JUSTICE MOSAICS How Context Shapes Transitional Justice in Fractured Societies EDITED BY ROGER DUTHIE AND PAUL SEILS INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE, NEW YORK, 2017 INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE The International Center for Transitional Justice (ICTJ) helps societies in transi- tion address legacies of massive human rights violations and build civic trust in state institutions as protectors of human rights. In the aftermath of mass atrocity and repression, ICTJ assists institutions and civil society groups in considering measures to provide truth, accountability, and redress for past abuses. Committed to the vindication of victims’ rights and the promotion of gender justice, ICTJ provides expert technical advice and knowledge of rel- evant comparative experiences in transitional justice efforts from across the globe, including criminal prosecutions, reparations initiatives, truth seeking, memorialization efforts, and institutional reform. Learn more about ICTJ at www.ictj.org Published by the International Center for Transitional Justice Printed in the United States of America © 2017 International Center for Transitional Justice. All rights reserved. No part of this book may be reproduced in any form without written permission from the publisher. The views expressed by the contributors to this volume are their own and do not necessarily reflect the views of the International Center for Transitional Justice or the institutions that provided financial support for this research project. Cover design and typesetting by Kerstin Vogdes Diehn Inside design by Julie Fry Cover photographs, clockwise from top left: Tunisian activists protest the Economic Recon- ciliation Bill presented to parliament that would offer a path for corrupt Ben Ali-era officials and business people to legalize their stolen assets and secure a form of amnesty, July 15, 2016 (Lina Ben Mhenni); Kenyan President Mwai Kibaki, center left, and opposition leader Raila Odinga, center right, sign a power-sharing agreement in Nairobi, Kenya, after weeks of bitter negotiations on how to end the country’s deadly post-election crisis, February 28, 2008 (AP Photo/Jerome Delay); The elderly, women and children, and minority ethnic groups or castes can be particularly vulnerable following crises such the Nepal earthquakes, and growing food insecurity can impact heavily on these groups, June 3, 2015 (©FAO/Nepal); Revolution- ary Armed Forces of Colombia (FARC) rebels stand in formation during a practice ceremony for the Boliviarian Movement, a new clandestine political party for the rebels, outside of San Vicente del Caguan in the FARC-controlled zone of Colombia, April 28, 2000 (AP Photo/ Scott Dalton). ISBN 978-0-9982829-0-9 Contents 7 Acknowledgements 8 Introduction Roger Duthie 40 CHAPTER 1 Institutional Gardening in Unsettled Times: Transitional Justice and Institutional Contexts Lars Waldorf 84 CHAPTER 2 Contending with the Past: Transitional Justice and Political Settlement Processes Christine Bell 116 CHAPTER 3 Transitional Justice in Post-Conflict Contexts: Opportunities and Challenges Rachel Kerr 140 CHAPTER 4 After Shocks: Exploring the Relationships between Transitional Justice and Resilience in Post-Conflict Societies Eric Wiebelhaus-Brahm 166 CHAPTER 5 Reflections on the Transformative Potential of Transitional Justice and the Nature of Social Change in Times of Transition Clara Sandoval 202 CHAPTER 6 Local Transitional Justice: How Changes in Conflict, Political Settlements, and Institutional Development Are Reshaping the Field Lisa Denney and Pilar Domingo 234 CHAPTER 7 Non-State Armed Groups in Transitional Justice Processes: Adapting to New Realities of Conflict Annyssa Bellal 258 CHAPTER 8 Transitional Justice in Conflict: Reflections on the Colombian Experience Rodrigo Uprimny Yepes and Nelson Camilo Sánchez 278 CHAPTER 9 The Contingent Role of Political Parties in Transitional Justice Processes Ken Opalo 302 CHAPTER 10 Reflections on the Presence and Absence of Religious Actors in Transitional Justice Processes: On Legitimacy and Accountability Ioana Cismas 344 CHAPTER 11 Labor Unions and Transitional Justice: An Exploratory Study on a Neglected Actor Eva Ottendörfer, Mariam Salehi, Irene Weipert-Fenner, and Jonas Wolff 370 CHAPTER 12 Transitional Justice and Development Aid to Fragile and Conflict-Affected States: Risks and Reforms Elena Baylis 405 Contributors Acknowledgements This edited volume presents the findings of a collaborative, multiyear research project conducted by the International Center for Transitional Justice. We are very thankful to Pablo de Greiff, former director of research at ICTJ, who con- ceived of the initial project, as well as Clara Ramírez-Barat, former senior research associate at ICTJ, who played an important role in the early imple- mentation of the project, the organization of several meetings, and the edito- rial process for a number of the book’s chapters. At ICTJ, we are very grateful to Meredith Barges for her careful editing and coordination of the publishing process; to Lisa Ferraro Parmelee, Pamela Hunt, and Emma Fishman for copy editing and editorial assistance; and to Anthony DiRosa and Shaina Wright who provided valuable support. ICTJ is extremely grateful to the Swiss Federal Department of Foreign Affairs, the Oak Foundation, the United States Institute of Peace, and the International Development Research Centre for the financial support that made this research project possible. We would like to sincerely thank the authors of the research papers com- missioned for the project: Elena Baylis, Christine Bell, Annyssa Bellal, Marie Breen-Smyth, Ioana Cismas, James Cohen, Lisa Denney, Pilar Domingo, Diego García-Sayán, Gabor Halmai, Susanne Karstedt, George Kegoro, Rachel Kerr, Anja Mihr, Ken Opalo, Eva Ottendörfer, Jonatan Rodas, Mariam Salehi, Nelson Camilo Sánchez, Clara Sandoval, Rodrigo Uprimny Yepes, Lars Waldorf, Eric Wiebelhaus-Brahm, Irene Weipert-Fenner, Paul D. Williams, and Jonas Wolff. Twelve of the commissioned papers appear as chapters in this volume, but we are very grateful to all contributors for their valuable research. We would also like to thank the participants in multiple project meetings at which the research design and draft studies were discussed: Mohamed Abdel Dayem, Bernardo Arévalo de León, Suliman Baldo, Craig Calhoun, Ruben Caranza, Doug Cassell, Elizabeth Cousens, Eduardo González, Priscilla Hayner, Stathis Kalyvas, Habib Nassar, Youssef Mahmoud, Marcie Mersky, Kelli Muddell, Anna Myriam Roccatello, Serge Rumin, Ghassan Salamé, Monica Serrano, Navsharan Singh, Dawit Toga, Luc van de Goor, Leslie Vinjamuri, Michael Woolcock, and Catherine Woollard. 7 Introduction Roger Duthie1 The contexts in which societies attempt to address legacies of massive human rights violations are integral to the concept of transitional justice. Such con- texts vary widely. They can include ongoing conflicts, post-authoritarian tran- sitions, post-conflict transitions, and post-transitional periods. They can also differ in terms of institutional and political fragility as well as economic and social development. Broad policy objectives in such contexts can include rule- of-law promotion, conflict resolution, peacebuilding, the vindication and pro- tection of human rights, democratization, development, and social change. As the term suggests, however, the context in which a society undertakes transi- tional justice processes is usually to some degree transitional. This is an impor- tant factor because transitions can create opportunities for addressing past injustice, while at the same time they retain continuities with the past that can pose constraints or obstacles for doing so. The fact that context varies from setting to setting is significant because it affects the objectives of transitional justice efforts, as well as the processes through which they develop, which in turn affect the specific responses or measures that are most appropriate and feasible in each situation. Processes here refer to the different ways in which ideas and movements develop, promote, and coalesce in demands for account- ability, acknowledgement, and reform. Transitional justice efforts are often criticized as being understood and implemented as a template or a toolkit—that is, a narrow set of measures to be applied uniformly wherever widespread human rights violations have occurred.2 Policymakers and practitioners are therefore frequently called on to take context into greater consideration when assessing, advocating, shaping, and designing transitional justice processes. To assist them, this edited volume examines some of the main contextual factors that have significant implica- tions for responding to massive human rights violations: the institutional con- text, the nature of conflict and violence, the political context, and underlying economic and social structural problems. It presents the findings of a multi- year research project by the International Center for Transitional Justice on 9 DUTHIE the challenges and opportunities of responding to serious and massive human rights violations in different—and difficult—settings.3 Transitions in Argentina and Chile played out differently from those in Guatemala and El Salvador, just as the transition in South Africa since the end of apartheid did from those in Eastern and Central Europe. Transitions in Liberia and Sierra Leone differed from those in Nepal and Sri Lanka, just as they have from that in Tunisia and those potentially to come in Syria and Libya.