate was, when we talked about practical examples, it was very much
about the dignity, the autonomy of organizations, or individuals, etc., and that the
academic world, which links us to the third section.
In the academic world, a researcher’s job is basically to reflect on the
possible impact or contribution of transitional justice in post-conflict or
authoritarian situations. We came to this in the third session, during which we
outlined challenges and possible problems in this respect. But referring also to
Pablo’s [de Greiff] talk, of course, highlighting that we are still in the beginning
of better understanding how transitional justice measures work across the world,
and that we have to be more self-critical. We are still very State-focused, paying
less attention to societal transformation. This also is due to the fact that many
transitional justice processes are driven by specific donors’ interests.
It was highlighted throughout all the sessions that one reason why we
often focus in our research on States and institutional developments is because we
can better measure accountability processes there than with societal
transformation at large. Measurable results and even clear data and facts are what
donors want to see in reports by their counterparts in the affected countries. They
want to see where the money goes, etc. It is a little bit like the chicken and the
egg, concerning the question of whether donors determine how the transitional
justice processes relate to the actual atrocities that happened. How do we get out
of this vicious cycle and bring the benefits of transitional justice measures more
to the ground, to the people and institutions concerned, and to the practitioner?
One way would be to empower victims–this came up over and over again
throughout the second session.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 127
Then, finally, the fourth session on research combined aspects of the first
and the second sessions. I am not repeating the details, but everybody seems to
agree that we need more of this applied research in terms of what actually—what
this knowledge base transfer and exchange between practitioners and researchers,
between North and South—can lead to. There is a disconnect between the research
and the abundance of knowledge we apparently have, and the practical world,
particularly in post-conflict situations, which to some extent also divides the
Global North (research and donor focused) and the Global South (victim and
practitioner driven.)
These disconnects were, thus, highlighted between the knowledge that we
produce and the concrete situations in post-conflict societies that may vary with
context and country concerned. The disconnects between research knowledge and
practitioner experience; the different disciplines within the research; and the
disconnect among donors and research. Then, an important point made was that
there is already a disconnect in the pre-transitional phase, while a conflict or
dictatorial regime is on-going, between, for example, when South-based CSOs
report on the crimes and the evidence they see and when North-based reporters
do, because of the priorities these “reporters” see in the crimes and violations of
human rights that are happening.
This disconnect in the research data and practice, is also connected to
language and access to information and resources. Hundreds of local dialects,
often particularly spoken by minorities and marginalized groups which are more
often victims of systematic violence, make fact finding and reporting a challenge
of its own. Although we all know this, it is worth highlighting, keeping in mind
that many conflicts and violent outbreaks that merit a transitional justice process
remain unnoticed because of the lack of documentation resulting from language
barriers. If we want to make a difference, we should be aware that these challenges
still exist.
Generally speaking, after thirty years of systematic transitional justice
research, still we are asking the question: what do we actually want to achieve
with transitional justice? We have to look at it more from the end results expected,
from what we really want to achieve with fact- and truth-finding missions, with
trials, with memorials, or with compensation funds. Do we really want to change
and transform regimes and conflict torn societies from an unjust or authoritarian
or whatever society, to a different kind? And, if one of the answers is yes, do we
agree that democracy is still the mode of governance that we aim to achieve with
transitional justice measures? We can disagree on that, but we should not forget
that freedom and justice is the basis of the liberal democracy that many conflict-
torn societies are aiming for.
There were two more points mentioned on the topic of the goals of
transitional justice. One is to secure non-recurrence of violence and injustice: “We
just don’t want this whole thing to happen again.” But this wish for non-
recurrence almost seems to be disconnected from the type of political regime–
regardless of whether this regime is another dictatorship or a democracy. This
suggests that, as long as there is peace and stability, it does not matter. Is that what
128 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
is meant by non-recurrence? I would say not. Some suggested that, for a really
sustainable non-recurrence, we need a liberal democracy to prevent future
conflicts.
Another important theme that emerged was about the benefits for victims,
for the individual. That seems to be something that came up over and over again
during the afternoon and also reflects the composition of the group in the room. I
would, however, suggest that it is critical to also discuss what transitional justice
measures actually give the greatest benefits to the individual, to victims or
survivors of atrocities. Again, this concerns how the benefits to individuals,
mainly victims, are often disconnected from the political regime that exists. But
the type of political regime may very much determine the kinds of trials (open or
closed), what type of compensation will be offered, whether there will be fact-
finding missions and what kind? Whatever one calls it, a transitional justice-prone
political regime is probably more rule of law-based than an autocratic political
regime.
Another point that was highlighted in the fourth session concerns actors
such as donors and policy makers or CSOs, and their inclusive or exclusive
involvement in a transitional justice process. That often determines the outcome.
We had the experience from Kenya’s transitional justice process, in which one
had to include a certain group of actors and stakeholders and leave out others,
otherwise, it would not work.
I think I will leave it there. Thank you so much.
PARTICIPANT BIOGRAPHIES
LOUIS BICKFORD
Louis Bickford directs MEMRIA.ORG, a new social
enterprise dedicated to collecting, analyzing, and
distributing personal narrative accounts of past violence.
Until recently, he managed the Global Human Rights
Program at the Ford Foundation, where he supported the
international human rights field and worked with human
rights organizations in every world region.
Prior to joining the Ford Foundation in 2012, he was on
the Executive Leadership team of the Robert F. Kennedy
Center for Justice and Human Rights, where he also acted as the Secretary General
of RFK Europe and managed the Center’s office in Florence, Italy. Before that,
Bickford was the Director of the Policymakers and Civil Society unit at the
International Center for Transitional Justice (ICTJ), where he was a founding staff
member in 2001. During his time at ICTJ justice, he developed the organization’s
work on memory, as well as in various national contexts including in in Bosnia,
Burma, Cambodia, Liberia, Mexico, Morocco, and Nigeria; and managed global
networks of transitional justice activists and practitioners. He has also been a
consultant for the Oak Foundation, the Bertha Foundation, the United Nations
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 129
Development Program (UNDP-Sarajevo), and the Canadian Truth and
Reconciliation Commission, among others.
Bickford is an adjunct professor and teaches regular graduate seminars on human
rights at Columbia University and New York University. He received a Ph.D.
from McGill University and a master’s degree from the New School, both in
political science.
JO-MARIE BURT
Jo-Marie Burt teaches political science at George Mason
University, where she is also director of Latin American
Studies and co-director of the Center for Global Studies.
She is also a senior fellow at the Washington Office on
Latin America (WOLA), where she conducts research
and writes commentaries on human rights and
transitional justice issues in the region.
Burt’s research focuses on state violence, human rights, and transitional justice;
social movements and revolutions; and state-society relations in Latin America.
She brings to her teaching years of experience working with human rights
organizations in Latin America and the United States, including Peru’s National
Human Rights Coordinator, Peace and Justice Service (SERPAJ)-Uruguay, and
WOLA. As a researcher for the Peruvian Truth and Reconciliation Commission,
Burt prepared a report on the evolution and impact of political violence in the
urban community of Villa El Salvador that was incorporated into the
Commission’s Final Report. She previously worked as editor at NACLA Report
on the Americas. In 2010, Burt was the Alberto Flores Galindo Visiting Professor
at the Pontifical Catholic University of Peru. She has published widely on Latin
American politics and society in academic journals, edited volumes, and in
journalistic magazines and newspapers.
PABLO DE GREIFF
Pablo de Greiff was appointed by the U.N. Human
Rights Council to serve as the first Special Rapporteur
on the promotion of truth, justice, reparation, and
guarantees of non-recurrence in 2012. He was renewed
in 2015 and will hold the position until May 2018. In
January 2015, he was also asked to be part of the United
Nations Independent Investigation on Burundi, a mission
of Independent Experts to address the situation in
Burundi. He is currently senior fellow and director of the
Transitional Justice Program at the Center for Human
Rights and Global Justice of the School of Law at New York University (NYU).
Prior to joining NYU, he was the Director of Research at the International Center
for Transitional Justice (ICTJ) from 2001 to 2014.
Born in Colombia, he graduated from Yale University (B.A.) and from
Northwestern University (Ph.D.). Before joining ICTJ justice, he was an associate
130 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
professor with tenure in the Philosophy Department at the State University of New
York at Buffalo, where he taught ethics and political theory. He was the Laurance
S. Rockefeller fellow at the Center for Human Values, Princeton University, and
held a concurrent fellowship from the National Endowment for the Humanities.
De Greiff is the editor or coeditor of ten books, including The Handbook of
Reparations (Oxford, 2006), Transitional Justice and Development: Making
Connections (SSRC, 2009), and Disarming the Past: Transitional Justice and Ex-
combatants (SSRC, 2010), among others. De Greiff has published extensively on
transitions to democracy, democratic theory, and the relationship between
morality, politics, and law, and is in the board of editors of the International
Journal of Transitional Justice and of several book series related to the topic.
TINE DESTROOPER
Tine Destrooper is a scholar in residence at the Center
for Human Rights and Global Justice at New York
University’s School of Law and a fellow at the
Wissenschaftkolleg, Berlin. Before this, she worked as a
post-doctoral researcher with the Law and Development
Research Group at the University of Antwerp and with
at the Center for Governance and Global Affairs at the
University of Leiden.
She obtained her Ph.D. at the European University Institute, Florence, where she
specialized in the relationship between armed conflict, social movements and
gender in Central America. She holds a Master’s Degree in Conflict, Security, and
Development from University College London and an undergraduate degree from
the University of Leuven. She worked for several government agencies in
Belgium, as well as for the U.N. High Commissioner for Refugees. She has
published work in, among others, Human Rights Quarterly, the Journal of Human
Rights Practice, and Development in Practice. Her current research project
focuses on the role of social movements in implementing transitional justice
mechanisms.
CHRIS DOLAN
Chris Dolan has worked in sub-Saharan Africa since
1992. His work with survivors of conflict-related
violence has involved ex-combatants, refugees, and
internally displaced persons, both women and men, as
well as sexual and gender minorities and refugee sex
workers. His Ph.D. from the London School of
Economics and Political Science, now published as
Social Torture: The Case of Uganda 1986-2006, is one
of the leading texts on the war in northern Uganda.
In his capacity as director of the Refugee Law Project, an outreach project of the
School of Law, Makerere University in Uganda, he has since 2006 led the
organization to occupy a pre-eminent position in debates and practice of
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 131
transitional justice in Uganda and the wider region. This has included establishing
two institutes: the Institute for African Transitional Justice, an annual weeklong
event raising critical issues in the development of context-appropriate transitional
justice, and the South-South Institute on Sexual Violence against Men and Boys
(2013, 2015, 2017). He also conceptualized and directed the background
documentation and editing of Uganda’s first Compendium of Conflicts (2014) as
the basis for any comprehensive planning for transitional justice in Uganda, and
ensured the establishment of the National Memory and Peace Documentation
Centre, Uganda’s first “history clinic” (2010). The Refugee Law Project is
intimately involved in national policy development, as well as in documenting
key transitional justice processes such as the International Criminal Court’s
Dominic Ongwen trial, and the trial of Thomas Kwoyelo by the International
Crimes Division of Uganda’s High Court.
LAUREL FLETCHER
Laurel E. Fletcher is clinical professor of law at Berkeley
Law where she directs the International Human Rights
Law Clinic. Fletcher is active in the areas of human
rights, humanitarian law, international criminal justice,
and transitional justice. As director of the International
Human Rights Law Clinic, she utilizes an
interdisciplinary, problem-based approach to human
rights research, advocacy, and policy.
Fletcher has advocated on behalf of victims before
international courts and tribunals and has issued
numerous human rights reports on topics ranging from sexual violence in armed
conflict to human rights violations of tipped workers in the U.S. restaurant
industry. She also has conducted several empirical human rights studies, including
of the impact of detention on former detainees who were held in U.S. custody in
Afghanistan and Guantanamo Bay, Cuba. She served as co-editor-in-chief of the
International Journal of Transitional Justice (2011-2015).
Her recent publications include “A Wolf in Sheep’s Clothing? Transitional Justice
and the Effacement of State Accountability for International Crimes,” 39
Fordham Intl LJ 447 (2016); “Refracted Justice: The Imagined Victim and the
International Criminal Court,” in Contested Justice: the Politics and Practice of
International Criminal Court Interventions 302 (C.M. De Vos, Sara Kendall, and
Carsten Stahn, eds., Cambridge, 2015); and “Writing Transitional Justice: An
Empirical Evaluation of Transitional Justice Scholarship in Academic Journals,”
7 J Hum Rts Prac 177 (2015) (Harvey M. Weinstein, co-author). In 2009, she and
Eric Stover published The Guantanamo Effect: Exposing the Consequences of US
Detention and Interrogation Practices (UC Press).
132 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
BHAVANI FONSEKA
Bhavani Fonseka is a senior researcher and human rights
lawyer working with the Centre for Policy Alternatives
in Colombo, Sri Lanka. She has worked on issues related
to human rights and the rule of law in Sri Lanka for over
a decade. She has appeared as counsel in several
landmark cases filed in the Sri Lankan Supreme Court
and Court of Appeal and been involved in the civil
society advocacy around the U.N. Human Rights
Council, which resulted in several resolutions on Sri
Lanka.
Presently, her work focuses on transitional justice issues in post-war Sri Lanka,
including issues around truth, justice, reparations, and non-recurrence and
examining policy and legal reforms which has led to several publications. Her
edited volume on transitional justice issues relevant to Sri Lanka will be published
in early 2017. She was an adviser to the Consultation Taskforce appointed by the
Government of Sri Lanka in 2016 and a member in the drafting committee to
formulate the National Human Rights Action Plan for Sri Lanka for the period
2017-2021.
She has a LL.B. (Hons) (Bristol), LL.M. (Denver) and M.P.A. (Harvard). She
was an Asia 21 Fellow and a Mason Fellow at the Kennedy School of
Government, Harvard University. She was a 2015 Eisenhower Fellow.
FARAH HACHED
Farah Hached is a lawyer and the founding president of
Labo’ Démocratique, a Tunisian think tank founded in
2011, which aims to contribute to the establishment and
promotion of democracy. Currently, as president of
Labo’ Démocratique, she supervises the Observatory of
Transitional Justice, launched in December, which will
publish a quarterly report on the transitional justice
process in Tunisia.
During the Tunisian democratic transition, Hached initiated and managed several
projects related to the security sector reform, transitional justice, and
transparency. She was part of a working group created by civil society
organizations to follow the parliamentary discussion on the transitional justice law
project. She launched a documentary film, “Memory at Risk,” which presents the
methods of surveillance of the Tunisian political police during the rule of
President Ben Ali, and she is co-author of a three-volume book, Tunisian
Revolution and Security Challenges (2015). She has conducted several
consultations with members of the Ministry of Interior and Ministry of Justice and
other government agencies, as part of her work. She designed a training needs-
assessment report and an intensive training program about security sector
governance in Tunisia, targeting members of the Parliament, members of the
security sectors and civil society.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 133
Hached obtained a Master’s Degree in Public Law from the University Panthéon-
Assas (Paris) with a specialization in human rights, an executive LL.M. from
Northwestern University (Chicago), and a Certificate of Business Administration
from IE Business School (Madrid).
REFIK HODZIC
Refik Hodzic joined the International Center for
Transitional Justice (ICTJ) as director of
communications in March 2011. At ICTJ, Hodzic
oversees its publications, outreach, and the global online
presence in English, Spanish, and Arabic. In his current
role, Hodzic leads ICTJ’s efforts to catalyze public
debate on transitional justice in key contexts like
Colombia and Tunisia and global discussions on key
issues like the role of media in transitional justice or the international
community’s political commitment to the struggle against impunity. At the same
time, Hodzic continues his active engagement as a transitional justice specialist
in developing and implementing public campaigns advocating for victims’ rights,
such as the “White Armband Day” in Bosnia and Herzegovina, and through
publication of various articles and essays, including the Independent, Al Jazeera
English, El Faro, The National, The Balkanist, and other specialized platforms
focused on international and transitional justice.
Prior to this, for nearly two decades, Hodzic worked in transitional justice as a
journalist, filmmaker, as well as an expert in public information and outreach
campaigns for international and national courts seeking justice for war crimes.
While working with the International Criminal Tribunal for Yugoslavia from
2000–2004 and 2006–2010, he served as the Tribunal’s spokesman and outreach
coordinator for Bosnia and Herzegovina. He also headed the public information
and outreach section of the Court of Bosnia and Herzegovina, where he developed
a comprehensive public information and outreach strategy for the court and the
state prosecutor’s office. In 2004, Hodzic co-founded XY Films, an independent
film and television production company producing documentary films dealing
with the legacy of war crimes committed during the 1990s.
Hodzic served as an honorary witness at the Truth and Reconciliation
Commission of Canada, a role bestowed on persons of highest moral and
professional qualities, tasked with witnessing and promoting the work of the
commission on revealing the truth about abuses committed at Canada’s “Indian
Residential Schools.” In 2016, Hodzic received the Civic Courage Award from
Fontbonne University in St. Louis.
134 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
TAWANDA HONDORA
Tawanda Hondora is an investments director at
Humanity United (HU). In this role, he is responsible for
developing and implementing key thematic and country
investment strategies. Currently, his main focus is
Sudan.
Prior to joining HU, Hondora worked as the head of
strategic litigation at Amnesty International during
which time he led the organization’s global litigation initiatives before diverse
domestic appellate and international courts in matters raising international human
rights law and international humanitarian law issues. Prior to that, Hondora, who
is dual-qualified, worked in private legal practice in the United Kingdom and
Zimbabwe both as a private and public law litigation attorney. Hondora has held
a number of senior management roles: as a partner at the law firm Kantor and
Immerman, deputy director in Amnesty International’s Africa department (with a
focus on conflict countries) and the Law and Policy Department, and as a board
member of various nonprofit organizations.
A holder of a Doctorate Degree in Law and Finance from Warwick University
(UK), which focused on the propagation and effective regulation of asset-
securitization in emerging markets, Hondora has published articles on
international human rights law, public international law, and international
investment law issues.
SALMA KAHALE
Salma Kahale, a Syrian national, is the Executive
Director of Dawlaty, an NGO that works with young
nonviolent activists and youth, building their capacity on
civic education, transitional justice and the nonviolent
movement in Syria.
She has nine years of experience in child protection and
youth engagement with UNICEF, Save the Children, and
Mercy Corps in Syria, as well as regionally.
Kahale holds a Master’s Degree in Gender, Development
and Globalization from the London School of Economics. She is currently based
in Beirut.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 135
RIANNE LETSCHERT
Rianne Letschert has been rector magnificus of
Maastricht University since September 2016. She
studied international law at Tilburg University, the
University of Amsterdam, and the University of
Montpellier. She obtained her Ph.D. from Tilburg
University in 2005, with a thesis entitled “The Impact of
Minority Rights Mechanisms, Exploring the Competing
International Organizations that Formulate Policy and
Legislation on National Minorities.”
In March 2011, Letschert was appointed professor to the newly established chair
in Victimology and International Law at Tilburg University. From April until
August 2010, she was a visiting research fellow at the Lauterpacht Centre for
International Law at the University of Cambridge as well as a research fellow at
Clare College in Cambridge, where she is a lifelong member. In 2014, she also
held a visiting professorship at the University of Barcelona. She has written and
edited various books, and published articles in national and international scholarly
journals.
Letschert received a Vidi grant from the Netherlands Organization for Scientific
Research (NWO) in May 2015 for her research on the impact of international
tribunals on societies and people who are confronted with serious violations of
human rights and international crime. She is an expert consultant on casualty cases
to the Special Tribunal for Lebanon, and she also previously directed the
International Victimology Institute Tilburg (INTERVICT). In 2012, she became
a member of the Young Academy of the Royal Netherlands Academy of Arts and
Sciences (KNAW) and was appointed as its chair in April 2015.
ELIZABETH LIRA
Elizabeth Lira is a Chilean clinical psychologist,
researcher, and family therapist. She is currently the dean
of the Faculty of Psychology (2014-2018) at the
University Alberto Hurtado in Santiago, Chile, where
she previously served as director of the Center for Ethics
(2006-2014).
She has been honored with several prizes for her work
with victims of human rights violations, including the
American Psychological Association International
Humanitarian Award (2002) and has published widely on the impact of political
violence. She was a member of the National Presidential Advisory Commission
for the Qualification of Disappeared Detainees, Political Executed and Victims of
Political Prison and Torture (2010-2011) and the Chilean National Commission
on Political Prison and Torture (2003-2005).
136 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
HELEN MACK
Helen Beatriz Mack Chang is the founder and president
of the Myrna Mack Foundation, an organization
dedicated to challenging the culture of impunity within
the Guatemalan military and seeking justice for
survivors of human rights abuses. A businesswoman by
trade, she was transformed into a leading human rights
and judicial reform activist following the government-
ordered assassination of her sister, Myrna Mack, in 1990.
In 1997, she was named head of the Commission for
Justice Strengthening, a multi-sectorial body that aimed
to improve civilian oversight of Guatemala’s security forces. She helped co-found
the Pro-Justice Movement in 1999, which aimed to promote greater transparency
in electing justice officials. In 2009, she helped form the Guatemala Forum, a
network of over 50 organizations supporting the work of the International
Commission against Impunity in Guatemala (CICIG). In 2011, she served as the
head of the Presidential Commission on Police Reform in Guatemala and
championed reforms to strengthen, modernize, and professionalize the
Guatemalan National Civilian Police (PNC).
Mack has received several significant recognitions of her work, including the
Right Livelihood Award in 1992, considered the alternative Nobel Peace Prize
winner; the Notre Dame Prize for outstanding public service in Latin America in
2005; the King of Spain Prize in Human Rights in 2006; the Order of the Legion
of Honor in Grade of Knight of the Government of France in 2011; the
Washington Office on Latin America (WOLA) Human Rights Award in 2012;
and, in June 2014, she received an Honorary Doctorate in Law from the University
of Guelph in Canada.
ANJA MIHR
Anja Mihr is founder and program director of the
Humboldt-Viadrina Center on Governance through
Human Rights in Berlin, Germany. She has held
professorships for public policy, international relations,
and human rights at the Willy-Brandt School of Public
Policy, Erfurt University, and at the Netherlands Institute
of Human Rights (SIM), University of Utrecht,
Netherlands.
She 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 at Peking University Law School in
China together with the Raoul Wallenberg Research Institute on Human Rights,
Lund University in 2008. From 2006-2008, she was the European program
director for the European Master’s Programme in Human Rights and
Democratization (EMA) at the European Inter-University Center for Human
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 137
Rights (EIUC) in Venice, Italy. She received her Ph.D. in Political Science from
the Free University in Berlin, Germany, in 2001.
Mihr has been teaching governance and human rights with an interdisciplinary
approach since 2002 in various European, U.S., and Chinese institutions, and
developed her own Master’s Program on Governance and Human Rights in 2015.
She has been one of two principal investigators and research directors of the
European ORA Project on the Impact of Transitional Justice Measures on
Democratic Institution-building. Her work focuses on transitional justice, public
policy, governance, and human rights.
She has published a number of books and articles on international human rights
regimes, human rights education, transitional justice, European human rights
system, and NGOs and has served as co-editor of the European Yearbook of
Human Rights as well as the German Journal for Human Rights.
ABDELHAY MOUDDEN
Abdelhay Moudden, a Moroccan national, received his
Ph.D. in Political Science from the University of
Michigan. He has been on the faculty of Mohamed V
University in Rabat since 1978, teaching political
science and international relations. He is the founder and
the academic director of the Center for Cross Cultural
Learning since 1995 and founder in 2005 of Ribat al
Koutoub (www.ribatalkoutoub.ma), an electronic
magazine in Arabic which specializes in book reviews.
Moudden is a former member of the Moroccan Truth and
Reconciliation Commission and of the Consultative Council for Human Rights.
His most recent publications include “Ihbat: Disillusionment and the Arab Spring
in Morocco,” Journal of North African Studies, Fall 2015 (co-authored with Taeib
Belghazi), and in Arabic, “The Painful Past and Justice” (2011), “Dilemmas of
Political Reconciliation” (2013), and “Transitional Justice and Liberalized
Autocracy: The Case of Morocco” (2013).
JEUDY OEUNG
Jeudy Oeung is currently a political officer at the Embassy
of Sweden in Phnom Penh, Cambodia, where he manages
Swedish support in the area of human rights and
democracy in relation to civil society and acts as a focal
point for issues related to the judiciary and political
development in the country. He is also an attorney-at-law.
He serves as a member of the Board of Directors of Kdei
Karuna (KdK), a local NGO (formerly the International
Center for Conciliation), which works to promote social harmony, peace, and
justice through oral history education, social dialogue, and memorialization. He
previously worked for the Cambodian Human Rights Action Committee
138 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
(CHRAC), a coalition of Cambodian NGOs. He has worked for over eight years
in the areas of human rights, the Khmer Rouge tribunal, and legal and judicial
reform.
He holds a Master’s of Art in International Relations from Pannasastra University
of Cambodia (PUC) and a Bachelor of Law from Royal University of Law and
Economics (RULE), Cambodia.
STEPHEN OOLA
Stephen Oola is currently a senior advisor on legal and
constitutional affairs at the Joint Monitoring and
Evaluation Commission (JMEC) overseeing the
implementation of the Agreement on the Resolution of
the Conflict in the Republic of South Sudan. Oola is the
co-founder and director of Amani Institute Uganda, a
peacebuilding think tank based in Gulu, northern
Uganda, and an advocate (attorney) in the High Court of
Uganda.
Until September 2016, he was head of the Conflict, Transitional Justice, and
Governance Program at the Refugee Law Project (RLP), School of Law,
Makerere University in Kampala (2013-2016). He also led the Research and
Advocacy Department at RLP from 2010-2012 and conducted a countrywide
reconciliation and transitional justice audit in Uganda (2011-2012). From 2007-
2009, Oola was the transitional justice lawyer at RLP.
Oola holds a LL.B. (Hons) from Makerere University and a Master’s of Art in
International Peace Studies from the University of Notre Dame, U.S.A. As a pre-
doctoral fellow at the University of Antwerp, Belgium (2012), his interest and
expertise was in transitional justice, peacebuilding, and development in Africa.
Oola led the drafting of the National Reconciliation Bill for Uganda, the African
Union Transitional Justice Policy Framework, and JMEC’s Transitional Justice
Strategy for South Sudan. Oola is a member of the African Commission on
Human and People’s Rights’ Advisory Committee on the Study on Transitional
Justice in Africa.
STEPHAN PARMENTIER
Stephan Parmentier studied law, political science, and
sociology at the universities of Ghent and Leuven
(Belgium) and sociology and conflict resolution at the
Humphrey Institute for Public Affairs, University of
Minnesota-Twin Cities. He currently teaches sociology
of crime, law, and human rights at the Faculty of Law of
the University of Leuven and previously served as the
academic secretary of the Faculty of Law (2002-2005)
and head of the Department of Criminal Law and
Criminology (2005-2009). He is a Board member of the
Centre for Global Governance Studies at the University
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 139
of Leuven and a member of the Leuven Mediation Platform. He is also in charge
of international relations in criminology at Leuven University and, in July 2010,
was elected secretary-general of the International Society for Criminology (re-
elected in August 2014). He serves on the Advisory Board of the Oxford Centre
of Criminology and the International Center for Transitional Justice (New York).
Parmentier has served as a visiting professor (Oñati, San José, Sydney, Tilburg,
Tokyo, Venice), visiting scholar (Oxford, Stellenbosch, Sydney) and guest
lecturer in the fields of human rights, justice and peace, criminology, and socio-
legal studies. He is the founder and co-general editor of the international book
Series on Transitional Justice (Intersentia Publishers, Cambridge/Antwerp), and
editor of the Restorative Justice International Journal (Routledge, Abingdon). He
co-founded and co-directs the Flemish Inter-university Research Network on Law
and Development and co-organizes the summer course on Human Rights for
Development. He also serves as a referee to the European Research Council
funding schemes of the European Union, and several national and international
research foundations.
Over the past quarter century, he has been an advisor and consultant to the
European Committee for the Prevention of Torture, the Belgian Minister of the
Interior, the Belgian Federal Police, the King Baudouin Foundation, and Amnesty
International. His research interests include political crimes and transitional
justice, human rights and migration, and restorative justice and peacebuilding.
Between 1999 and 2002, he served as the vice-president of the Flemish section of
Amnesty International.
FREDY PECCERELLI
Fredy Peccerelli is the executive director of the Forensic
Anthropology Foundation of Guatemala (FAFG). Since
his return to Guatemala in 1995, he has dedicated his life
to upholding human rights and dignity through the
application of forensic sciences. Peccerelli is an
internationally renowned human rights defender and
forensic anthropologist, and founding member of FAFG.
Today, as FAFG’s executive director, Peccerelli leads
the development and implementation of a
Multidisciplinary Human Identification System that applies victim investigation,
forensic-archaeology, anthropology, and genetics to uncover the identity of
victims of mass human rights abuses, and the truth behind their disappearance.
Applied in over 1,800 cases throughout the country, the system supports the
search for and identification of victims from Guatemala’s internal armed conflict
(1960-1996). FAFG is the sole organization that family members trust to search
for their loved ones, and these trusting relationships now reach internationally as
FAFG is sought after in other post-conflict countries. Working within and
supporting Guatemala’s Public Ministry, the ministry uses the evidence
uncovered by the FAFG to hold the perpetrators accountable for their crimes
against humanity committed during the conflict. FAFG is often called upon to
140 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
testify and present expert reports in emblematic cases in the Guatemalan judicial
system. Peccerelli has testified as expert witness in the 2013 genocide case against
Ríos Montt in a Guatemalan national court, as well as before the International
Criminal Court for the former Yugoslavia (ICTY), and the Inter-American Court
of Human Rights.
Peccerelli was the Queen’s University 2015 Chancellor Dunning Trust Lecturer.
He has been presented with the Special Honors Medal from Canadian Governor
General David Johnston; the Abraham Lincoln Brigade Archives (ALBA)/Puffin
Award for Human Rights Activism; the 2008 Heinz R. Pagels Human Rights
Scientists Award; and was the first recipient of the Washington Office on Latin
America (WOLA) Human Rights Award. Time Magazine and CNN named
Peccerelli one of “50 Latin American Leaders for the New Millennium.”
ANTONY PEMBERTON
Antony Pemberton is professor of victimology and
director of INTERVICT, the International Victimology
Institute Tilburg at Tilburg University in the
Netherlands. He is a political scientist and a
criminologist. His research interests concern the broad
topic of Victims and Society, including victims’
perspectives on justice, societal reactions to victims and
processes of victimization, cultural victimology,
narrative victimology and the ethics of victimology. He
has published over 80 articles, book chapters, and books
on the subject of victimology. Most of his current ideas are reflected in his
inaugural address in Tilburg, Victimology with a Hammer: the Challenge of
Victimology (Prismaprint, 2015).
BORISLAV PETRANOV
Borislav Petranov is director of global rights and
accountability for the Open Society Human Rights
Initiative. His portfolio supports the organizations
anchoring the human rights movement and work on
transitional and international justice.
Before joining Open Society, Petranov reviewed
protection systems for human rights defenders as a
consultant to the Ford Foundation. He has also served as the Sigrid Rausing
Trust’s deputy director and program director for civil and political rights, and as
a Moscow-based program officer for human rights and justice at the Ford
Foundation. At INTERIGHTS (the International Centre for the Legal Protection
of Human Rights), he managed the organization’s work in Central and Eastern
Europe, focusing on litigation before the European Court of Human Rights and
various U.N. bodies, as well as on Europe-wide projects related to access to justice
and legal aid, and anti-discrimination.
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 141
Working with colleagues on advisory bodies of the Institute for the Study of
Human Rights at Columbia University and the Center for Reproductive Rights,
Petranov has contributed to research and litigation strategies on reproductive
rights, and on freedom of conscience and belief.
Petranov holds an LL.M. in international human rights law, with distinction, from
the University of Essex. He also served as a junior research fellow at Wolfson
College, Oxford.
JOANNA R. QUINN
Joanna Quinn is director of the Centre for Transitional
Justice and Post-Conflict Reconstruction and associate
professor of political science at the University of
Western Ontario in London, Ontario, Canada. Her
research considers acknowledgement in overcoming the
causes of conflict, or the recognition of past events, and
looks at its potential to affect real and lasting change. She
seeks to understand why bystanders and outsiders do not
care to understand what has taken place in survivor
communities, and ultimately never engage in processes
of acknowledgement and reconciliation in those communities. Her current project
further specifies the acknowledgement hypothesis (Quinn, 2003, 2010),
demonstrating the importance of “thin sympathy” or a basic understanding of the
needs of the other as a necessary condition for action. Quinn’s current work
focuses on bystanders and outsiders, two groups normally excluded from the
victim/perpetrator binary, but which are crucial to the success of social rebuilding.
She has studied reconciliation and acknowledgement, through truth and
reconciliation commissions and traditional justice, in Uganda, Fiji, Solomon
Islands, and Haiti.
SIMON ROBINS
Simon Robins is a practitioner and researcher with an
interest in transitional justice, humanitarian protection,
and human rights. His work is driven by a desire to put
the needs of victims of conflict and rights violations at
the heart of efforts to address their legacies, and
engaging with victim-centred, therapeutic, and
emancipatory approaches to histories of violence. This
has led to much of his work critiquing contemporary,
liberal transitional justice, and seeking approaches to
justice after conflict that prioritize local agency, process over goals, and that
challenge unequal power relationships and structures of exclusion at both local
and global levels: a transformative justice. The issue of persons disappeared and
missing in armed conflict remains a focus of his work, and he published a book
on this theme recently.
He is a senior research fellow at the Centre for Applied Human Rights at the
University of York, and consultant for a range of international agencies. He is
currently working on research projects addressing transitional and transformative
142 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
justice in Tunisia, in Nepal with the Truth and Reconciliation Commission, the
Disappearance Commission and victims’ groups, and on the issue of migrant
bodies, missing to their families, at Europe’s southern borders.
NAOMI ROHT-ARRIAZA
Naomi Roht-Arriaza is distinguished professor of law at
UC Hastings College of Law. She grew up in New York
and Latin America, including stints in Chile, Guatemala,
and Costa Rica. She earned a B.Aa from UC Berkeley, a
M.A. from the UC Berkeley Goldman School of Public
Policy, and a J.D. from the UC Berkeley School of Law.
Roht-Arriaza has worked as an immigration paralegal, an
organizer, and a teacher for a nonprofit focused on
corporate accountability. After graduating from law
school, she clerked for Judge James Browning of the Ninth Circuit Court of
Appeals in San Francisco. During 1991 to 1992, Roht-Arriaza was the first
Riesenfeld Fellow in International Law and Organizations at UC Berkeley School
of Law.
Roht-Arriaza is the author of The Pinochet Effect: Transnational Justice in the
Age of Human Rights (2005) and Impunity and Human Rights in International
Law and Practice (1995), and co-editor of Transitional Justice in the Twenty-
First Century: Beyond Truth versus Justice. She is a co-author on The
International Legal System: Cases and Materials (6th ed.) with Mary Ellen
O’Connell and Dick Scott (Foundation Press 2010). She continues to write on
accountability, both state and corporate, for human rights violations as well as on
other human rights, international criminal law, and global environmental issues.
In 2011, she was a democracy fellow at the U.S. Agency for International
Development, and in 2012, she was a senior fulbright Scholar in Botswana
NELSON CAMILO SÁNCHEZ
Nelson Camilo Sánchez is a research coordinator at the
Center for the Study of Law, Justice, and Society
(Dejusticia) and an associate professor at the
Universidad Nacional de Colombia in Bogota. He holds
a J.D. from the Universidad Nacional de Colombia, an
LL.M. in International Legal Studies from Harvard Law
School, and a J.S.D. from the Universidad Nacional de
Colombia. During 2004-2005, he received the Rómulo
Gallegos scholarship from the Inter-American Commission of Human Rights
(Washington D.C.).
His recent publications include “Corporate Accountability, Reparations, and
Distributive Justice in Post-Conflict Societies” (in Corporate Accountability in
the Context of Transitional Justice, edited by Sabine Michalowski) and “Return
within the Bounds of the Pinheiro Principles: The Colombian Land Restitution
Experience” (Washington University Global Studies Law Review, co-authored
with David Attanasio).
2018] TRANSITIONAL JUSTICE WORKSHOP: TRANSCRIPT 143
ANDREW SONGA
Andrew Songa is a lawyer and human rights advocate
with over six years of experience in the areas of legal
research, policy formulation and analysis, domestic and
international policy advocacy, and civic education. His
work has centered on the thematic areas of indigenous
peoples’ rights, forced migration, land rights and
transitional justice. He is currently the program manager
in the area of transformative justice for the Kenya
Human Rights Commission (KHRC) and sits on the board of the Constitution and
reform Education Consortium (CRECO).
Songa is a member of the Steering Committees of the Kenya Transitional Justice
Network (KTJN) and has previously served in the same capacity for the Protection
Working Group on Internal Displacement (PWGID). He is currently a member of
the Advisory Committee for the Study of Transitional Justice in Africa currently
being undertaken by the African Commission on Human and Peoples’ Rights
(ACHPR) as well as a member of the Reference Group assisting the ACHPR to
draft a General Comment on the Right to Redress for Victims of Torture and Other
Ill Treatment.
HUGO VAN DER MERWE
Hugo van der Merwe is director of research, knowledge,
and learning at the Centre for the Study of Violence and
Reconciliation (CSVR) in South Africa. Since joining
CSVR in 1997, he has developed and managed
numerous research advocacy and intervention projects
relating to transitional justice, reconciliation, and
peacebuilding in South Africa and the African continent.
Van der Merwe is the co-editor-in-chief of the
International Journal of Transitional Justice (Oxford
University Press). His publications include Assessing the Impact of Transitional
Justice (2009), Truth and Reconciliation in South Africa: Did the TRC Deliver?
(2008), and Conflict Resolution Theory and Practice (1993). He received his
doctorate in Conflict Analysis and Resolution from George Mason University
(1999).
144 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 37:1
HARVEY WEINSTEIN
Harvey Weinstein (M.D., M.P.H.) is senior research
fellow at the Human Rights Center of the University of
California, Berkeley and a retired clinical professor in the
School of Public Health. As associate director of the
Human Rights Center from 1998-2005, he directed the
Forced Migration and Health Project and was co-
principaliInvestigator on three other projects:
Communities in Crisis; Justice, Accountability and
Social Reconstruction in Rwanda and Former
Yugoslavia, Intrastate Conflict and Social
Reconstruction”; and Education for Reconciliation in Rwanda: Creating a History
Curriculum After Genocide.
He is the author of Psychiatry and The CIA: Victims of Mind Control (APA Press,
1990) and co-editor of My Neighbor, My Enemy: Justice and Community After
Mass Atrocity (Cambridge University Press, 2004). He was founding co-editor of
the International Journal of Transitional Justice. He has written articles on
empathy, reconciliation, social reconstruction, history and identity, and the limits
of justice. His chapter, “Victims, transitional justice and social reconstruction:
Who is setting the agenda?” appeared in Inge Vanfraechem, Antony Pemberton,
Felix Mukwiza Ndahinda, Justice for Victims: Perspectives on Rights, Transition
and Reconciliation (Routledge, 2014) and his paper (with Laurel Fletcher) titled
“Writing Transitional Justice: An Empirical Evaluation of Transitional Justice
Scholarship in Academic Journals” appeared in the Journal of Human Rights
Practice (2015). His chapter (with Laurel Fletcher), “Transitional Justice and the
‘Plight’ of Victims” is forthcoming in the “Handbook of Research in Transitional
Justice” (Elgar, 2017). He is a past-chair of the Refugee and Immigrant Caucus
of the American Public Health Association and a distinguished fellow of the
American Psychiatric Association.