Gendered subjects of transitional justice.

• Author: Franke, Katherine M.

Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation, and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and future. This is no easy task, and shortcuts, both in dealing with the past and in building a just future, often appear irresistible. In Martha Minow's words, justice at this juncture amounts to replacing "violence with words and terror with fairness," (1) and steering a "path between too much memory and too much forgetting." (2)

The template of mechanisms available to undertake transitional justice are familiar to those who work in this field: prosecutions (domestic and international); truth and reconciliation commissions; lustration (the shaming and banning of perpetrators from public office); public access to police, military and other governmental records; public apology; public memorials; reburial of victims; compensation or reparation to victims and/or their families (in the form of money, land, or other resources); literary and historical writing; and blanket or individualized amnesty. In most cases, justice demands the deployment of a number of these tools, given that no one of them can adequately address and repair the injuries of the past nor chart a fully just future. Transitional justice will always be both incomplete and messy.

Justice is, of course, a very complex ethical, legal, institutional, and emotional problem, and its aspirations are rendered all the more difficult in transitional societies that are struggling with unstable governance, security, and economic institutions. To better illuminate these complexities, particularly as they relate to gender, I will borrow a framing device from political scientist Nancy Fraser. In Justice Interruptus, Fraser discusses one of the key dilemmas of justice projects: whether they should be fundamentally committed to redistribution or recognition. (3) Justice as redistribution is a familiar concept entailing the reordering of material and symbolic resources based upon a particular account of culpability, desert, accountability, injury, and fairness. These transitional justice projects could be primarily committed to redistributing money or land (in the form of reparations), but they could also redistribute shame (from the injured to the injurer) or power--resources that might be best understood as symbolic and cultural. By contrast, justice projects that emphasize recognition seek the establishment of official bodies, be they courts, tribunals, officially appointed commissions, or boards of inquest, whose task it is to find facts, and, more importantly, recognize, acknowledge, or call up the identities of the parties and acts that are brought to their official attention. The facts to be recognized may be culpability, harm, injury, or causation. Individual identities to be recognized would be that of criminal, victim, conspirator, or rights-holder, while the identity of particular criminal practices may be recognized as well, such as genocidal, gender, or ethnic-based crimes.

Of course, a preference for redistribution over recognition, or vice versa, does not tell you which of the tools of transitional justice to prefer. Courts can both recognize and redistribute, as can truth and reconciliation commissions that possess the power to order reparations. However, I think it fair to say that while transitional justice mechanisms can undertake either or both justice as redistribution and justice as recognition, at the end of the day most of them end up accomplishing more recognition than redistribution. I will elaborate this conclusion at greater length below, but I offer it up front for consideration in order to ask an allied question: what are the particular benefits of recognition-based justice projects for the advancement of the interests of women and of gendered justice? Given that I do not think existing contexts of transitional justice have delivered much in the way of redistributive justice, I do not regard it a less useful exercise to compare and then rank recognition and redistribution. So too, under ideal circumstances, I would expect that we would pursue both of these forms of justice simultaneously.

If the platforms of transitional justice were to be evaluated with respect to their structural capacity to deliver "justice," surely formal, legal prosecutions of those responsible for the injustice of the past rank high in most people's estimation. To be sure, the injustice that is of concern in this transitional project is largely limited to violations of human rights, leaving to other for a the problem of less heinous conduct. Law professor Diane Orentlicher is among a group of scholars who has staked out the most emphatic position with respect to the importance of the use of prosecutions in transitional justice, arguing that international law imposes a duty to prosecute a prior regime's human rights violations, (4) and others have argued that prosecution is the optimal method of addressing past atrocities. (5) These scholars argue that the "ethically defensible treatment of past wrongs requires that those individuals and groups responsible for past crimes be held accountable and receive appropriate sanctions or punishment," (6) and that prosecution "makes possible the sort of retribution seen by most societies as an appropriate communal response to criminal conduct." (7)

Others have criticized the exaltation of the normative value of prosecutions in the project of transitional justice. After all, the underlying assumption of these prosecutions is that gross violations of human rights are crimes. Miriam Aukerman has offered a very thoughtful critique of Orentlicher and her colleagues, asking whether ordinary crime is really an

appropriate analogy for massive human rights atrocities, what Kant called 'radical evil?' ... Yet are genocide and ethnic cleansing really just more egregious versions of premeditated murder? ... Or are such atrocities qualitatively different from ordinary crime because of the number of victims involved and because they are typically undertaken or at least countenanced by state or quasi-state actors for political reasons? (8) Without resolving this debate here, it is worth exploring just what prosecutions can deliver in terms of transitional justice, particularly with respect to gender-based violations. I ask this question here in relation to what has happened in the messy world we inhabit, rather than what might occur in an ideal world of unlimited resources and stable legal institutions. Of course, sexual violence against women during times of war and social upheaval is an old story, but until quite recently the masculinity of international humanitarian law was unable to appreciate how atrocities committed against women because they are women might amount to a violation of international humanitarian legal norms. Traditionally, rape has not been treated as a grave breach or as the actus reus of genocide, but rather as a crime against dignity and honor. (9) Indeed, the masculinity of international law has prompted feminist scholars and activists to ask provocatively whether women were human. (10) Rhonda Copelon, among others, has argued vehemently that rape of women be treated under international humanitarian law not merely as inhumane, but "with the same fervor as are the war crimes which happen routinely to men." (11) The last ten years of transitional justice jurisprudence has radically altered the treatment of gendered violence under international law. (12) The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) have both issued paradigm-shifting criminal indictments and convictions of men in Rwanda and the former Yugoslavia on the grounds that rape and other forms of sexual and gender violence be recognized as among the most serious offenses over which these tribunals have jurisdiction. The cases have recognized that rape and other sexual violence can constitute genocide, torture, and other inhumane acts. (13) The ICTY's Prosecutor's office has committed substantial resources to thinking through the meaning and manner of prosecuting sexual...