Political violence and gender during times of transition.

• Author: Ni Aolain, Fionnuala

At the heart of transitional justice discourse is an ongoing conversation about accountability for human rights violations that occur in a context of regime repression or violent conflict. That accountability dialogue has generally been preoccupied with attempts to define the forms of political violence that should be addressed by various formal and informal mechanisms, such as trials and other truth-seeking processes. This Article will examine the multiple ways in which transitional justice processes have conceptualized political violence, and how that maps onto a gendered understanding of violence experiences and accountability mechanisms in a transitional context.

In general, greater scrutiny of the neutrality of the transitional project has led to a more critical appraisal of the gendered aspects of transition. (1) The premise of this inquiry is that accepted discourses in transitional societies surrounding the nature and form of political violence, as well as the legal accounting for such violence, has been deeply gendered. Specific to this inquiry is the characterization of certain kinds of violent action as linked to the conflict and/or the repressive regime, and the exclusion of other forms of violence from within the definitional boundary. Defining political violence often becomes a contest between opposing political factions as to whose acts of violence are to be defined as "political" (and thus justifiable) and whose are not (and remain subject to ordinary criminal sanction).

Further, underpinning this approach is the understanding that peace processes and processes of political change which prompt or underlie transitional moment(s) are profoundly gendered. For example, "while women have often been at the forefront of peace initiatives throughout a conflict," men "predominantly, if not exclusively," negotiate peace agreements. (2) The conduct of violence and war is predominantly male, leading to a male bias in negotiations. (3) This continues today, despite the Platform for Action that emerged from the Fourth World Conference on Women in Beijing in 1995, which asserted that, "in addressing armed or other conflicts, an active and visible policy of mainstreaming a gender perspective into all policies and programmes should be promoted so that before decisions are taken an analysis is made of the effects on women and men, respectively." (4) The Beijing Platform approach has been confirmed by the highly visible U.N. Security Council Resolution 1325, which "urges [U.N.] Member States to ensure increased representation of women at all decision-making levels ... for the prevention, management and resolution of conflict." (5) Its requirements are framed by the acknowledgement that women play an important role in "the prevention and resolution of conflict and in peace-building," and that women and children "constitute the vast majority of those affected by armed conflict." (6)

This Article reviews the relationship between the legal and political aspects of political violence from the starting point that the gendered nature of transition is positively correlated to the violent masculinities that dominate in times of conflict. Hence, the forms of accountability sought in the post-conflict/post-regime environment reflect the gender biases that manifest in the prior context. This Article broadly argues that these biases are problematic as a matter of equality and accountability. They result in an accountability approach that stops short of naming certain forms of violence as violations. (7) The effect of this approach is pronounced for women; the violence experienced by women is generally deemed irrelevant to or outside the frame of accountability for many post-conflict and post-regime societies. (8)

Moreover, the Article asserts that, when violence is understood in specific and narrow ways, it affects broader understandings of which concerns become issues for negotiation and mediation purposes. Arguably, the dual effect of such exclusions is that the scope of problems to be resolved is limited by a male conception of conflict and its biased effects revolving around allocations of power and territory. This limited scope can have substantial effects on the reorganization of political and legal power, and their institutional manifestations, that occurs in transitional contexts, whether by peace treaty negotiation, constitutional settlement, or informal political power change. In these contexts, the matters that are framed as central issues for resolution in transitional negotiations may only peripherally impact many women's day-to-day lives. Negotiators may leave untouched socioeconomic exclusions (which may themselves constitute violent experiences for women), and other forms of violence, which women may not see as compartmentalised into "conflict" and "non-conflict." Rather, women may experience forms of violence on a continuum, only partially addressed, or not addressed at all, by cease-fires. (9)

This Article is divided into four parts. Part I examines what is generally understood by the term "political violence." Part II explores the forms of violence that women experience during conflict and/or regime repression with an emphasis on the relationship between the conflict and/or regime and women's experiences of violence. Part III briefly outlines the forms of harms that are given hierarchical significance in truth-telling processes, and the resulting legal and political significance. In conclusion, the Article reflects upon the nature of forms of violence that shape the responses of transitional justice discourse and to which it in turn is responsive.

1. WHAT DO WE MEAN BY THE TERM "POLITICAL VIOLENCE"?

   Political violence is an extremely broad and multifaceted term. It is also an "essentially contested concept," (10) with boundaries and meanings that shift depending on cultural and community-specific circumstances. This section will explore some of the orthodox explanations of the term and the interface of these understandings with transitional justice discourse.

   1. Definitional Problems

      As a strict matter of academic definition, the concept of political violence is subject to ongoing and intensive interpretation. The term has been defined in a number of ways and a concrete, universal definition remains elusive. (11) However, there are some general markers that can be used to classify the term. Hibbs has classified political violence as behavior that is (1) anti-system in character, (2) has political significance, and (3) involves collective or "mass" activity. (12) This includes, but is not limited to, incidents of rioting, armed insurgency, and assassinations performed by groups rather than individuals unconnected to a group. In his seminal work on political violence, Ted Robert Gurr brings attention to the definitional distinctions between types of violence labelled "physical," typified by the use of force, and "structural," characterized by more general patterns of denial. (13)

      By and large, the discourses concerning political violence have been focused on state responses to violent actions that threaten, or seem to threaten, state hegemony. Responses to such violence are usually motivated by--and thus strongly correlated with--the level of threat acceptable to maintain regime control relative to the violence experienced (or perceived to be experienced). (14) Orthodox discourses about political violence include violence between non-state actors (e.g., in-fighting between discrete populations within a state). While such violence may not directly undermine the legitimacy of the state, it may contribute to general intrastate instability.

      The centrality of the use of force to maintain or seek political power is common to both violent conflict and regime repression. In both contexts, the validity of force is invariably challenged. Authority (moral as well as legal) for deploying violence to achieve political ends inevitably constitutes a central aspect of the battle for political legitimacy between opposing parties. Language and definitional constructs are utilized by all parties in the battle for political authority to justify their own use of violence and delegitimize their opponent's use of violence." (15) Once the conflict ends, or the regime is ousted, this definitional contest continues and is central to supporting and/or opposing the validity of the new order. Hence, definitions of what acts constitute political violence are critical to the regime change/conflict's end because certain violent acts gain political legitimacy by inclusion in the definitional category. Such categorization also serves as post facto justification for other acts taken pre-transition, thereby bolstering political placement and influence during the transitional period. Practically, it is of enormous significance when the political violence category is the starting point for the legal discussions around which kinds of harmful acts are to be subject to legal process, and which, by virtue of their acceptable political status, will be excluded from the possibility of criminal sanction in the accountability mechanisms that may follow political change. As this Article explores, this complex range of vested interests associated with the political violence category has significant influence on the exclusion of harms to women from its definition.

   2. The Definition of Terrorism

      In all of this, the contemporary debates about the legitimate use of violence to force political change within states, particularly those that are undemocratic or unrepresentative, have been muddied by the parallel nexus of violent terrorist tactics, in addition to many of the definitional markers identified above. This is most apparent in debates around legitimacy for the use of violence and the characterization of the legal status of combatants. In this debate, political and legal legitimacy justifying the use of violence is key and the terrain is...