Transitional and Transformative Justice This book engages the limits of transitional justice and, more specifically, the interface between transitional justice and the related concept of transformative justice Challenging and developing the work of transitional justice scholars and practitioners, the book addresses both the limitations of existing mechanisms in contexts where they are currently applied, as well as the possibilities for using, or adapting, transitional justice mechanisms in contexts typically viewed as outside their usual remit More specifically, chapters address shortcomings with regard to victim participation in transitional justice mechanisms in Cambodia; consider how the transformative justice framework might be mobilised to overcome limitations of standard approaches to transitional justice in addressing structural violence in post-conflict Colombia; and address how the concept of transformative justice could be used to address historical wrongs in post-apartheid South Africa and post-war BosniaHerzegovina Further chapters explore the intersections of identity and culture with transitional and transformative justice, consider the role of elites in transitional and transformative justice, and put forward the case for applying a broader approach to historical truth-telling than is typical in transitional justice Dr Matthew Evans is a teaching fellow in law, politics and sociology at the School of Law, Politics and Sociology, University of Sussex, Brighton, UK, and visiting researcher in political studies at the School of Social Sciences, University of the Witwatersrand, Johannesburg, South Africa Part of the TRANSITIONAL JUSTICE s eries Series editor: Kieran McEvoy, Queen’s University Belfast, UK For information about the series and details of previous and forthcoming titles, see www.routledge.com/Transitional-Justice/book-series/TRANJ Transitional and Transformative Justice Critical and International Perspectives Edited by Matthew Evans First published 2019 by Routledge Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 A GlassHouse book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, Matthew Evans; individual chapters, the contributors The right of Matthew Evans to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988 All rights reserved No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Evans, Matthew, (Political scientist), editor Title: Transitional and transformative justice : critical and international perspectives / edited by Matthew Evans Description: Abingdon, Oxon [UK] ; New York, NY : Routledge, 2019 | Series: Transitional justice | Includes bibliographical references and index Identifiers: LCCN 2018045125 | ISBN 9781138478510 (hbk) Subjects: LCSH: Transitional justice | Restorative justice | Reparation (Criminal justice) | Political crimes and offenses Classification: LCC K5250 T73 2019 | DDC 340/.115 dc23 LC record available at https://lccn.loc.gov/2018045125 ISBN: 978-1-138-47851-0 (hbk) ISBN: 978-1-351-06832-1 (ebk) Typeset in Galliard by Taylor & Francis Books Contents List of contributors Chapter summaries Foreword vii ix xiii PAUL GREADY Transitional justice and beyond: an introduction to critical, international and interdisciplinary debates MATTHEW EVANS Tackling structural violence through the transformative justice framework 11 DÁIRE MCGILL Addressing historical wrongs in post-transition South Africa: what role for transformative justice? 36 MATTHEW EVANS The transformative potential of post-war justice initiatives in Bosnia and Herzegovina 54 DANIELA LAI AND CATERINA BONORA The problem of elites 77 PÁDRAIG MCAULIFFE Culture: the missing link in transitional justice; an imperative for transformative justice 100 CATHY BOLLAERT Selective justice and constructions of victimhood at the Khmer Rouge Tribunal RACHEL KILLEAN 117 vi Contents Distant historical wrongs, truth telling and restorative justice: exploring schools and museums as potential vehicles for repairing historical wrongs 141 DAVID WILKINS Afterwords on aftermaths 161 LARS WALDORF Index 165 Contributors Cathy Bollaert is a PhD graduate from the Transitional Justice Institute at Ulster University She has been involved in grass-roots reconciliation and peacebuilding initiatives located in South Africa, Sri Lanka, England and Northern Ireland Her research focuses on the intersection between identity, culture and transitional justice Caterina Bonora is a lecturer at the Institute for European Studies, University of Bremen She completed a PhD in Political Science at the Bremen International Graduate School of Social Sciences Her research interests span the areas of human rights, civil society and global governance, the politics of gender and the post-Yugoslav space Matthew Evans teaches law, politics and sociology at the University of Sussex and is visiting researcher in political studies at the University of the Witwatersrand Recent articles appear in International Politics and Social and Legal Studies His first book is Transformative Justice: Remedying Human Rights Violations Beyond Transition (Routledge, 2018) Paul Gready is the Director of the Centre for Applied Human Rights at the University of York and is co-editor of the Journal of Human Rights Practice His most recent book is From Transitional to Transformative Justice (co-edited with Simon Robins, 2019) Rachel Killean is a lecturer in law at Queen’s University Belfast Her research focuses on transitional justice, particularly international criminal justice and the role of victims within international criminal courts Recent articles appear in the International Criminal Law Review and the Journal of International Criminal Justice Her first book is Victims, Atrocity and International Criminal Justice: Lessons from Cambodia (Routledge, 2018) Daniela Lai is a lecturer in international relations at London South Bank University Her research focuses on the relationship between transitional justice and socioeconomic justice She has recently published in the Journal of Intervention and Statebuilding and is a convenor of the British International Studies Association’s South East Europe Working Group viii List of contributors Pádraig McAuliffe has been Associate Head and senior lecturer at the University of Liverpool’s School of Law and Social Justice since 2013 His research interests include rule of law, transitional justice and the historical institutionalism of human rights His publications include Transformative Transitional Justice and the Malleability of States (2017) Dáire McGill received his PhD from the Transitional Justice Institute at Ulster University in late 2018 His current research operationalises the transformative justice framework to create an analytical tool capable of identifying the transformative potential of initiatives implemented in transitional societies He has recently published in the State Crime Journal Lars Waldorf is a reader at Dundee Law School He has authored numerous publications on transitional justice, legal empowerment, and Rwanda, including three co-edited books, and is an associate editor at The International Journal of Human Rights and on the editorial board of the Journal of Human Rights Practice David Wilkins is an historian and teacher He undertook his PhD at the Wilberforce Institute for the Study of Slavery and Emancipation, University of Hull and was a postdoctoral research fellow at the Wits School of Arts, University of the Witwatersrand (2014–2016) Recent articles appear in Social and Legal Studies and the South African Historical Journal Chapter summaries Transitional justice and beyond: an introduction to critical, international and interdisciplinary debates – Matthew Evans This chapter introduces and explores the key debates in which the book intervenes Highlighting both the increasing acceptance of the implementation of transitional justice mechanisms following conflict and authoritarian rule, and increasing contestation and criticism of transitional justice in theory and practice, the chapter sets out the themes of the volume Questions around both the limits of common transitional justice mechanisms such as criminal tribunals and truth commissions and the scope for applying lessons from transitional justice to a broader focus are explored In particular, the chapter outlines debates over the space for the lived reality of affected communities and the participation of victims to be reflected in transitional justice mechanisms, the possible application of the emerging transformative justice framework and the interaction of transitional justice with intergenerational injustices The chapter emphasises the need to engage critically and across national contexts in considering how periods of conflict and injustice can be understood and responded to Tackling structural violence through the transformative justice framework – Dáire McGill Structural violence, acting to severely curtail and constrain the life chances of individuals and groups in society, is a major issue for transitional societies yet is often obscured by political, diplomatic and academic focus on more direct, visible and immediate forms of violence This work begins by critically analysing the concept of structural violence, showing its principal components and effects, and its importance during a transitional period Transformative justice is proposed as the appropriate framework through which this central issue can be addressed because of its focus on empowering local communities to challenge prevailing structures of economic, political and social power in society However, while recognising the need for more ambitious agendas in transition, the chapter proposes that looking for synergies among different conceptualisations of transitional justice is a more fruitful and realistic avenue for positive change than a wholesale disavowal of previous scholarship With this in mind, the chapter explores the links and influences of 158 David Wilkins Mamdani, Mahmood (2002) ‘Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC)’ Diacritics 32(3/4): 33–59 McCully, Alan (2010) ‘What Role for History Teaching in the Transitional Justice Process in Deeply Divided Societies?’ In Irene Nakou and Isabel Barca (eds), Contemporary Public Debates Over History Education, 169–184 Charlotte, NC: Information Age Publishing McCully, Alan (2012) ‘History Teaching, Conflict and the Legacy of the Past’ Education, Citizenship and Social Justice 7(2): 145–159 McElya, Micki (2007) Clinging to Mammy: The Faithful Slave in Twentieth-century America Cambridge, MA: Harvard University Press Miller, David (2007) National Responsibility and Global Justice Oxford: Oxford University Press Minnow, Martha (1998) Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence Boston, MA: Beacon Press Mokyr, Joel (1993) ‘Editor’s Introduction’ In Joel Mokyr (ed.), The British Industrial Revolution: An Economic Perspective, 1–131 Oxford: Westview Press Museum of London Docklands (2008) The Making of London, Sugar and Slavery: A Toolkit for Community Participation London: Museum of London Nagy, Rosemary L (2013) ‘The Scope and Bounds of Transitional Justice and the Canadian Truth and Reconciliation Commission’ International Journal of Transitional Justice 7(1): 52–73 Nash, Gary B (2006) ‘For Whom Will the Liberty Bell Toll? From Controversy to Cooperation’ In John Oliver Horton and Lois E Horton (eds), Slavery and Public History: The Tough Stuff of American History, 75–101 New York: The New Press Nash, Gary and Charlotte Crabtree (eds) (1996) National Standards for History: Basic Edition Los Angeles, CA: National Center for History in the Schools National Museum of African American History and Culture (n.d.) ‘National Museum of African American History and Culture’, https://nmaahc.si.edu/about/museum [accessed 17 August 2017] National Parks Service (n.d.) African Burial Ground: National Monument, www.nps gov/afbg/index.htm [accessed 18 October 2012] National Underground Railroad Freedom Center (n.d.) ‘National Underground Railroad Freedom Center’, www.freedomcenter.org/ [accessed 10 August 2017] New York Historical Society (n.d.) ‘Slavery in New York’, www.slaveryinnewyork.org [accessed 17 July 2011] Parker, Jason C (2008) Brother’s Keeper: The United States, Race, and Empire in the British Caribbean, 1937-1962 Oxford: Oxford University Press Parodi, Carlos A (2008) ‘State Apologies Under U.S Hegemony’ In Mark Gibney, Rhoda Howard-Hassmann, Jean-Marc Coicaud and Niklaus Steiner (eds), The Age of Apology: Facing Up to the Past, 171–186 Philadelphia, PA: University of Pennsylvania Press PBS (n.d.) Traces of the Trade, www.pbs.org/pov/tracesofthetrade/ [accessed 16 August 2017] Pitcaithley, Dwight T (2006) ‘“A Cosmic Threat”: The National Park Service and the Causes of the American Civil War’ In John Oliver Horton and Lois E Horton (eds), Slavery and Public History: The Tough Stuff of American History, 169–186 New York: The New Press Posel, Deborah (1999) The TRC Report: What Kind of History? What Kind of Truth? A Preliminary Exploration Paper presented at the workshop ‘The TRC: Commissioning Distant historical wrongs, truth telling, restorative justice 159 the Past’, Wits History Workshop, University of the Witwatersrand, Johannesburg, South Africa, 11–14 June, http://wiredspace.wits.ac.za/bitstream/handle/10539/ 8046/HWS-341.pdf [accessed April 2018] Purkis, Harriet (2013) ‘Making Contact in an Exhibition Zone: Displaying Contemporary Cultural Diversity in Donegal, Ireland, Through an Installation of Visual and Material Portraits’ Museum and Society 11(1): 50–67 Quirk, Joel and Jane Landers (2015) UNESCO Slave Route Project: Resistance, Liberty, Heritage Meeting of the International Scientific Committee (ISC) Cabo Verde, 26–29 October 2015, Final Report Cidade Velha: UNESCO Robinson, Randall (2000) The Debt: What America Owes to Blacks London: Plume Rodney, Walter (1973) How Europe Underdeveloped Africa London: Bogel-L’Ouverture Publications Sierra Leone Truth and Reconciliation Commission (n.d.) ‘Peace Museum’, www.sierra leonetrc.org/index.php/sierra-leone-peace-museum [accessed 17 August 2017] Thelen, David (2003) ‘Learning from the Past: Individual Experience and Re-enactment’ Indiana Magazine of History 99(2): 155–171 Thompson, Janna (2002) Taking Responsibility for the Past: Reparation and Historical Justice Cambridge: Polity Press Tobias, Manuela (2018) ‘Understanding Poland’s “Holocaust law”’ Politifact, March, www politifact.com/truth-o-meter/article/2018/mar/09/understanding-polish-holocaust-law/ [accessed 12 July 2018] Torpey, John (2006) ‘Making Whole What Has Been Smashed’: On Reparations Politics Cambridge, MA: Harvard University Press Torpey, John (2009) ‘An Avalanche of History: The “Collapse of the Future” and the Rise of Reparations Politics’ In Manfred Berg and Bernd Schaffer (eds), Historical Justice in International Perspective, 21–38 Cambridge: Cambridge University Press Traces of the Trade (n.d.) Traces of the Trade, www.tracesofthetrade.org/ [accessed 16 August 2017] Truth and Justice Commission (2011) Report of the Truth and Justice Commission: Volume One Pointe aux Sables: Government Printing Tyler-McGraw, Marie (2006) ‘Southern Comfort Levels: Race, Heritage Tourism, and the Civil War in Richmond’ In John Oliver Horton and Lois E Horton (eds), Slavery and Public History: The Tough Stuff of American History, 151–167 New York: The New Press UCL Department of History (2018) Legacies of British Slave-ownership, www.ucl.ac.uk/ lbs/ [accessed April 2018] UN (n.d.) Remember Slavery, www.un.org/en/events/slaveryremembranceday/memorial shtml [accessed 11 August 2017] UN (2001) World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance: Declaration, www.un.org/WCAR/durban.pdf [accessed 17 August 2017] UNESCO (n.d.) Learning to Live Together: General and Regional Histories, www.unesco org/new/en/social-and-human-sciences/themes/general-and-regional-histories/ [accessed 11 August 2017] UNESCO (1994) First Session of the International Scientific Committee for the ‘Slave Route’ project Ouidah: UNESCO UNESCO (2000) Report on the 2nd Caribbean Workshop on the UNESCO/WTO Cultural Tourism Programme of the Slave Route Project Paris: UNESCO UNESCO (2010) Slave Routes: A Global Vision DVD Paris: UNESCO 160 David Wilkins UNESCO ASPnet (2004) ‘Breaking the Silence’: The Transatlantic Slave Trade (TST) Education Project, All Equal in Diversity: International Campaign Mobilising Schools Against Racism, Discrimination and Exclusion Paris: UNESCO UNESCO ASPnet (2011) Teaching the Transatlantic Slave Trade: Achievements, Challenges and Perspectives, Final Report of the Interregional Online Consultation of the UNESCO Associated Schools (ASPnet), 30 November to 16 December 2010 Paris: UNESCO Van Ness, Daniel W and Karen Heetberks Strong (2006) Restoring Justice: An Introduction to Restorative Justice Cincinnati, OH: LexisNexis Verbeeck, Georgi (2007) ‘Structure of memory: Apartheid in the museum’ In Hans Erik Stolten (ed.), History Making and Present Day Politics: The Meaning of Collective Memory in South Africa, 217–226 Stockholm: Elanders Gotab AB Voyages: The Trans-Atlantic Slave Trade Database (2008) www.slavevoyages.org/tast/ index.faces [accessed 17 August 2017] Waldorf, Lars (2012) ‘Anticipating the Past: Transitional Justice and Socio-economic Wrongs’ Social and Legal Studies 21(2): 171–186 Walker, Margaret Urban (2006) Moral Repair: Reconstructing Moral Relations after Wrongdoing Cambridge: Cambridge University Press Weaver, Matthew (2015) ‘British slavery reparations Q&A’ The Guardian, 30 September, www.theguardian.com/world/2015/sep/30/british-slavery-reparations-qa [accessed April 2018] Wilkinson, Bert (2017) ‘Europe replies to demand for reparations’ Amsterdam News, 20 July, http://amsterdamnews.com/news/2017/jul/20/europe-replies-demand-repara tions/ [accessed April 2018] Williams, Eric (1944) Capitalism and Antislavery Chapel Hill, NC: University of North Carolina Press Wilson, Ross (2010) ‘Rethinking 1807: museums, knowledge and expertise’ Museum and Society 8(3): 165–179 Wright, Robin (2017) ‘Is America Headed for a New Kind of Civil War?’ The New Yorker, 14 August, www.newyorker.com/news/news-desk/is-america-headed-for-a -new-kind-of-civil-war [accessed 16 August 2017] Afterwords on aftermaths Lars Waldorf Introduction Transitional justice is beginning to look less like a field and more like kudzu It has spread from authoritarian transitions to conflict transitions to non-transitions to post-transitions It has encroached into adjacent fields: development, humanitarianism, and peacebuilding It has grown in ambition, from combating impunity to transforming society This expansionism is fuelled not by success but rather by disappointment with earlier experiments in transitional justice There are two principal groups promoting expansion One, rallying under the banner of ‘transformative justice’, argues that transitional justice should challenge structural violence (including gender inequalities) through bottom-up, participatory, and victim-centric processes (for example Gready and Robins, 2014).1 The other group, which includes former UN Special Rapporteur Pablo de Greiff, uses ‘guarantees of non-recurrence’ to ‘help navigate between the insufficiency of current [transitional justice] measures and the risks of overexpansion and continued overpromising that accompany a “transformative” agenda’ (Roht-Arriaza, 2016: 4) Both groups are influencing debates over policy and practice, including those over transformative reparations in Colombia and guarantees of non-recurrence in Sri Lanka I have serious reservations about both these efforts to expand transitional justice Elsewhere, I have called for ‘good enough’ transitional justice (Waldorf, forthcoming), and for linking transitional justice to sustainable development through legal empowerment (Waldorf, 2019) At a time when populist authoritarianism threatens the modest but real achievements of the liberal-legalist human rights framework (Alston, 2017; see also Vinjamuri, 2017), what’s needed is less hubristic overreaching and more principled pragmatism.2 Evans (Chapter 3, this volume) makes the more persuasive argument that transformative justice should be conceptualised and implemented separately from transitional justice But that remains very much a minority position among those espousing transformative justice I have borrowed the term ‘principled pragmatism’ from a conversation with Pablo de Greiff 162 Lars Waldorf Transformative justice: a litany of doubts While this volume makes a useful contribution to the debates over transitional and transformative justice, it does not allay my concerns about transformative justice If anything, it helpfully highlights some of the ongoing problems with both the concept and its application First, several of the chapters spend more time critiquing transitional justice or international criminal justice than they making a positive case for transformative justice As a result, transformative justice remains vaguely defined and weakly conceptualized Indeed, McGill admits that ‘[t]he meaning of transformative justice is still rather nebulous, with no commonly agreed definition or components’ Similarly, Evans recognises that ‘transformative justice’ risks becoming an empty signifier, rather like ‘reconciliation’ While such acknowledgment is welcome, it remains unclear exactly what transformative justice is seeking to transform: political structures, social relations, economic relations, or individuals? If the first two, then transformative justice needs to engage with the literature on how to change formal – and especially informal – institutions (see Waldorf, 2017; Chappell, 2014) If the latter two, then transformative justice might usefully look to the capability approach (for example Nussbaum, 2011) Second, advocates of transformative justice tend to privilege process over outcomes (for example Gready and Robins, 2014) Their assumption is that participatory processes will either be transformative in themselves (Evans, Chapter 3, this volume) or produce transformative outcomes There are several problems with this assumption For one thing, as Lai and Bonora’s chapter on the former Yugoslavia reminds us, participatory victims’ processes may actually promote ethnic exclusion For another, it’s difficult to see how localised, participatory processes (when progressive) can lead to structural transformation on a wider level Finally, it’s also harder to have faith in scaled-up participatory processes after Colombia’s 2016 referendum on the peace agreement, as well as recent evidence of how social media and disinformation have combined to undermine deliberative democracy Third, transformative justice advocates largely ignore ‘scope conditions’: that is, what are the political, economic, and social factors that make transformative justice endeavours and outcomes more likely (Vinjamuri and Snyder, 2015)? In his chapter, McAuliffe rightly observes that transformative justice overlooks the political economy of transition and transformation By contrast, transitional justice scholars and policymakers have (belatedly) begun to look at how to encourage more inclusive political settlements or elite bargains (Bell and Pospisil, 2017) Finally, transformative justice advocates have a tough time pointing to any realworld examples of how it has been, or can be, applied Evans (Chapter 3, this volume) forthrightly states that transformative justice is more useful as an analytical lens than as an explicit way of shaping policy and practice McGill (Chapter 2, this volume) seems to concur: he applies his model of transformative justice to two rural policy initiatives in Colombia, the Peasant Reserve Zones and the Land Restitution Program His observations are equivocal: while the Peasant Reserve Zones were more transformative in terms of diagnosis and process, he admits that Afterword 163 the Land Restitution Program ‘may prove to have more transformative effects … primarily because it is the best-resourced mechanism in the country and was symbolically important for the Santos administration’.3 Similarly, Lai and Bonora argue that the 2014 economic protest movement in Bosnia had more ‘transformative potential’ (emphasis added) than the Regional Commission (RECOM), but acknowledge that, ‘in the long run, the more institutionalised RECOM initiative might have a more prominent legacy’ Indeed, they admit that the 2014 protests did not lead to changes in Bosnia’s economic structures or policies, and did not lead to more lasting social mobilisation These examples from Colombia and Bosnia only serve to reinforce McAuliffe’s critique of transformative justice: ‘a discourse premised around the twin poles of rejecting liberal-legalist models and celebrating the emancipatory potential of localised justice projects cannot identify the political levers or economic tools that might catalyse the desired broader agenda for change’ Conclusion I have been writing this piece in an ill-conceived hotel in Vavuniya that feels like it was built for a post-war boom which never arrived For many years, this was a border town: the Sri Lankan government’s last stronghold on the A9 highway before one reached the Tamil Tigers’ shadow state Vavuniya still bears the imprint of war with large military garrisons flanking the town and families of the disappeared holding an 18-month protest vigil outside the main Hindu temple (Fernando, 2018) When I made a ‘solidarity visit’ last year with a group studying transitional justice and reconciliation, one of the women broke ranks and angrily questioned in a shout whether our presence would make any difference while her colleagues tried to quieten her For me, that outburst underscored how the government’s unfulfilled promises of transitional justice had created further suffering More than a year on, there is now an Office of Missing Persons but the families still don’t know what happened to their loved ones and so are maintaining their vigil Given the limited prospects for meaningful transitional justice in the current political context (see Fonseka, 2017; International Crisis Group, 2017), it’s hard to see what transformative justice has to offer – other than more raised expectations and bitter frustrations References Alston, Philip (2017) ‘The Populist Challenge to Human Rights’ Journal of Human Rights Practice 9(1): 1–15 Bell, Christine and Jan Pospisil (2017) ‘Navigating Inclusion in Transitions from Conflict: The Formalised Political Unsettlement’ Journal of International Development 29(5): 576–593 McGill points to the need for further empirical work to determine which program actually reduces structural violence 164 Lars Waldorf Chappell, Louise (2014) ‘“New,” “Old,” and “Nested” Institutions and Gender Justice Outcomes: A View from the International Criminal Court’ Politics and Gender 10(4): 572–594 Fernando, Ruki (2018) ‘366 Days – Roadside Protests in Kilinochchi’ Groundviews, 22 February, https://groundviews.org/2018/02/22/366-days-roadside-protests-in-kili nochchi/ [accessed 15 August 2018] Fonseka, Bhavani (ed.) (2017) Transitional Justice in Sri Lanka: Moving beyond Promises Colombo: Centre for Policy Alternatives Gready, Paul and Simon Robins (2014) ‘From Transitional to Transformative Justice: A New Agenda for Practice’ International Journal of Transitional Justice 8(3): 339–361 International Crisis Group (2017) Sri Lanka’s Transition to Nowhere Brussels: International Crisis Group Nussbaum, Martha (2011) Creating Capabilities: The Human Development Approach Cambridge, MA: Harvard University Press Roht-Arriaza, Naomi (2016) Measures of Non-repetition in Transitional Justice: The Missing Link? Research Paper No 160, University of California Hastings College of the Law Legal Studies Research Paper Series San Francisco, CA: UC Hastings Vinjamuri, Leslie (2017) ‘Human Rights Backlash’ In Stephen Hopgood, Jack Snyder, and Leslie Vinjamuri (eds), Human Rights Futures, 114–134 Cambridge: Cambridge University Press Vinjamuri, Leslie and Jack Snyder (2015) ‘Law and Politics in Transitional Justice’ Annual Review of Political Science 18: 303–327 Waldorf, Lars (2017) ‘Institutional Gardening in Unsettled Times: Transitional Justice and Institutional Contexts’ In Roger Duthie and Paul Seils (eds), Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies, 40–83 New York: International Center for Transitional Justice Waldorf, Lars (2019) ‘Between transition and transformation: legal empowerment as collective reparation’ In Paul Gready and Simon Robins (eds), From Transitional to Transformative Justice New York: Cambridge University Press Waldorf, Lars (forthcoming) ‘“Good Enough” Transitional Justice’ Unpublished manuscript Index Abahlali baseMjondolo 42 abolitionism 143–144 Abolition of Slavery in the British Empire Act 1833 150 accountability 56, 85, 105, 108, 121, 125 ACR see Agency for Integration activism activist networks 70 ad hoc tribunals 117 advocacy 7, 48 Afghanistan 85 African American colleges 144 African Americans; exclusion of 143–144; reparations for 141 African Burial Ground 150 African identity 109–110 African National Congress (ANC) 38, 90 African Renaissance 109 African Union 110 Agency for Integration (ACR) 20 al-Bashir, Omar 110 amnesty 15, 85, 121 ANC see African National Congress ancestors 104–105 anti-poverty strategies 92 ANZORC see National Association of Peasant Reserve Zones apartheid: beneficiaries 82; and interconnected worldview 109; psychological liberation from 109; and socioeconomic inequalities 13, 37–41, 43; and theories of racism 102; and TRC 146–147 Apartheid Museum 148 Arab uprisings 70 Arbour, Louise 21 archaeological projects 150 Arc of Return memorial 152 armed conflict 25–27, 29, 88 atrocity: international responses to 118; mass 56, 122; needs of victims 132; selective response to 122, 132 ‘auction of loyalties’ 91 Austrian Initiative 70, 72 authoritarian regimes 13, 16 authority 103 autocratic regimes 15 Belgrade 61 beneficiaries 81–82, 107 benevolent forces 104 Berg, Manfred 144–145, 149 Biko, Steve 109 Black Consciousness Movement 109 Bosnia and Herzegovina (BiH) 3, 7; bottom-up justice initiatives 59–70; post-war justice initiatives 54–72; protests 55, 58, 59, 67–70 Boswell, Rosabelle 147 bottom-up justice initiatives 59–70 boycott 89 Breaking the Silence 153 British industrialisation 150 Browne, Katrina 151 burden of proof 19 Burundi 85 bystander complicity 81 Cambodia 4, 6, 119–132 Canada 147 Cape Town 39, 42 capital accumulation 88 capitalism 103 Caribbean Community (CARICOM) 141, 142 CARICOM see Caribbean Community Central African Republic 88 Chad 88 166 Index Charlie Hebdo 101 citizenship: and public participation in restoration programmes 19; redefinition of 18; Socratic 142, 146, 148 civic mobilisation 70, 71 civic nationalism 104 civic trust 15 civil party system 120, 127–129 civil rights 13, 144 civil society: actions targeting 20; ‘building’ 69; critique of 54; definition 41, 54–55; and peacebuilding process 54; RECOM initiative 61–62; role of 19, 41; as a ‘terrain of struggle’ 55; and transformative justice 39, 43, 48; transformative potential 70 civil wars 14 clientage 82, 83 clientelism 87–89, 91, 93 Cold War 121 collective identity 105–106 collective innocence 81 Colombia 2, 3, 162; armed conflict in 25; economic reintegration 20; land grabbing 15; land ownership 11, 25; land restitution 5, 19, 24–28, 80; reparation programme 18–19; socioeconomic inequalities 13–14; structural violence 11, 21 colonialism 100, 106, 110, 143, 145 Coloured Labour Preference Area 39 communal interests 106 community 108; relationships 22; sense of 103 Comprehensive Agricultural Development Policy 26 confession 109 conflict: and culture 101–102; in post-colonial environments 88; and socioeconomic inequalities 14 constitutions 79 Conyers, John 145 corruption 15, 16, 82 criminal courts 109, 118 criminal justice system 15 criminal law 4, 126; selectivity in 120; see also international criminal law (ICL) criminal responsibility 57, 63 cultural differences 100 cultural identity 13 cultural inequalities 110 ‘Cultural Marxism’ 151 Cultural Tourism – Tourism of Memory 153 culture 100–110; and conflict 101–102; definition 101; distinguished from identity 101; and worldview 102 customary law 110 DDR see Demobilisation, Disarmament and Reintegration decolonisation 109 Demobilisation, Disarmament and Reintegration (DDR) 20 Democratic Republic of Congo (DRC) 85, 88 democratisation 57, 69, 71, 79, 86 Department for International Development (DFID) 79 deterrence: and judicial proceedings 15; and prosecutions 16; and transformative justice 22 development 4–5 DFID see Department for International Development discrimination 44, 57, 65, 127 disempowerment 48 displaced people 25–28 DITA 70 Documenta 61 Douglass, Frederick 144 DRC see Democratic Republic of Congo du Bois, W.E.B 144 Durban Conference 145; see also UN Conference Against Racism and Xenophobia Eastern Europe 85, 86 East Timor 17, 85, 89 ECCC see Extraordinary Chambers in the Courts of Cambodia economic and social rights (ESR) 45–47; see also economic, social and cultural rights (ESCR) economic colonisation 13 economic crimes 15 economic exploitation 13 economic inequality 44, 143 economic power 13, 68, 83 economic reintegration 20 economic, social and cultural rights (ESCR): judicial enforcement 16; violations of 15, 17–18; see also economic and social rights (ESR) education: inequity 13; access to 44, 46 ‘elite recycling’ 88 elites 3; and anti-poverty strategies 92; bureaucratic 90; definition 84–85; Index 167 developmental and redistributive functions of 90–93; domestic 78–81, 85–89; fragmented 91; identification 83–87; and impunity 85, 90; and inequality 82–83; informal 89; land-holding 90; in Latin America 13; and peacebuilding 79, 89; and post-conflict accountability 85; and reparations 85; resistance to transformation 87–90; and social movements 80, 83; and transitional justice 77–94; types of 90–91; see also ‘elite recycling’ El Salvador 90 employment 68, 90 English National Curriculum 151 Enlightenment, the 103–104 ESCR see economic, social and cultural rights ESR see economic and social rights ethnic cleansing 68 ethnic discrimination 68 ethnicity 55, 69 ethnic nationalism 104 ethnic stereotypes 63 European Union (EU) 56 exploitation 13; economic 13; systemic 19 Extraordinary Chambers in the Courts of Cambodia (ECCC) 119, 127; see also Khmer Rouge Tribunal (KRT) Fanon, Frantz 109 FARC see Fuerzas Armadas Revolucionaries de Colombia – Ejército del Pueblo female-headed households 19 feminism 65–66, 125 forgiveness 108 Foundation for German Polish Reconciliation 149 France 143 Fraser, Nancy 55 freedom 104 French Caribbean 143 Fuerzas Armadas Revolucionaries de Colombia – Ejército del Pueblo (FARC) 11, 20, 26 Galtung, Johan 12 Gather at the Table 152 gender 44, 57 Germany 149 Ghana 85 ghettoisation 38, 39 GNR see guarantees of non-recurrence ‘grasping’ 87 grave harms 117, 121, 131 Greiff, Pablo de 161 guarantees of non-recurrence (GNR) 14, 20–21, 161 Guatemala 17 guilt: individualised 15, 81; ‘through apathy’ 81 harm 63; grave 117, 121, 131; visibility of 123–127 Havana Peace Dialogues 11, 26 health inequity 13 High Commissioner for Peace 26 historical thinking 148 holistic strategies 21 Holocaust 141 housing: deficit 38, 39; on well-located land 38; quality 38; right to 16, 39; in South Africa 16, 38, 41–42, 47; subsidy schemes 38, 39 Housing Assembly 41–43 human dignity 100 Humanitarian Law Centre 61 human rights: and civil society 41; culture of 147; different perspectives on 46; interpretations of 107; mass abuses 55; organisations 61; see also human rights violations human rights violations: bystander complicity 81; cultural perspective 110; punishment 15; prosecutions based on 15; and structural violence 14; and TRC 147; see also human rights Hun Sen 124 hybrid justice models 16 hybrid states 78 ICC see International Criminal Court ICL see international criminal law ICTY see International Criminal Tribunal or the former Yugoslavia (ICTY) ‘ideal society’ 103 identification, forms of 69–70 identity 101–102; African 109–110; collective 105–106; definition 101; hybrid 103; national 104, 107; repair of 146 IENG Sary 119 IENG Thirith 119 imprecision 48 impunity 15, 23, 56, 123; of elites 85, 90 inclusiveness 63 individualism 103, 104, 105 168 Index individualised guilt 81 inequality 82–83; economic 44, 143; power 78, 83; socioeconomic 143 institutional reform 14, 20–21 intergroup boundaries 101 International Criminal Court (ICC) 85, 109–110, 117 international criminal law (ICL) 117–119, 121–123, 125, 128–129, 131–132; mechanisms 117 International Criminal Tribunal for the former Yugoslavia (ICTY) 56 international donors 58 International Journal of Transitional Justice 2, 40 international justice movement 56–57 International Labour Research and Information Group 42 International Military Tribunal in Nuremberg 56 international organisations 57, 58 International Scientific Committee 153 land reform 25, 38, 43, 90 land restitution: Colombia 5, 19, 24–28, 80; South Africa 25 Land Restitution Programme (LRP) 27–28 land rights 11, 24 Latin America: democratisation process 57; elites 85, 86; indigenous populations 13; prosecutions for corruption 15; truth commissions 146 Law 1448 of 2011 (the ‘Victims’ Law’) 26–27, 29 Legacies of British Slavery Project 150 legal institutions 57 legal positivism 46 legitimacy 103 liberal democracy 57 liberal transition model 55, 69, 70, 71 Liberty Bell Museum 151 living conditions 21 local ownership 62, 69, 72 Los Angeles 151 LRP see Land Restitution Programme James, C.L.R 144 judicial proceedings 15 judicial reparations 16 judicial selectivity 127–129 justice 63; approaches to 109; hybrid 16; perception of 117; process 14–16; redistributive 21; reparative 22; socioeconomic 57; victim-oriented 117; victim’s right to 117; victor’s 120; vigilante 15; see also justice process; restorative justice; retributive justice; selective justice; social justice; transformative justice; transitional justice malevolent forces 104 Mamdani, Mahmood 81–82 marginalisation 11, 13, 19, 54, 80, 131; see also marginalised communities marginalised communities: and land restitution 25; social rights for 16; and structural violence 16; see also marginalisation Marikana shootings 105 masculinisation 82 mass atrocities 56 Mauritius 147 Maya, the 17 Mbeki, Thabo 109 middle-class 16 Miller, David 141 ‘misframing’ 59 moral conduct 106 museums 8, 142, 147–149, 151–152 KAING Guek Eav 119 Kenya 85 Keraterm 68 KHIEU Samphan 119 Khmer Rouge regime 6, 119, 121–124 Khmer Rouge Tribunal (KRT) 119–132; see also Extraordinary Chambers in the Courts of Cambodia (ECCC) KRT see Khmer Rouge Tribunal Kumar, Corinne 64 land distribution 11 ‘land equalisation’ 19 land-grabbing 15, 85 land inequalities 26 landlessness 27, 28, 43 land ownership 11, 13, 25 National Association of Peasant Reserve Zones (ANZORC) 27–29 national change 77 national identity 104, 107 nationalism 103–104 nation-building 87, 106, 107, 110 neopatrimonialism 87, 93; see also patrimonialism Nepal 13, 85; elites in 90 Nepalese peace agreement 17, 20 New York 150 Index 169 NGOs see nongovernmental organisations Nolan, Aoife 45–47 nongovernmental organisations (NGOs) 41, 42, 61, 62, 70, 78, 79, 127, 131 non-recurrence 15; see also guarantees of non-recurrence (GNR) normative values 15 Northern Ireland 101, 148; policing reform 20 NUON Chea 119 Occupy movement 70 Omarska 68 Outreach Program 56 Papic´, Žarana 64 patrimonialism 83, 88; see also neopatrimonialism patronage 87, 89 peacebuilding 6, 7; and domestic elites 79, 89 Peasant Reserve Zones (ZRC) 5, 26–28 personal responsibility 105 Peru 17 Philadelphia 151 physical world 104 plenum assemblies 69 Poland 149 policing reform 20 ‘political-criminal nexus’ 89 political deliberation 58–59 political exclusion 13 political participation 13, 69, 70 political rights 1, 13, 21, 29, 40, 47 ‘politics of survival’ 87 Poor People’s Alliance 41–43 ‘pork’ 87, 91, 93 post-conflict constitutions 79 post-conflict societies 2, 59, 72, 90 ‘post-transition’ 37 poverty 13, 26, 39, 79, 105, 109; and elites 92–93; psychological 44 power inequality 78, 83 power-sharing 88 Prijedor 68 print technology 103 prison camps 68 privatisation 65, 67–70 profiteering 68 property restitution 11 prosecutions: based on corruption 15, 16; and deterrence 16; and non-recurrence 16; political constraints on 16; and reconciliation 15 prosecutorial selectivity 123–127 public participation: empowering nature of 24, 28, 43; in reparation programmes 19 punishment: as a ‘duty of society’ 15; and interconnected worldview 109 pyramid of victimhood 118–121, 123, 132 race 44 racism 100, 102, 143, 147, 152 Rainbow Nation 107 rational-legal authority 103 ‘reaching’ 87 RECOM see Regional Commission reconciliation 22, 23, 45, 106–107, 145–146; applied to nations 107; through ‘burying the past’ 121; and forgiveness 108; and prosecutions 15; religious aspects of 109 redistributive justice 21 re-enactment 146–147 Regional Commission (RECOM) 54, 55, 58, 61–64, 71, 163 relational repair 145–149 relationships: community 22; and interconnected worldview 106, 108; repair of 146 reparation programmes: Colombia 18–19; public participation in 19 reparations 18–19, 117; and elites 85; for Holocaust 141; individual 19; role of 18–19; for slavery 141–145 reparative justice 22 Research and Documentation Center 61 responsibility: criminal 57, 63; individualisation of 108; personal 105 restorative justice 17, 21, 22–23, 145; community-based 23; and transformative justice 23 retributive justice 21, 57; and interconnected worldview 109 revenge 109 RGC see Royal Government of Cambodia Rhode Island 152 ‘Rhodes Must Fall’ campaign 109 rituals 105 Rodney, Walter 144 Romanticism 103–104 Rome Statute 128 Royal Government of Cambodia (RGC) 119, 122, 123, 132 rule of law 15, 94, 103, 107, 108 rural development 19, 27 rural displacement 15 Rwanda 13 170 Index sacred values 101–102 Sarajevo 61, 64, 66 Schmid, Evelyne 45–47 schools 8, 141, 148–149, 151 ‘scope conditions’ 162 SDI see Shack/Slum Dwellers International Second World War 149 secular society 103 security sector reform 20 Seixas, Peter 148 selective justice 117–132; and construction of victimhood 120–121 self-determination 104 self-exclusion 89 sexual and gender-based violence (SGBV) 125–127, 132; see also sexual violence sexuality 44 sexual violence 6, 67; see also sexual and gender-based violence (SGBV) 125–127, 132 SGBV see sexual and gender-based violence Shack/Slum Dwellers International (SDI) 41–42 Sierra Leone 15, 148 Sierra Leone Special Court 15 Slave Route Project 152–153 slavery 141–142; reparations for 141–145; see also transatlantic slavery slave trade 141 social activism 70 social capital 77 social change 24, 37, 57 social control 88 social equality 63 social exclusion 68 social justice 13, 23, 37, 68; and transformative justice 45 social marginalisation 13 ‘social memory making’ 146 social movements 80, 83 social values 103 societal divisions socioeconomic inequalities 143; and apartheid 13, 37–41, 43; and conflicts 14; see also socioeconomic injustice socioeconomic injustice 49, 81, 153; see also socioeconomic inequalities socioeconomic justice 57 socioeconomic rights 43, 44; and activism 70; definition 46; structurally experienced 47; and transitional justice 40, 45–47 Socratic citizenship 142, 146, 148 ‘sordid paradox’ 123 South Africa: advocacy 7, 48; degradation of values 106; elites 89, 90; housing 16, 38–39, 41–42, 47 ; land reform 38; land restitution 25; ‘post-transition’ 37; rituals 105; social and cultural dominance of whites 13; structural violence 13, 40; transformative justice 36–49; Truth and Reconciliation Commission (TRC) 2, 3, 8, 38, 100, 106–110, 142, 145–147; worldviews 102–106 South African Municipal Workers’ Union 42 South America 16 Southern Europe 57 ‘spiritual insecurity’ 104 spiritual world 104 state-building 79, 84 state norms 21 State Restructuring Recommendation Commission 20 stereotypes 63, 101 storytelling 149 structural violence 2, 5, 12–14; and armed conflict 26, 27; in Colombia 11, 21; and direct violence 17; and human rights violations 14; and transformative justice 21–24, 40; and transitional justice 14–19 subject-action-object relation 12 testifying 17 Thelen, David 142, 146–147 Thompson, Janna 141 Torpey, John 142 Traces of the Trade 152 Traces of Trade: A Story from the Deep North 151–152 trade unions 80 trafficking 68 transatlantic slavery 141–142; attitudinal and relational repair 143–145; and truth telling 149–154; see also slavery transformation: definition 44; differentiated from transition 21–22; position within traditional justice 21; resistance of elites to 87–90 transformative justice: aims of 22; analytical roles 37–42; definitions 23–24, 36–37; policy and practice 42–44; principles 23; and restorative justice 23; rethinking of 55; risks and difficulties 45–48; and social justice 45; in South Africa 36–49; and structural violence 21–24, 40; Index 171 three-dimensional model 24; and transitional justice 1, 3, 7, 22, 45, 162 transition 21–22 transitional justice: bottom-up theories 77–78; critique of 1, 55, 58; and culture 100–110; definition 46; and development 4–5; elite-oriented 43; expansion 161; ‘good enough’ 161; legalistic approaches to 15; limitations 2–6; mechanisms 14, 37, 40; possibilities within 4–6; programmes 6; responses beyond the borders of 6–8; and ocioeconomic rights 40, 45–47; and structural violence 14–19; top-down theories 77–79; and transformative justice 1, 3, 7, 22, 45, 162; transformative ‘turn’ in 77 transparency 61 TRC see Truth and Reconciliation Commission truth 16–18; conceptions of 8; forms of 145–146; see also truth commissions; truth telling Truth and Justice Commission 147 Truth and Reconciliation Commission (TRC): Canada 147; Sierra Leone 148; South Africa 2, 3, 8, 38, 100, 106–110, 142, 145–147 truth commissions 16–17, 61–62, 85, 146–148; and African approaches to justice 109; definition 16; and ESCR violations 17–18 Truth, Justice and Reconciliation Commission 85 truth telling 66, 142–143, 145–149; and transatlantic slavery 149–154 Turner, Harry 104 Tuzla 67, 68, 70 ubuntu 105–106, 108 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 18 UNESCO 152–153 UN High Commissioner for Human Rights 21 United Kingdom 79 United Nations (UN) 119, 152; Conference Against Racism and Xenophobia 141; Special Rapporteur 14, 161 United States 121–122, 143–144, 150–152 universalism 100 universal rights 100 universal values 100 universities 44 University College London (UCL) 150 UN World Tourism Organization 153 upper-class 16 US Institute for Peace (USIP) 61 USIP see US Institute for Peace vagueness 45 victimhood 56, 63; construction of 120–121; ‘pyramid’ of 118–121, 123, 132; recognition of 129–132; see also victimisation; victims victimisation 118–120, 122–124, 126–127, 130, 132 victim-oriented justice 117 victims: associations 61, 62; compensation for 16; and forgiveness 108; ‘hierarchies’ of 118; labels for 118; participation in proceedings 3, 4, 6, 117, 120, 128; perception of justice 117; political 117; recognition of 119, 121–123, 127–128; reparations for 18–19, 117; restoring agency to 17; rights of 107, 117; role within the courtroom 117; visibility 118, 124, 127–128, 132; see also victimhood; victimisation; victim-oriented justice 117 Victims’ Law see Law 1448 of 2011 victor’s justice 120 vigilante justice 15 violence: cultural 12; definition 12; direct 12, 17; gender-based 6; indirect 12; personal 12; sexual 6, 67; in South Africa 106; structural 2, 5, 11–29; women’s testimonies of 65–67; see also structural violence Violence Triangle 12 Violencia, La 25 Voyages: The Trans-Atlantic Slave Trade Database 149–150 war crimes 120, 122 war veterans’ organisations 62 wealth 78, 82 Weber, Max 103 Western Cape Anti-Eviction Campaign 42 Williams, Eric 144 ‘willing buyer, willing seller’ process 25, 43 witchcraft 104, 105 172 Index women: exclusion of 82; involvement in transitional justice processes 17; testimonies of violence 65–67; see also women’s courts Women in Black 64 Women’s Court 54, 55, 58, 64–67 women’s courts 3, 64 World Bank 38 worldview 101–102; definition 102; interconnected 103–104, 107–108; scientific 102, 104; in South Africa 102–110; Western liberal 103, 107 Yugoslavia 56–57, 61–62, 71, 162 Yugoslav wars 61 Zagreb 61 Zimbabwe 13 ZRC see Peasant Reserve Zones Zuma, Jacob 101 .. .Transitional and Transformative Justice This book engages the limits of transitional justice and, more specifically, the interface between transitional justice and the related concept of transformative. .. between Transitional Justice and Development: Justice and Social Integration’ In Pablo de Greiff and Roger Duthie (eds), Tackling structural violence through transformative justice 31 Transitional Justice. .. limits of transitional justice, the possibility of reform and innovation within transitional justice, and the need to consider perspectives and approaches from outside transitional justice, the