INTRODUCTION

Despite the gains made for women following the Cuban Revolution in 1959, Cuban feminists were slow to recognize the ongoing problem of violence against women. Certainly, the Cuban revolution had focused on the needs of women at the outset. It had established a number of principal mass organizations shortly after 1959 including the Federation of Cuban Women (FMC) which set forth its initial objective as the incorporation women into the realm of productive labor. The FMC established day care centers, state-run cafeterias and take-out restaurants, and laundries as part of an effort to socialize domestic work. As a result, a ‘triumphalist discourse’ emerged which assumed that matters such as domestic violence would cease with changed material conditions.

Over time, however, Cubans recognized that domestic violence was an entrenched problem with grave consequences that called for research and resources. Through multidisciplinary efforts, Cuban scholars, policymakers, and activists have developed an approach to domestic violence that draws on its historical political culture and is distinguished by the socio-political norms that inform, if not characterize the Cuban revolution.

Domestic violence as a global feminist concern impacts localities differently. This paper examines an alternative approach to addressing gendered violence. It considers the circumstances in which domestic violence assumed heightened importance in Cuba, the framework within which Cubans approach the problem, and the principles means Cubans rely upon to address the issue.

CUBA IN THE INTERNATIONAL: HUMAN RIGHTS AS POLITICAL OPPORTUNITY STRUCTURES

Particular country conditions at any given time directly influence whether efforts to achieve gender-based reforms will be successful. For example, during times of political turmoil that threaten the stability of state regimes, when governments experience pressure – particularly in the form of external hostility – women may be reluctant to mount criticisms that target state practices. Under these circumstances, women are often forced to choose between defending their personal welfare or protecting their community or national wellbeing. For many complex reasons, they often choose the latter.

This dilemma describes the circumstances in Cuba with regard to domestic violence. It was not until the 1990s that feminists and the FMC publicly recognized the need to incorporate a gender analysis to assist in projects related to women's issues, including the problem of domestic violence. These developments occurred during the post-Soviet special period, when the United States increased its sanctions against Cuba.

INTRODUCTION

International law has primarily viewed time as functional. Statutes of limitations, the Rule of Inter-Temporal Law and two-year Security Council terms for nonpermanent members all illustrate the practicality of time in the international legal system. Time, however, plays a much more dynamic role. It is inherent to the construction and operation of international law. In spite of its ubiquity, however, time is rarely examined or identified as a tool. This chapter seeks to introduce temporality as an analytical framework in international law.

This chapter confines itself to a specific context within which to derive and apply a temporal analysis: international law's preoccupation with crisis. Legal scholars have widely argued that international law tends to place inordinate emphasis on crises, and can thus be said to adhere to a ‘crisis model’. This model facilitates and contributes to the marginalization of women and their interests.

INTRODUCTION

Sexual violence against women has been a recurrent feature of armed conflicts throughout history, and as the above quote demonstrates, still occurs daily in on-going conflicts. This is also evidenced by the alarming reports of the scale of sexual violence being committed against women in areas such as Darfur, the Democratic Republic of Congo, or Ivory Coast. The attacks against women are generally gender related and may include crimes such as sexual assaults, rape, sexual mutilations, sexual slavery, forced prostitution and forced impregnation.

Restorative justice has recently emerged as an increasingly important alternative to traditional punitive justice both during and after conflict and in peacetime. There are a number of on-going theoretical and normative debates as well as practical experiences being made around the world attempting to apply this innovative approach to justice. Some of these experiences have failed. Others have encountered problems, causing such approaches to be seriously put into question. Nevertheless, for its broader vision of the causes and consequences of crime; for its humane approach to victims, perpetrators and communities; and for its potential for accountability, deterrence, and reconciliation, restorative justice needs to be examined in a post-conflict context.

Some of the aspects of restorative justice in its stricter meaning may not be relevant or appropriate for dealing with sexual crimes in armed conflicts. Nevertheless, there are many aspects of this type of justice, which I believe to be suitable and even crucial to be taken into account in a transitional justice context, that is to say in giving it a broader appeal.

In Bosnia and Herzegovina, a vast and sprawling marketplace sprang up as peace accords were going into effect, bringing three and a half years of bloody ethnic fighting more or less to a conclusion. The place, Arizona Market, was created, fostered and supported by the international community (‘IC’), which for years would hype it as a shining example of capitalism, evidence of the positive impact of the political and economic engineering that takes place with internationally assisted post-war reconstruction.

The internationals present during the early days after the Dayton Peace Accords, mostly military, diplomatic and humanitarian actors, pointed to Arizona Market as the one place in Bosnia where Serbs, Croats and Bosniaks interacted peaceably. Early narratives about the Market expressed faith in its ability to spur peaceful relations between warring ethnicities through the neutrality of commerce, citing it as an example of how the free market transition could overcome ethnic disharmony in greater Bosnia and Herzegovina.

For quite some time, the IC ignored the fact that women were being sold in the market place, like slaves at auction, to be sent to brothels all over the region and beyond. They turned a blind eye to the human trafficking, even though (or perhaps because) some of them were themselves purchasing and selling women for sex and other indentured services. When stories began emerging outside of Bosnia and Herzegovina about human trafficking emanating from the hub of Arizona Market, the narrative abruptly changed to one describing it as a dark and seedy place, full of corruption and hidden criminal activity. Thus, the narratives surrounding Arizona Market are conflicting; and perhaps all hold some truth. It was in fact a place to buy the goods necessary for daily survival when there were none to be found elsewhere in decimated post-war Bosnia, but it was also a place to buy human beings to satisfy the sexual demands of the internationals and international money flooding into the region.

This chapter will employ the example of Arizona Market to illustrate some of the harms that emanate from the politico-economic engineering that takes place in early phases of post-conflict reconstruction, in particular the harms that accrue for women.

In 2010, ethnic violence broke out in Kyrgyzstan, the worst in decades. Displacing hundreds of thousands of Uzbeks to refugee camps along the Uzbekistan border, the clashes resulted in hundreds of deaths and an uncounted number of sexual assaults. On one Osh street alone, Kyrgyz men sexually assaulted more than ten Uzbek women and girls – some pregnant, some as young as twelve years old. The underlying causes of the violence remain disputed, with some citing ethnic or class tension and others suggesting political fallout from a recent presidential coup, but ultimately sides divided along the faultline of ethnicity. The United Nations High Commissioner for Human Rights thus urged an end to the ‘indiscriminate killings, including of children, and rapes [that] have been taking place on the basis of ethnicity’.

Statements like these, common in times of crisis and mass violence, subsume violence against women under a broader category of violence against an ethnic, political, or religious group, thereby obscuring the underlying histories of gender hierarchy and gender-based violence. For example, like many other countries, Kyrgyzstan is host to pervasive domestic violence even in times of relative peace. Although years of lobbying by women's rights groups resulted in the 2003 Law on Social-Legal Protection from Domestic Violence, as of 2006, enforcement remained limited at best, for reasons ranging from law enforcement apathy, to subscription to the prevailing paradigm of gender hierarchy, to the perceived failure of the law to promulgate and publicize a clear enforcement mechanism.

Kyrgyzstan is also home to the custom of ala kachuu (roughly: ‘grab and run’), which is the practice of ‘taking a woman or girl against her will through deception or force and using physical or psychological coercion to force her to marry one of her abductors’. The custom, which predates the twelft h century arrival of Islam in the region, is practised across Central Asia to varying degrees. A holdover from the days of marauding tribes who would steal women from rivals, ala kachuu now allows men to avoid the rigors of courtship and an often expensive ‘bride price’. As if the underlying gender hierarchies were not selfevident, one Kyrgyz graduate student explained that ‘[m]en steal women to show that they are men’.

INTRODUCTION

International law's approach to conflict-related harms has evolved over the years. Through various measures, such as the adoption of the 2005 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 [hereinafter 2005 UN Basic Principles], the international community of states has formally recognised the importance of adopting a victim-centred approach that addresses questions of justice from the perspective of victims. This article critically evaluates international law's embrace of a more victim-centred approach by studying how justice has been conceptualised at two levels, namely, its formal articulation at international law and its actual practice by victim movements. It proceeds by examining three questions: (1) the different approaches to justice for conflict-related harm developed by international law; (2) the mobilisation of three post-World War II movements around the idea of justice; (3) the conception or idea of justice put forward by these movements.

Before proceeding further, it is necessary to position this article, describe its subject matter, and outline its scope. The topic of reparations is potentiallybroad in nature and has been studied from various perspectives. By focusing on the perspective of victims, this article follows in the footsteps of recent scholarship emphasising the need to take a bottom-up approach when responding to mass injustice in a post-conflict or transitional context. By focusing on victim movements and applying social movement theory, this article limits itself to justice demands generated by movements composed of victims and their supporters. It does so for two purposes. First, without denying the legitimacy of other conflict-related justice claims, claims advanced by broad-based movements demand a certain legitimacy and attention from policy-makers in democratic societies. Second, as sites of knowledge generated through practice, movements are able to provide us with new insight when approaching contentious issues.

The post-World War II movements considered involve claims made for harms that are particularly serious in nature. These harms amount to violations of the victims’ fundamental rights, and were perpetrated in a systematic and organised manner. Within the human rights framework, these harms fall under the category of ‘gross and systematic violations of human rights’.

INTRODUCTION

Over the last 35 years approximately forty truth commissions have investigated human rights violations and abuses in a wide range of countries and communities. They were established by those in a society who believed that finding the truth through an examination of the past was important to build social and political trust. Their goals have generally been to uncover the truth and report findings and recommendations in order to strengthen or transition into democracy, reduce conflict and create a basis for long term reconciliation; bring about some form of transitional or restorative justice; and begin the process of change needed to avoid similar human rights violations in the future. Each of these forty commissions provides different lessons on how investigating and testifying about past abuse can lead to healing and change.

I have participated in two of the more remarkable Truth and Reconciliation processes, the first as an observer, the other as an advisor. The former is perhaps the most widely known and discussed TRC process, the one which took place in South Africa from 1996 to 1998 that examined the entire apartheid era in that country. The other was the first TRC process in the United States that took place in Greensboro, North Carolina from 2004 to 2006. It was a much narrower and less publicized process that looked at one incident in that City's past in order to help bridge the class and racial divides existing there. In addition to my own observations, I also had the opportunity to interview some of the staff and witnesses involved in these processes. As a result, I was able to review and analyze such factors as how these two Truth Commissions were constructed, how their mandates were developed, what their fact finding processes did and did not include, and what was the overall impact of their final reports including the implementation of their recommendations.

The first part contains chapters examining theoretical approaches to transitional justice. O’Rourke sets the stage by examining the diversity and evolution of feminist engagement with international law and reflects on efforts to ensure domestic gender justice. She details contemporary feminist criticism of international criminal law, which has been seen as sexualising and infantilising women as ‘victims’ and silencing individual women and more ‘radical’ feminist critiques. While not disregarding the criticisms, O’Rourke reminds us of the relationship or ‘boomerang pattern’ that can exist between international and domestic norms and thus, the relationship between international law and specific studies of gender and transitional justice. Looking in particular at the case of Chile and its efforts to deal with its troubled past, she argues that feminist perspectives on international criminal law could facilitate the transfer of knowledge and precedents between the international and the domestic levels of justice to the benefit of both terrains.

In Chapter 2, Ni Aoláin focuses us on the ongoing development of theory and practice through the creation of a ‘genealogy’ that looks at the engagement of feminist scholars with the discourses and activities of transitional justice. Recognising there are various conceptual or theoretical threads to this feminist engagement, as well as recognising the limits of law as an instrument of ‘justice’ due to its need for essentalised categories, she advocates feminists proceed with both caution and concern. She looks at how knowledge in the area is being and has been produced and by whom. Noting that women are now present and wellpositioned within the field, Ni Aolain urges that it is time to pause and reflect on just how feminist theory might productively transform our understanding of basic concepts, even that of transition itself. The essay offers some insight into what still needs to be done in order to develop a feminist theory and practice of transitional justice that can address the actual needs and harms of real women in particular transitional situations.

Gray and Levin introduce the concept of ‘extraordinary justice’ and attendant theoretical insights in Chapter 3.

INTRODUCTION

Gender and transitional justice is increasingly recognisable as a field in its own right, with work aimed at mapping the field, edited volumes capturing the diversity of the field, and increasing clarity around common questions that motivate the field. While the field now incorporates a wide diversity of disciplinary perspectives, gender and transitional justice has traditionally had a close and mutually-influencing relationship with feminist perspectives on international criminal law (ICL). The antecedents of what we now recognise as the field of gender and transitional justice lie firmly within the feminist approaches to ICL that emerged in the 1990s. That period marked the consolidation of a defined body of ICL, articulated in the statutes and jurisprudence of the ad hoc criminal tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY), and achieving codification in the Rome Statute of the International Criminal Court. Feminist international lawyers were significant in influencing this area of law, attempting to secure legal recognition and prohibition of gender-specific harms experienced by women in situations of violent conflict, and critiquing ICL's shortcomings in this regard. It is from this analysis of ICL by feminist international lawyers that we can identify the antecedents of many of the most persistent and substantial contemporary gender critiques of transitional justice, such as the absence of women, the elision of gendered harms, and the damaging preoccupation of transitional justice with public harms and the ‘primary’ conflict. As gender and transitional justice has consolidated as a field involving multiple disciplinary perspectives, it has moved further from its origins in ICL. Feminist perspectives on ICL have, in turn, moved further from a concern with the impact of ICL norms on domestic cases of transition.

In this chapter, I review more recent feminist scholarship in ICL, identifying a strong critical-reflective thrust to this scholarship, and mapping out a four-way typology of the feminist critiques made in this scholarship (Part 1). I contrast this critical-reflective scholarship with early feminist interventions into ICL, which were motivated, at least in part, by a desire to secure positive norm transfer from ICL to domestic criminal law in the legal treatment of harms against women (Part 2).

This chapter advances an ongoing conversation among feminist scholars engaged in transitional justice theory and practice about what constitutes a feminist theory of transitional justice. It takes as its departure point the critical questions posed by Bell and O’Rourke in their provocative essay asking ‘where are women, where is gender, and where is feminism in transitional justice’.

This chapter suggests that the feminist presence in transitional justice theory and practice is complex and multi-layered. Moreover, the full relevance of feminist theorisation is only slowly being revealed though ongoing engagement and critique. Before one can even identify a feminist thread to transitional justice practices and engagement one starts with the engagement of women qua women in the public and political arenas in which the terminology of accountability emerged in repressive and conflicted states. To do so, this chapter undertakes a genealogy of feminist presence in transitional justice scholarship. Inter alia, I address where the work of transitional justice scholarship more broadly defined has touched directly upon issues with evident gender dimensions.

The identification of women's interests with transitional justice practices has a short record. Only relatively recently has a distinctly feminist language and methodology emerged. As feminist engagement deepens, it meets a field that is rapidly expanding, and that has both the fortune and disadvantage of being termed an ‘industry’. The growth of transitional justice is both an opportunity and a warning. A new context gives rise to new opportunities, ideas and sites of intervention and action. Equally, newness often hides deep pitfalls of structural and entrenched gender discrimination. These snares have the tendency to come repackaged in the transitional context giving hope for gender transformation but rarely delivering. Feminists would do well to pause and reflect on the state of the field, and think about how best to proceed forward? How to avoid the constant sense of just catching up to the where the field has expanded to? How to think about framing a feminist vision of transition that is not only responsive to expansion and opportunity but could actually frame on its own terms the basis of engagement?

The fourth part offers three specific case studies of the application of transitional justice processes using different methodologies. Muftić and Rašić employ an empirical lens to consider the issue of gender integration and the police in postconflict Bosnia Herzegovina. They gather data examining women's participation as agents of change in comparison with the role of their male colleagues in the process.

Haynes examines the impact of neoliberalism in the context of human trafficking. She uses the example of the Arizona Market to demonstrate the negative impact politico-economic engineering can have when undertaken during the early phases of post-conflict reconstruction.

Finally, Goldscheid provides a comparison of the reform processes in the US and South Africa for addressing the ways in which gender violence impacts survivors’ abilities to find and remain in employment. It examines with a special focus on South Africa how specific reforms are very advanced tools which have the potential to help victims of domestic or sexual violence but how in reality they are very difficult to apply because of the economic, social, and legal gaps that are wide open in these societies.

INTRODUCTION

This chapter takes on the parallel processes of law reform and cultural transformation by comparing gender violence reform projects in the United States with those in South Africa. It does so by focusing on one strand of advocacy, that addressing the economics of abuse. Since economic independence is central to survivors’ ability to navigate abuse, the ability to work in its aftermath can be critical. This chapter compares the respective countries’ reform projects to address the ways gender violence impacts survivors’ ability to get and keep their jobs. It places reforms addressing the impact of abuse on employment in the broader context of each country's domestic and sexual violence reform movements and describes the countries’ respective employment-related projects, with a focus on those in South Africa.

The similarities and differences in economics, culture and law underscore several lessons about the possibility of achieving transformational change. The potential for law reform in South Africa is rich, given employment laws that mandate procedurally and substantively fair dismissals, and a constitutional and statutory structure centering substantive equality. Nevertheless, high rates of violence and poverty create a wide gap between the potential for law reform and the realistic possibilities for meaningful change.

Notwithstanding differences in economics, legal access, and cultural context, the challenges in advocating to address the economic impact of gender violence in both countries are different in degree rather than in kind. Both reflect the difficulty of ensuring meaningful implementation of domestic violence law reforms. Both confront the limitations of legal advocacy for those working in the informal labor sector. And both highlight the difficulties and importance of reform that centers on challenging bias in its many forms, in order to create legal change as well as cultural transformation.

CONTEXT

Reform initiatives to address the ways gender violence interferes with women's ability to maintain paid work is best understood in the context of the respective countries’ rates of violence and abuse, and of women's participation in the paid labor market.

PREVALENCE OF ABUSE

The statistics on the prevalence of abuse in both countries reveal differences in scale, rather than in kind.

The third part explores some of the alternative justice mechanisms that are emerging within the transitional justice framework. In Chapter 8 Zinsstag considers the positive potential a restorative justice approach as a way to transcend the reliance on punitive measures of justice in a retributive model. She argues that this approach encompasses the entire community's interests and needs, not just those of the individual victim and she also considers the actions and responsibilities of that community both for the social and structural contexts in which the offenses took place and for the development and implementation of the reconciliatory process that will follow and hopefully restore harmony. She specifically considers whether a restorative justice approach would be effective as a way to achieve transitional justice response in the context of sexual violence committed during armed conflicts. Given the relative newness of the restorative justice approach, Zinsstag is cautious about urging more than just the incorporation of a few aspects of the model at this time. Looking to the Sierra Leone Truth Commission as a form of restorative project, she ends with some tentative optimism about the model's possibilities in the future.

Maisel's Chapter 9 looks into feminist approaches to remediating structural sexism and improving truth and reconciliation processes in the United States. This chapter approaches the concepts of conflict, harm, and justice from a broad and inclusive perspective. The conflict she examines also differs from others discussed in the collection both because of the remoteness of the events that lead to the Commission and because the process was not undertaken by the government or a formal legal body, but by citizens with the assistance of outsiders to the community who had experience with truth commissions elsewhere. She analyses the Greensboro experience and compares it with the literature on truth and reconciliation commissions at the international level, arguing that there is room for improvement in dealing with past human rights violations in the United States.

Wasonga in Chapter 10 examines the transitional justice process situated in northern Uganda as illustrative of the struggle between punitive and restorative justice approaches.