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.

INTRODUCTION

Societies in general often consider policing to be a male profession. The end result is that most police forces are comprised primarily of men. This is the case in Bosnia and Herzegovina (hereby simply referred to as Bosnia) where, historically, few women have participated in law enforcement and where police culture has been heavily steeped in traditions of patriarchy and sexism (which were exacerbated by the 1992–1995 war). Gender integration, however, has become a focal point of the police reformation process in post-conflict Bosnia. Gender integration activities have largely targeted the recruitment, hiring, and advancement of female officers throughout Bosnia. As a result, women now currently constitute 6.3% of the Bosnian police force. Despite the push to integrate females into the police force, little is known empirically about these women. Who are they? What are their experiences? What are their attitudes? What attracted them to policing? Are they ‘different’ than their male colleagues? And if so, how?

This essay will explore women's participation and role as agents of change in the police reformation process in post-conflict Bosnia. Specific attention will be devoted to the characteristics, rankings, and attitudes of female officers serving in post-conflict Bosnia, with comparisons made with their male counterparts. Results from a survey of 10 female Bosnian police officers, as well as policy implications and suggestions for future research will be presented.

POLICE REFORMATION IN BOSNIA

The 1992–1995 war left Bosnia with three separate police forces; one for each ethnicity (Bosniak, Croat, and Serb). Subsequently, each police force had its own separate jurisdiction. While the Bosnian and Croatian police forces (aka Bosniak-Croat Federation) have since merged (at least by name), the Republika Srpska police force has flatly refused any and all efforts to integrate with the federation. In addition to the law enforcement agencies operating at the state level (Bosniak-Croat Federation, Republika Srpska, Brčko District, Border Police, and SIPA), each canton has a separate law enforcement agency (10 total cantons). The overall size of the Bosnian local police force in the post-war years was also problematic. It was estimated that in 1996 there were about 40,000 police officers operating in Bosnia, three times peacetime strength. Furthermore, there were very few ethnic minority and female police officers.

The second part of the collection concentrates more specifically on feminist legal strategies and their potential consequences. In Chapter 5 Hansel explores a feminist conception of ‘time’ in order to induce international lawyers and academics to consider time as beyond its functional dimension and seeing how different, even competing conceptions of time might manipulate and shape international law. A currently dominant notion of ‘emergency time’ reflects law's preoccupation with crisis and the need for immediate and heroic intervention, which often negatively affects women by ignoring the dimensions of the crisis most relevant to their lives. This sense of crisis time tends to ignore root causes, viewing crises as discreet events rather than a heightening of continuing relations of inequality. She explores some of the potential the benefits of using alternative feminist time-frames where time may be viewed as ‘regression’ (finding value in the past); ‘redemption’ (future and positively focused); ‘rupture’ (not coherent or continuous); or ‘repetition’ (cyclical and infinitely reoccurring).

In Chapter 6, Cheah takes us back in time to explore three movements for justice as they were developed after World War II. While only one was explicitly about women, all three movements shared the organising principle of viewing the state as a perpetuator of harm as understood from a ‘victim's perspective’; Much of contemporary feminist theory is critical of the designation of women as victims because it robs them of agency and individuality and renders them as helpless beings in need of paternalistic protections. Cheah's examples show there is also occasionally (at least historically) some positive power in pursuing a victim stance and also that it is not only women who can be perceived as victims. Using existing international law and the human rights paradigm that emerged after the War, these movements employed specific notions of group harm and remedy in defining how justice should be understood. The comfort women justice movement arose out of the work of feminist academics in Korea with women who had been forced into prostitution by the Japanese military. Justice was redefined beyond individual remedy to the state giving both recognition to and atonement for the wrongs that were done. Interestingly, the stories themselves show how claiming victim status sometimes can be empowering for a group and belie the designation of the victim as passive and helpless.

The last two decades have produced a number of publications on topics such as gender and human rights or international law. However, with the exception of Gender in Transitional Justice (Buckley-Zistel and Stanley, eds.), there still is little written on gender and feminist issues in the fast-growing arena of transitional justice.

Truth-seeking mechanisms, international criminal law developments, and other forms of transitional justice have become ubiquitous in societies emerging from long years of conflict, instability, and oppression and moving into a post-conflict, more peaceful era. In the concluding chapter of her influential work, Transitional Justice, Professor Ruti Teitel argues that transitional justice work can be seen as developing a paradigm that combines politics with law to address the need to reconstruct on stable basis a society affected by instability on many different fronts. She writes:

Both top-down and bottom-up approaches to transitional justice are being developed formally and informally in places such as South Africa, Liberia, Peru, Chile, the Democratic Republic of Congo, Sierra Leone, Rwanda, the former Yugoslavia, and Northern Ireland. Elaboration of theories relating to transitional justice generally can be found in studies, debates, and conferences world-wide. These sources typically do not take into account in any systematic manner the specific victimisation of women. Few commentators consider whether the recently developed mechanisms for promoting peace and reconciliation will actually help the position of women as a society moves out of repression or conflict. This is unfortunate. Because post-conflict societies must rebuild, they are uniquely positioned to effect change. The restorative process to build a stable and democratic polity affords an opportunity to introduce new standards that would facilitate, if not ensure, the active participation of the entire population, particularly including women.

INTRODUCTION

Women and girls continue to suffer from the predicaments associated with violent conflicts in which they are victims of rape, sex-slavery, forced marriage or prostitution and abductions. These acts are usually committed as part of systematic war strategies or are occasioned by vulnerability of women during war times. During war periods, women bear heavy responsibility of sustaining their households as they fill the gaps left by men who may have joined the warring groups, or may have been killed or may have escaped. Thus women assume the responsibility of being the heads of their households. Yet the place of women remains peripheral in transitional justice initiatives which are geared towards bringing about sustainable peace in post-war societies. The situation of northern Uganda where the Lord's Resistance Army (LRA) committed serious civilian atrocities against the dominantly Acholi population of northern Uganda for over twenty years is one of those situations where transitional justice initiatives have not adequately placed women at the centre.

In 2003 the President of Uganda, Yoweri Museveni, referred the situation in the International Criminal Court (ICC). This referral generated debates regarding the appropriateness of the court vis-à-vis local peace and justice initiatives that were being proposed. Traditional leaders, civil society organisations, religious leaders and a section of the population rejected the ICC's pursuit of retributive justice for the LRA commanders as being an obstacle to peace. Instead they advocated forgiveness and reconciliation as a more viable route to peace. Central to the debates were the criteria of justice that would appropriately bring lasting peace and stability to the region. This discourse was placed within the framework of punitive versus restorative justice. But neither side of the debate critically placed women at the centre, yet women have born the greatest suffering during the conflict. This chapter therefore seeks to identify this lacuna by examining the place of women in the transitional justice processes in northern Uganda by asking whether the approaches to transitional justice in northern Uganda were broad enough to cover various forms of dehumanisation like rape, suffered by women during the conflict. In this chapter, I argue that taking cognisance of conditions of women and their needs in transitional justice processes is a key to creating sustainable peace and stability in northern Uganda as elsewhere.

The globalisation of transitional justice as a framework for the resolution of conflicts is recognised as a remarkable phenomenon of the post-Cold War era. The transitional framework is regarded by advocates as a mechanism for enabling politically conflicted and post-colonial societies to institutionalise universal principles of equality and human rights within processes of statebuilding or regime reform. Intersectionality theory, too, has achieved an extraordinary status ‘at the cutting edge of feminist theorising’, particularly in the European context. It enables us to analyse these principles in practice. In particular, it poses useful theoretical and empirical questions for explaining gendered dimensions of transitions in cultures that are described as ‘deeply divided’. This chapter explores these questions in relation to women's absence in peace negotiations and the silence in negotiations on material matters to do with women's day-to-day lives, with a focus on Northern Ireland's 1998 Agreement as a site for intersectional analysis. The pragmatic implications of universal claims for equality are examined in this jurisdiction where political and religious inequalities are recognised in law. The analysis affirms critical correlations between structural, economic and political inequality, violent conflict and the limitations of law as a discursive framework for conflict resolution. An intersectional conceptualisation of gender aids in understanding the local realities of women's lives in this and other transitions. This also goes some way to explaining women's political agency and the dilemmas facing feminist advocacy in these circumstances. The original intersectional triad of race/class/ gender is flexible. This is why it is such a useful tool for feminist analysis in contexts as diverse as the ‘Arab Spring’, Afghanistan and Northern Ireland. Each of these locations, and most, if not all, transitional jurisdictions are characterised by histories that invoke identity discourses. Intersectionality theory can be used to examine the material and cultural potency of these discourses in women's lives locally and globally. This leads to the recommendation that targeting deeprooted inequalities reduces the divisiveness of identity politics and strengthens political stability. In this way marginalised women's lives can be improved and the root causes of a conflict addressed. This is fundamentally about the distribution of resources within a society in transition. Parties emerging from violent political conflict are unlikely to view this recommendation in a neutral light.

INTRODUCTION

I have the privilege and the responsibility to be the first prosecutor of the International Criminal Court (ICC). My mandate is to put an end to impunity for the most serious crimes of concern to the international community, including gender crimes as part of genocide, crimes against humanity and war crimes, and to contribute to the prevention of such crimes. The Rome Statute pays particular attention to gender crimes.

Accordingly, since my appointment over nine years ago, the Office has been developing policies on gender crimes.

In doing so, we have benefited extensively from the expertise of international and non-governmental organizations. A number of experts have paved the way, pushing for accountability of gender crimes; the ad hoc tribunals’ jurisprudence has laid the groundwork for the development of international criminal law in this area.

HISTORICAL NOTION

The recognition of “gender violence” or “gender crimes” is relatively recent in international law. For example, the 1979 Convention on the Elimination of All Forms of Discrimination against Women did not address issues relating to violence against women. For a long time, the gender perspective was also not reflected in major international instruments related to international crimes such as the Convention against Torture and Inhuman, Cruel or Degrading Treatment or Punishment.

It was only in the early 1990s that there was greater understanding of gender crimes. In particular, the 1992 General Recommendation No. 19 by the Committee on the Elimination of Discrimination against Women constituted a major step. It defined gender-based violence as a form of discrimination against women. The General Recommendation took the view that “the definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately.”

In the field of international criminal justice, the evolution that took place in 60 years is remarkable. Remember that Robert Jackson, the Chief Prosecutor of the Nuremberg Tribunal, decided not to present sexual crimes in the cases against the Nazi leaders.

The efforts since the mid-90s to obtain accountability for atrocities committed against women during the conflict in the former Yugoslavia helped establish how rape and other sexual violence could be instrumentalised in a campaign of genocide. This equally contributed to the expanded understanding of sexual or gender violence as war crimes and crimes against humanity.