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Abstract
This article critically examines the concept of legal empowerment as it has been used with reference to transitional justice, mapping its rise and impact based on a selection of case studies. In recent decades, international transitional justice advocacy has evolved dramatically, with practice increasingly emphasising the centrality of criminal accountability for violence, precisely as more holistic approaches have emerged that have broadened the remit of transitional justice. Post-conflict justice advocates have thus become professionalised transitional justice entrepreneurs working on issues such as democratic transitions, rule of law and human rights. A legal empowerment discourse has emerged in a number of scholarly debates that discuss legalistic and normative issues related to the implementation of retributive and restorative justice mechanisms. In theory, the concept of legal empowerment addresses the issue of social exclusion in transitions, increasing the rights of the marginalised. In practice, however, legal empowerment has disappointed and raises several issues around its performance that are scrutinised in this article. Drawing on case studies in Nepal, Tunisia and Bosnia-Herzegovina the authors analyse issues related to agency, institutions and structure, and argue for a needs-centred, participatory approach in place of the rights-based legal empowerment concept.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributors
Arnaud Kurze is Assistant Professor in the Department of Justice Studies at Montclair State University. His research focuses on human rights as well as post-conflict and post-authoritarian justice. His current project explores youth activism in post-revolutionary Tunisia. In the past he worked on restorative justice mechanisms in the Balkans, such as a regional truth commission called RECOM. He has written extensively on transitional justice and regularly contributes analyses and op-ed articles online for think tanks and other institutions. He received numerous awards and fellowships from many progressive institutions, including the Woodrow Wilson Center.
Christopher Lamont is Assistant Professor of International Relations at the University of Groningen and Associate Professor at Osaka University. He is also Co-Chair of Research in Ethics and Globalisation within the inter-faculty research institute Globalisation Studies Groningen. He was previously a postdoctoral fellow at the Transitional Justice Institute at the University of Ulster and a Fulbright Scholar at the University of Zagreb in Croatia. He has published widely on international criminal justice and transitional justice.
Simon Robins is a researcher and practitioner with an interest in transitional justice, humanitarian protection and human rights. He is a Senior Research Fellow at at the Centre for Applied Human Rights at the University of York, and consults for a range of international agencies. His work is driven by a desire to put the needs of victims of conflict at the heart of efforts to address its legacies, and this has led to his engaging with victim-centred and therapeutic approaches to histories of violence. The issue of persons disappeared and missing in armed conflict remains a focus of his work, and he has published widely on this topic including a recent book from Routledge.
Notes
1. George Soros, ‘Legal Empowerment, Justice and Development’, in Case Studies in Legal Empowerment: From Land Rights to Healthcare (New York: Open Society Institute, 2013), 1, http://www.opensocietyfoundations.org/publications/justice-initiatives-legal-empowerment.
2. See for instance Jamie O'Connell, ‘Empowering the Disadvantaged After Dictatorship and Conflict: Legal Empowerment, Transitions and Transitional Justice’, in Legal Empowerment: Practitioner's Perspectives, ed. Stephen Golub and Thomas McInerney (Rome: International Development Law Organization, 2010), 117.
3. Commission on Legal Empowerment of the Poor, and United Nations Development Programme, Making the Law Work for Everyone (New York: United Nations Development Programme, 2008), 3.
4. Ibid., 25–42.
5. Ibid., 31–2.
6. Ibid., 27.
7. Ibid., Chap. 2.
8. Daniel Aguirre and Irene Pietropaoli, ‘Gender Equality, Development and Transitional Justice: The Case of Nepal’, International Journal of Transitional Justice 2, no. 3 (2008): 359.
9. Stephen Golub and Kim McQuay, Law and Policy Reform at the Asian Development Bank (Manila: Asian Development Bank, 2001).
10. Ibid., 7.
11. Ibid., 8.
12. For a detailed discussion on the globalisation of the rule of law see for instance Yves Dezalay and Bryant G. Garth, Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy (Ann Arbor, MI: University of Michigan Press, 2002).
13. See for instance, United Nations Population Fund, Advocating Change: Population, Empowerment, Development (New York: United Nations Population Fund, 1995); Srinivas R. Melkote and H. Leslie Steeves, Communication for Development in the Third World: Theory and Practice for Empowerment (Thousand Oaks, CA: Sage Publications, 2001); Jane L. Parpart, Shirin Rai, and Kathleen A. Staudt, Rethinking Empowerment: Gender and Development in a Global/Local World (New York: Routledge, 2002); Naresh C. Singh and Vangile Titi, Empowerment for Sustainable Development: Toward Operational Strategies (Nova Scotia: Fernwood Publishing, 1995); and Nicholas Herbert Stern, Growth and Empowerment: Making Development Happen (Cambridge, MA: MIT Press, 2005).
14. Dustin Sharp, ‘Interrogating the Peripheries: The Preoccupations of Fourth Generation Transitional Justice’, Harvard Human Rights Journal 26, no. 1 (2013): 149.
15. See for instance Hugo Van der Merwe, Victoria Baxter, and Audrey R. Chapman, eds, Assessing the Impact of Transitional Justice: Challenges for Empirical Research (Washington, DC: United States Institute of Peace Press, 2009).
16. See UNPD website, http://www.snap-undp.org/lepknowledgebank/Default.aspx (accessed 2 February 2014).
17. See World Bank website, https://openknowledge.worldbank.org/ (accessed 29 March 2014).
18. See for instance Vivek Maru, ‘Access to Justice and Legal Empowerment: A Review of World Bank Practice’, Hague Journal on the Rule of Law 2, no. 2 (2010): 259–81.
19. Anna Di Lellio and Caitlin McCurn, ‘Engineering Grassroots Transitional Justice in the Balkans: The Case of Kosovo’, East European Politics & Societies 27, no. 1 (2013): 136–7.
20. See the edited volume by Thomas Carothers, Promoting the Rule of Law Abroad: In Search of Knowledge (Washington, DC: Carnegie Endowment for International Peace, 2006).
21. See for instance James A. Goldston, ‘The Rule of Law at Home and Abroad’, Hague Journal of the Rule of Law 1, no. 1 (2009): 38–45.
22. Ibid., 44.
23. Stephen Golub, ‘The Commission on Legal Empowerment of the Poor: One Big Step Forward and A Few Steps Back for Development Policy and Practice’, Hague Journal of the Rule of Law 1, no. 1 (2009): 110.
24. Ibid.
25. Maru, ‘Access to Justice’.
26. Ibid., 275.
27. See for instance Matthew Stephens, ‘The Commission on Legal Empowerment of the Poor: An Opportunity Missed’, Hague Journal of the Rule of Law 1, no. 1 (2009): 132–55.
28. Dan Banik, The Legal Empowerment Agenda: Poverty, Labour and the Informal Economy in Africa (Farnham: Ashgate Publishing, 2011).
29. Andrea Cornwall and Celestine Nyamu-Musembi, ‘Putting the “Rights-Based Approach” to Development into Perspective’, Third World Quarterly 25, no. 8 (2004): 1433.
30. Ibid., 1434.
31. David Crocker, ‘Transitional Justice and International Civil Society: Toward a Normative Framework’, Constellations 5, no. 4 (1998): 500.
32. Patricia Lundy and Mark McGovern, ‘Whose Justice? Rethinking Transitional Justice from the Bottom Up’, Journal of Law and Society 35, no. 2 (2008): 265–92.
33. Willem Assies, ‘Legal Empowerment of the Poor: With a Little Help from Their Friends?’, Journal of Peasant Studies 36, no. 4 (2009): 922.
34. For a discussion on political participation and fragile state structures see Christopher K. Lamont and Héla Boujneh, ‘Transitional Justice in Tunisia: Negotiating Justice during Transition’, Politička Misao 49, no. 5 (2012): 32–49.
35. See for instance Simon Robins, An Assessment of the Needs of Families of the Missing in Timor-Leste (York: Post-War Reconstruction and Development Unit, 2010), 75–80.
36. Simon Robins, ‘Whose Voices? Understanding Victims' Needs in Transition – Nepali Voices: Perceptions of Truth, Justice, Reconciliation, Reparations and the Transition in Nepal’, Journal of Human Rights Practice 1, no. 2 (2009): 320–31; Simon Robins, ‘Towards Victim-Centred Transitional Justice: Understanding the Needs of Families of the Disappeared in Postconflict Nepal’, International Journal of Transitional Justice 5, no. 1 (2011): 75–98.
37. Arnaud Kurze, ‘Democratizing Justice in the Post-Conflict Balkans: The Dilemma of Domestic Human Rights Activists', CEU Political Science Journal 7, no. 3 (2012): 243–68; Arnaud Kurze and Iva Vukušić, ‘Afraid to Cry Wolf: Human Rights Activists' Struggle of Transnational Accountability Efforts in the Balkans', in Transitional Justice and Civil Society in the Balkans, ed. Olivera Simić and Zala Volčič (New York: Springer, 2013): 201–15.
38. Kurze, ‘Democratizing Justice’; and Kurze and Vukušić, ‘Afraid to Cry Wolf’.
39. For a discussion on cross-case selection see for instance Jason Seawright and John Gerring, ‘Case Selection Techniques in Case Study Research: A Menu of Qualitative and Quantitative Options', Political Research Quarterly 61, no. 2 (2008): 294–308.
40. UNESCO, Forms and Patterns of Social Discrimination in Nepal, UNESCO Kathmandu Series of Monographs and Working Paper, No. 8 (Kathmandu: UNESCO, 2006).
41. Simon Robins, ‘Families of the Missing: A Test for Contemporary Approaches to Transitional Justice’, Journal of Intervention and State-Building 7, no. 1 (2013), 45–64.
42. Ram Chhetri, ‘The Plight of the Tharu Kamaiyas of Nepal: A Review of Social Economic and Political Facets', Occasional Papers in Sociology and Anthropology (Kathmandu: Central Department of Sociology and Anthropology, Tribhuvan University, 2005), 23–46.
43. Ganesh Man Gurung, ‘Migration, Politics and Deforestation in Lowland Nepal’, in Nepal, Tharu and Tarai Neighbours, ed. Herald O. Skar (Kathmandu: EMR, 1999), 85–95.
44. Anita Cheria, Edwin Nanda Kumar Kandangwa, and Khemraj Upadhyaya, Liberation is Not Enough: The Kamaiya Movement in Nepal (Kathmandu: ActionAid Nepal, 2005).
45. Robins, ‘Families of the Missing’.
46. Simon Robins, ‘Transitional Justice as an Elite Discourse’, Critical Asian Studies 44, no. 1 (2012): 3–30.
47. Ibid.
48. Robins, ‘Families of the Missing’.
49. Marius Pieterse, ‘Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited’, Human Rights Quarterly 29, no. 3 (2007): 796–882.
50. Thomas Cox Backward Society Education (BASE), The Development of a Grassroots Movement (Tulsipur: BASE Nepal, 1994).
51. UNDP, Access to Security, Justice & Rule of Law in Nepal (Kathmandu: UNDP, 2012).
52. Alcinda Honwana, ‘Youth and the Tunisian Revolution’, Conflict Prevention Peace Forum Policy Paper (Brooklyn, NY: Social Science Research Council, 2011).
53. On 7 November 1987 Ben Ali assumed power in a bloodless coup in which he declared Tunisia's first post-independence president, Habib Bourguiba, mentally unfit to govern. For more on the role of youth in the Tunisian revolution see ibid.
54. Laryssa Chomiak, ‘The Making of a Revolution in Tunisia’, Middle Eastern Law and Governance 3 (2011), 68–83.
55. Sylvie Floris, Studies on Youth Policies in the Mediterranean Partner Countries, Tunisia, EuroMed Youth III Programme (Brussels: European Union, 2010).
56. Interview with youth party representative from Parti unifié des patriotes democrats, 23 January 2014.
57. Maria Cristina Paciello, ‘Youth Exclusion in North African Countries: Continuity or Change?’, in Reversing the Vicious Circle in North Africa's Political Economy: Confronting Rural, Urban, and Youth-Related Challenges, ed. by Maria Cristina Paciello, Habib Ayeb, Gaëlle Gillot, and Jean-Yves Moisseron (Washington, DC: German Marshal Fund, 2012), 27.
58. Amor Boubakri and Hela Boujneh, ‘Tunisia's Second Revolution’, Al Jazeera, 13 December 2013, http://www.aljazeera.com/indepth/opinion/2013/12/tunisia-second-revolution-2013121793231533676.html (accessed 25 February 2014).
59. Interview with the director of a Tunisian NGO, 17 April 2014.
60. International Labor Organization, Global Employment Trends 2014: The Risks of a Jobless Recovery? (Geneva: PRODOC, 2014), 45.
61. See for instance David Chandler, Bosnia: Faking Democracy After Dayton (London: Pluto Press, 2000); Florian Bieber, Post-War Bosnia: Ethnicity, Inequality and Public Sector Governance (Basingstoke: Palgrave Macmillan, 2006); and Lara Nettelfield Courting Democracy: The Hague Tribunal's Impact in Bosnia-Herzegovina (Cambridge, NY: Cambridge University Press, 2010).
62. See for instance Commission on Legal Empowerment, Making the Law; Dan Manning, ‘Supporting Stability and Justice: A Case Study of NGO Legal Services in Post-Conflict Bosnia-Herzegovina’, in Legal Empowerment: Practitioner's Perspectives, ed. Stephen Golub and Thomas McInerney (Rome: International Development Law Organization, 2010): 137–56; and Dan Manning, Civil Legal Aid in the Western Balkans: Achievements, Opportunities and Risks (PILnet.org, 2012), http://www.pilnet.org/public-interest-law-resources/62-civil-legal-aid-in-the-western-balkans-achievements.html (accessed 20 February 2014).
63. Manning, ‘Supporting Stability’, 143.
64. Ibid.
65. Ibid., 147.
66. Ibid.
67. While several human rights organisations have reported the ratification of legislation protecting minorities and disadvantaged populations, they stress that progress on the ground is slow and needs to be improved. See for instance the United Nations Office of the High Commissioner for Human Rights, http://www.ohchr.org/en/countries/enacaregion/pages/baindex.aspx (accessed 23 February 2014).
68. Vesna Nikolić-Ristanović and Mirjana Dokmanović, International Standards on Domestic Violence and Their Implementation in the Western Balkans (Belgrade: Prometej, 2006). For recent updates on women's rights legislation in Bosnia-Herzegovina see also the 2014 country report by Human Rights Watch, http://www.hrw.org/world-report-%5Bscheduler-publish-yyyy%5D/world-report-2014-bosnia-and-herzegovina (accessed 25 February 2014).
69. Nikolić-Ristanović and Dokmanović, International Standards, 147.
70. Simić and Volčič, Transitional Justice.
71. See United Nations Resolution 827, http://www.un.org/docs/scres/1993/scres93.htm (accessed 25 January 2014).
72. For a detailed discussion see for instance Richard H. Steinberg, Assessing the Legacy of the ICTY (Leiden: Martinus Nijhoff Publishers, 2011).
73. The issues pertain not only to moral and psychological questions – including the witness's general motivation, and his or her desire for justice or reconciliation – but also to practical consequences, such as life in his or her community after returning home from the trial. For an in-depth discussion of victims testifying in trials see Eric Stover, The Witnesses: War Crimes and the Promise of Justice in The Hague (Philadelphia, PA: University of Pennsylvania Press, 2007).
74. See the website of the RECOM Coalition Initiative, http://www.zarekom.org/ (accessed 15 February 2014).
75. Kurze, ‘Democratizing Justice’.
76. Dan Bilefsky, ‘Protest in Bosnia Over IDs Traps Hundreds in Parliament’, The New York Times, 7 June 2013.
77. See for instance Dan Bilefsky, ‘Protests Over Government and Economy Roil Bosnia’, The New York Times, 7 February 2014; and Alison Smale, ‘Roots of Bosnian Protests Lie in Peace Accords of 1995’, The New York Times, 14 February 2014.
78. Alison Smale, ‘Furious Bosnians Shut Down Central Sarajevo’, The New York Times, 10 February 2014.