Civil Society and Gender-Based Violence: Expanding the Horizons of Transitional Justice

Abstract.

The transitional justice field has thus far neglected the nature, scope and impacts of civil society initiatives for addressing gender-based violence. Using a feminist framework of analysis, I examine the role of civil society tribunals as a transitional justice mechanism. Despite their limitations, I argue that civil society tribunals can provide recognition for victim suffering, as well as challenge dominant narratives, explore the underlying individual and structural causes of violence and propose solutions to achieving non-violence and gender equality. Overall, I argue that transitional justice is a useful conceptual framework for examining civil society activity in addressing gender-based harms.

Notes

¹ Gender-based violence is a contested term. The Council of Europe Convention (Art 3 (d)) defines it to mean ‘violence that is directed against a woman because she is a woman or that affects women disproportionately’. This definition is problematic in treating ‘women’ as synonymous with ‘gender’, and implying that women and girls are exclusively victims of violence because of their gender, and equally that women and girls cannot be perpetrators of violence. My use of ‘gender-based violence’ in this article refers to a wide range of harms that are perpetrated because of the targeted victim's gender. It is important to note that gender need not be the only reason for violence and theories of intersectionality are thus useful for critically examining the ways in which victims are targeted or affected on the basis of gender, race, ethnicity, sexuality, age and other factors. For instance, victims may be equally victims of conflict-related sexual violence as well as other gender-based pre-existing realities or post-conflict outcomes, such as socio-economic impoverishment, discrimination, harassment and other harms.

² See Askin Kelly War Crimes Against Women: Prosecution in International War Crimes Tribunals Martinus Nijhoff Publishers The Hague 1997; Campbell Kirsten ‘The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia’ (2007) 1(3) International Journal of Transitional Justice 411; Franke Katherine ‘Gendered Subject of Transitional Justice’ (2006) 15 Columbia Journal of Gender and Law 813; Henry Nicola ‘Witness to Rape: The Limits and Potentials of International War Crimes Trials for Victims of Wartime Sexual Violence’ (2009) 3(1) International Journal of Transitional Justice 114; Meron Theodor ‘Rape as a Crime under International Humanitarian Law’ (1993) 87(3) American Journal of International Law 424.

³ See, for example, Buckley-Zistel Susanne and Stanley Ruth (eds) Gender in Transitional Justice Palgrave Macmillan London 2012; Kent Lia ‘Local Memory Practices in East Timor: Disrupting Transitional Justice Narratives’ (2011) 5 International Journal of Transitional Justice 434; Ross Fiona Bearing Witness: Women and the Truth and Reconciliation Commission in South Africa Pluto Press London & Sterling Virginia 2003.

⁴ Bell Christine and O’Rourke Catherine ‘Does Feminism Need a Theory of Transitional Justice? An Introductory Essay’ (2007) 1(1) International Journal of Transitional Justice 23; Charlesworth Hillary and Chinkin Christine The Boundaries of International Law: A Feminist Analysis Manchester University Press Manchester 2000; O’Rourke Catherine ‘Feminist Scholarship in Transitional Justice: A De-Politicising Impulse?’ (2014) 51 Women's Studies International Forum 118.

⁵ Transitional justice refers to different legal and non-legal mechanisms or processes for responding to past wrongdoings, such as genocide, crimes against humanity, war crimes and other harms perpetrated in the context of political violence. It includes criminal prosecutions, truth and reconciliation commissions, public apologies, memorials, reparations and political and institutional reform. Transitional justice as a field of study has more complex manifestations, encompassing normative or aspirational goals surrounding shifts from a state of conflict to peace, as well as potentially more substantive political and social transformation, such as gender and racial equality, environmental sustainability or socio-economic redistribution. In other words, transitional justice, through these varied mechanisms of justice, can be both individualistic or societal, and short- or long-term. Moreover, transitional justice provides a conceptual framework for bringing together competing discourses on the nature, extent and impact of past injustices, their contemporary effects and the possibilities for future redress measures. See Henry Nicola ‘From Reconciliation to Transitional Justice: The Contours of Redress Politics in Established Democracies' (2015a) 9(2) International Journal of Transitional Justice 199; Bell Christine ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-field”’ (2009) 3(1) International Journal of Transitional Justice 5; Teitel Ruti Transitional Justice Oxford University Press Oxford & New York 2000.

⁶ The few exceptions include Crosby Alison and Lykes M Brinton ‘Mayan Women Survivors Speak: The Gendered Relations of Truth Telling in Postwar Guatemala’ (2011) 5(3) International Journal of Transitional Justice 456; Schmid Evelyne ‘Gender and Conflict: Potential Gains of Civil Society Efforts to Include Economic, Social and Cultural Rights in Transitional Justice’ Human Rights in Conflict — The Role of Civil Society paper presented at SHUR Project Final Conference, Luiss University, Rome, 4–6 June 2009.

⁷ Ehrenberg John Civil Society: The Critical History of an Idea New York University Press New York 1999.

⁸ Cohen Jean and Arato Andrew Civil Society and Political Theory MIT Press Massachusetts 1992.

⁹ As above.

¹⁰ As above at viii.

¹¹ Habermas Jürgen The Theory of Communicative Action: Reason and Rationalization of Society trans by McCarthy Thomas Polity Press Cambridge 1987.

¹² Habermas Jürgen Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy trans by Rehg William MIT Press Massachusetts 1996 p 367.

¹³ Nielsen Kai ‘Reconceptualizing Civil Society for Now: Some Somewhat Gramscian Turnings' in Walzer Michael (ed.) Toward a Global Civil Society Berghahn Books Providence 1995 p 41.

¹⁴ Boesenecker Aaron and Vinjamuri Leslie ‘Lost in Translation? Civil Society, Faith-Based Organisations and the Negotiation of International Norms' (2011) 5(3) International Journal of Transitional Justice 364. 

¹⁵ Fraser Nancy ‘Transnationalizing the Public Sphere: On the Legitimacy and Efficacy of Public Opinion in a Post-Westphalian World’ (1997) 24(4) Theory, Culture and Society 7. See also Kaldor Mary, Anheier Helmut and Glasius Marlies Global Civil Society Polity Press Cambridge 2003; Lipschutz Ronnie ‘Reconstructing World Politics: The Emergence of Global Civil Society’ (1992) 21(3) Millennium-Journal of International Studies 389; Walzer Michael Toward a Global Civil Society Berghahn Books Providence 1995.

¹⁶ Fraser as above.

¹⁷ Buckley-Zistel Suzanne and Zolkos Magdalena ‘Introduction: Gender in Transitional Justice’ in Buckley-Zistel Susanne and Stanley Ruth (eds) Gender in Transitional Justice Palgrave Macmillan London & New York 2012 p 9 (original emphasis).

¹⁸ The term ‘comfort woman’ is a euphemism to refer to between 50,000 to 200,000 women and girls who were kidnapped, rounded up, coerced, lured, tricked, sold and otherwise recruited into military ‘prostitution’ for the Japanese military during the Asia-Pacific War (1931–45). While the majority of comfort women were Korean, a large number were also from China, as well as from other Southeast Asian, Pacific Island, American and European countries. The comfort women issue and the redress responses to sexual enslavement are discussed in further detail below. See, for example, Hicks George The Comfort Women W.W. Norton & Company New York & London 1997; Qui Peipei, Zhiliang Su and Lifei Chen Chinese Comfort Women: Testimonies from Imperial Japan's Sex Slaves UBC Press Vancouver 2013; Soh C Sarah The Comfort Women: Sexual Violence and Postcolonial Memory in Korea and Japan University of Chicago Press Chicago & London 2008.

¹⁹ Duthie Roger Building Trust and Capacity: Civil Society and Transitional Justice from a Development Perspective Research Unit International Center for Transitional Justice New York 2009.

²⁰ Brahm Eric ‘Transitional Justice, Civil Society, and the Development of the Rule of Law in Post-Conflict Societies' (2007) 9(4) International Journal of Not-for-Profit Law 62.

²¹ Hayner Priscilla ‘Responding to a Painful Past: The Role of Civil Society and the International Community’ in Bleeker Mô and Sisson Jonathan (eds) Dealing with the Past: Critical Issues, Lessons Learned, and Challenges for Future Swiss Policy KOFF Series Working Paper Swiss Peace Bern 2005 p 45. See also Backer David ‘Civil Society and Transitional Justice: Possibilities, Patterns and Prospects' (2003) 2(3) Journal of Human Rights 297 at 302–305; Crocker David A ‘Transitional Justice and International Civil Society’ (1998) 14 Social Philosophy Today 147; Rangelov Iavor and Teitel Ruti ‘Global Civil Society and Transitional Justice’ in Albrow Martin and Seckinelgin Hakan (eds) Global Civil Society 2011: Globality and the Absence of Justice Palgrave Macmillan London 2011 p 162.

²² Rangelov Iavor ‘Civil Society and Transitional Justice in the Balkans: Three Models of Interaction’ (2015) 1 Security in Transition 3–4.

²³ As above at 5.

²⁴ As above at 3–4.

²⁵ See Backer above note 21 at 302–305. See also Boesenecker and Vinjamuri above note 14; Hovil Lucy and Okello Moses Chrispus ‘Editorial Note’ (2011) 5(3) International Journal of Transitional Justice 333; Simić Olivera and Volčič Zala Transitional Justice and Civil Society in the Balkans Springer New York Heidelberg Dordrecht & London 2014.

²⁶ Winter Stephen ‘Towards a Unified Theory of Transitional Justice’ (2013) 7(2) International Journal of Transitional Justice 231.

²⁷ Henry above note 5.

²⁸ See Luban David ‘A Theory of Crimes against Humanity’ (2004) 29 Yale Journal of International Law 85.

²⁹ See Henry above note 5.

³⁰ Luban above note 28.

³¹ As above at 124.

³² Fraser Nancy ‘Social Justice in the Age of Identity Politics: Redistribution, Recognition and Participation’ in Peterson Grethe (ed.) The Tanner Lectures on Human Values XIX University of Utah Press Salt Lake City 1998 p 1.

³³ Duffett John (ed.) Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribunal, Stockholm, Copenhagen O'Hare Books New York 1968; Falk Richard ‘The Rights of Peoples (In Particular Indigenous Peoples)’ in Crawford James (ed.) The Rights of Peoples Oxford University Press New York 1988 p 17.

³⁴ See Russell Diana and Van de Ven Nicole Crimes Against Women: Proceedings of the International Tribunal Les Femmes Publications California 1976.

³⁵ See <http://www.burmalibrary.org/docs20/Nobel_Tribunal-burma-2010-en-op.pdf> Accessed 11 March 2016.

³⁶ Lykes M Brinton and Crosby Alison ‘Creative Methodologies as a Resource for Mayan Women's Protagonism’ in Hamber Brandon and Gallagher Elizabeth (eds) Psychosocial Perspectives on Peacebuilding Springer Cham Heidelberg New York Dordrecht & London 2014.

³⁷ See <http://www.zenskisud.org/en/> Accessed 11 March 2016.

³⁸ Lykes and Crosby above note 36 at 147.

³⁹ See, for example, Chinkin Christine ‘Women's International Tribunal on Japanese Military Sexual Slavery’ (2001) 95(2) The American Journal of International Law 335; Chinkin Christine ‘People's Tribunals: Legitimate or Rough Justice’ (2006) 24 Windsor Yearbook of Access to Justice 201; Dolgopol Tina ‘The Judgment of the Tokyo Women's Tribunal’ (2003) 28 Alternative Law Journal 242; Sakamoto Rumi ‘The Women's International War Crimes Tribunal on Japan's Military Sexual Slavery: A Legal and Feminist Approach to the “Comfort Women” Issue’ (2001) 3 New Zealand Journal of Asian Studies 49; Women's International War Crimes Tribunal for the Trial of Japan's Military Sexual Slavery Judgement on the Common Indictment and the Application for Restitution and Reparation 4 December 2001 The Hague The Netherlands <http://www1.jca.apc.org/vaww-net-> Accessed 11 March 2016 p 19.

⁴⁰ Chinkin as above.

⁴¹ Fredman Sandra Discrimination Law Oxford University Press Oxford 2011 p 25. This is based on Nancy Fraser's three dimensional model of justice as recognition (acknowledging the status of others); redistribution (fair distribution of benefits and burdens); and representation (symbolic representation through language) (discussed in further detail below). See Fraser Nancy ‘Reframing Justice in a Globalizing World’ in Global Inequality: Patterns and Explanations Held David and Kaya Ayse (eds) Polity Press Cambridge 2007 p 252.

⁴² Hovil and Okello above note 25 at 334.

⁴³ As above at 334.

⁴⁴ As above at 333.

⁴⁵ As above at 336.

⁴⁶ Henry above note 5.

⁴⁷ Buckley-Zistel and Zolkos above note 17 at 19.

⁴⁸ Nagy Rosemary ‘Transitional Justice as Global Project: Critical Reflections' (2008) 29(2) Third World Quarterly 275.

⁴⁹ Bell and O’Rourke above note 4.

⁵⁰ See also Buckley-Zistel and Zolkos above note 17 at 1; Schmid above note 6.

⁵¹ Orford Anne ‘Commissioning the Truth’ (2006) 15(3) Columbia Journal of Gender and Law 851.

⁵² Teitel above note 5 at 229–230.

⁵³ Franke above note 2 at 813.

⁵⁴ Buckley-Zistel and Zolkos above note 17.

⁵⁵ Dhawan Nikita ‘Transitions to Justice’ in Buckley-Zistel Susanne and Stanley Ruth (eds) Gender in Transitional Justice Palgrave Macmillan London & New York 2012 p 264.

⁵⁶ Chinkin above note 39.

⁵⁷ Ross above note 3 at 332; Soh above note 18.

⁵⁸ Lykes and Crosby above note 36.

⁵⁹ Valji Nahla Gender Justice and Reconciliation Friedrich-Ebert-Stiftung Berlin 2007.

⁶⁰ Lykes and Crosby above note 6 at 462.

⁶¹ Fraser above note 41. See also Henry Nicola ‘The Law of the People: Civil Society Tribunals and Wartime Sexual Violence’, in Powell Anastasia, Henry Nicola and Flynn Asher (eds), Rape Justice: Beyond the Criminal Law Palgrave Macmillan Basingstoke 2015b.

⁶² Fraser as above at 7.

⁶³ Soh above note 18.

⁶⁴ Fraser above note 32 at 8.

⁶⁵ Women's International War Crimes Tribunal above note 39.

⁶⁶ Fraser above note 32.

⁶⁷ Henry above note 61.

⁶⁸ Fraser above note 7.

⁶⁹ Fraser above note 32 at 7. It is interesting to note that in December 2015, a bilateral agreement was reached between Japan and South Korea regarding the comfort women issue. Under the agreement Japan promised to pay South Korea 1 billion yen to set up a foundation to support the few surviving comfort women, and to provide a stronger apology to the comfort women. South Korea in return promised to consider the matter ‘finally and irreversibly’ resolved and to consider the removal of the comfort women statue outside the Japanese Embassy in Seoul. While this redress example does not concern the 2000 civil-society Women's War Crimes Tribunal as such, it is an important reminder about the importance of processes of transitional justice. While the agreement, for instance, attempts to strike a deal that recognises the harm against the comfort women in clear and unambiguous terms, as well as provide some sort of redistribution in the form of monetary compensation, it has been criticised by various groups such as Amnesty International and the UN Committee on the Elimination of Discrimination Against Women (CEDAW) because political leaders failed to consult victim-survivors about the details of the agreement, and many victims want both a direct apology and direct compensation. See Sasazawa Kyoichi and Yomiuri Shimbun ‘U.N. Panel Criticizes “Comfort Women” Deal’ The Japan Times 8 March 2016 <http://the-japan-news.com/news/article/0002797179> Accessed 11 March 2016; Tiezzi Shannon ‘South Korea's “Comfort Women” Reject Deal with Japan’ The Diplomat 30 December 2015 <http://thediplomat.com/2015/12/south-koreas-comfort-women-reject-deal-with-japan/>  Accessed 11 March 2016.

⁷⁰ Sakamoto above note 39.

⁷¹ One exception is Lykes and Crosby above note 36.

⁷² Van der Merwe Hugo, Baxter Victoria and Chapman Audrey (eds) Assessing the Impact of Transitional Justice, Challenges for Empirical Research United States Institute for Peace Washington DC 2009.

⁷³ Bell and O’Rourke above note 3.

⁷⁴ See Henry above note 61.