Gender and Transitional Justice
Gender and Transitional Justice
- Maria Martin de AlmagroMaria Martin de AlmagroUniversity of Ghent
- and Philipp SchulzPhilipp SchulzInstitute for Intercultural and International Studies, University of Bremen
Transitional justice (TJ) refers to a set of measures and processes that deal with the legacies of human rights abuses and violent pasts, and that seek to aid societies transitioning from violence and conflict toward a more just and peaceful future. Much like the study of armed conflict and peacebuilding more broadly, the study and practice of transitional justice was traditionally silent on gender. Historically, gendered conflict-related experiences and harms have not been adequately addressed by most transitional justice mechanisms, and women in particular have been excluded from the design, conceptualization, and implementation of many TJ processes globally. While political violence perpetrated against men remained at the center of TJ concerns, a whole catalogue of gendered human rights abuses perpetrated primarily against women has largely remained at the peripheries of dominant TJ debates and interventions.
Catalyzed by political developments at the United Nations within the realm of the Women, Peace, and Security (WPS) agenda and by increasing attention to crimes of sexual violence by the International Criminal Tribunal for Rwanda (ICTR) and the former Yugoslavia (ICTY), however, the focus in the 2000s has been radically altered to include the treatment of gender in transitional contexts. As such, considerations around gender and sex have increasingly gained traction in TJ scholarship and praxis, to the extent that different justice instruments now seek to engage with gendered harms in diverse ways. Against this background, to the authors review this growing engagement with gender and transitional justice, offering a broad and holistic overview of legal and political developments, emerging trends, and persistent gaps in incorporating gender into the study and practice of TJ. The authors show how gender has been operationalized in relation to different TJ instruments, but the authors also unearth resounding feminist critiques about the ways in which justice is approached, as well as how gender is often conceptualized in limited and exclusionary terms. To this end, the authors emphasize the need for a more sustained and inclusive engagement with gender in TJ settings, drawing on intersectional, queer, and decolonial perspectives to ultimately address the variety of gendered conflict-related experiences in (post)conflict and transitional settings.
- Conflict Studies
- Human Rights
- Politics and Sexuality and Gender
Gender and Transitional Justice: An Overview
In July 2020, the United Nation’s Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of nonrecurrence issued a report on gender perspectives in transitional justice (TJ), which “considers multiple aspects of adopting a gender perspective in transitional justice processes” (United Nation’s Special Rapporteur, 2020, p. 4). This report came at a time when there had been much progress in gendering peacebuilding and transitional justice work (Weber, 2021), but also when gender sensitivity in transitional justice work still remained elusive (Ní Aoláin, 2019) and numerous gendered blind spots persisted in delivering justice for various gendered conflict-related harms and experiences.
Much like the study of armed conflict more broadly (Sjoberg, 2016), the field of transitional justice was traditionally silent on gender (Buckley-Zistel & Stanley, 2012; O’Rourke, 2013), leading feminist scholars to pose the question of “where are women, where is gender and where is feminism in transitional justice?” (Bell & O’Rourke, 2007, p. 23).
Partly in response to these questions, there has been a radical shift in viewing the role of gender in transitional justice, which has witnessed an increasing feminist curiosity (Enloe, 2004) about gender justice in postconflict transitions (Buckley-Zistel & Stanley, 2012). As such, considerations around gender and sex have increasingly gained traction in the growing TJ literature, to the extent that as of the early 21st century, gender constitutes “a burgeoning focus of investigation within TJ scholarship and practice globally” (O’Rourke, 2017, p. 117). For one, considering gender is important for participation and representation (O’Rourke, 2013) in terms of ensuring equal participation and involvement of men, women, and persons with diverse sexual orientations, gender identities, and expressions and sex characteristics (SOGIESC) in the design and implementation of these processes—for instance, as active protagonists and beneficiaries but also as witnesses. At the same time, incorporating gender lenses and perspectives is crucial for broadening conceptions of gender, peace, and security (Rees & Chinkin, 2015) and the types of violence addressed by different TJ processes—including, for instance, gendered socioeconomic harms (Lai, 2020) or gender-based violence (Aroussi, 2011). In particular, women’s movements around the world have led important efforts to ensure that gender justice is put at the center of political, legal, and humanitarian agendas of transitional justice (Bell & O’Rourke, 2007, p. 24); that sexual violence is considered a war crime (Aroussi, 2011); and that transitional justice also addresses social, economic, and cultural rights, as well as collective rights to socioeconomic development (Roht-Arriaza & Mariezcurrena, 2006). Collective reparations are based on a redistribution of resources and wealth to the most marginalized, and the concept extends the definition of “victims” not only to include those physically affected but to compensate for the social effects of war, such as hunger, disease, or forced displacement to which women are particularly vulnerable. In policy terms, much of this engagement with gender and transitional justice unfolds within the realm of the U.N. Women, Peace, and Security Agenda (WPS), spearheaded by United Nations Security Council Resolution 1325, which, inter alia, focuses on access to justice, the rule of law, and the investigation and prosecution of wartime sexual violence (Martin de Almagro, 2017).
Yet, despite this increasing engagement with gender, Fionnuala Ní Aoláin has reminded us that gender lenses and a “feminist presence in transitional justice is complex, multilayered and still in the process of engagement”(Ní Aoláin, 2012, p. 205). As such, 15 years after Bell and O’Rourke’s call for feminist theorizing in TJ, “gender parity remains elusive in transitional justice implementation” (Ní Aoláin, 2019, p. 1), and numerous gendered blind spots persist. As such, various gendered experiences remain largely unaccounted for in the implementation and practice of dealing with the past, and existing TJ processes across the globe have largely fallen short in advancing actual transformations for women. In particular, structural forms of gender-based violence and discrimination, rooted in patriarchal value systems, need to be engaged with more comprehensively by TJ processes to continue to address violence across time and space, spanning from conflict to peace and beyond (Cockburn, 2008). At the same time, an engagement with gender in transitional justice must be broader and more inclusive, moving beyond a singular focus on women (and on sexual violence against women, in particular) to also include masculinities and queer perspectives.
The objective of this article is to offer a concise yet comprehensive overview of developments and debates in scholarship and policymaking concerning gender and transitional justice. As such, the article aims to provide a state-of-the-field assessment of how an incorporation of gender into transitional justice processes and debates has unfolded since 2000, and what gendered blind spots, gaps, and avenues for further engagement nevertheless persist. To this end, the section titled “Historical, Political, and Legal Advances in Transitional Gender Justice” will discuss the key historical and legal advances in transitional gender justice in a post-Cold War context. The section titled “Gendering Transitional Justice Instruments” then outlines how different transitional justice mechanisms have tried to deal with gender specific harms and women’s experiences from war, in retributive justice, truth seeking, and reparation processes. Based on this overview, the section titled “Reparations” offers dominant feminist critiques of these advances to transform women’s lives before moving on to an assessment of persisting gendered blind spots with regard to masculinities and queer perspectives in TJ. The article concludes by proposing some new avenues and strategies for transformative transitional gender justice.
Historical, Political, and Legal Advances in Transitional Gender Justice
Broadly referring “to the set of measures implemented [. . .] to deal with the legacies of massive human rights abuses” (de Greiff, 2012, p. 34) in the aftermath of armed conflicts or authoritarian regimes, the study and implementation of transitional justice (TJ) has significantly expanded and globalized since the beginning of the 21st century (Teitel, 2015). Transitional justice mechanisms and institutions thereby seek to redress past wrongs, institutionalize the rule of law, and construct new legal and normative frameworks in postconflict contexts or in societies that have dealt with occupation or authoritarian regimes so as to prevent violent conflict from reemerging. Traditionally, transitional justice measures are a set of judicial and nonjudicial instruments and mechanisms, such as trials, truth commissions, lustration, or memorials. The aims of TJ are thereby often linked to the normative objectives of democratization, nation-building, and the primacy of the rule of law but also fostering a free market economy (Rees & Chinkin, 2015, p. 1012). This approach is embedded within a liberal peacebuilding model (Sriram, 2014), which often unfolds through a primary focus on civil and political rights placed over an engagement with socioeconomic and cultural rights (Hamber, 2016).
While there is not a predetermined set of standards on how and where transitional justice should be applied, the practice of TJ has frequently been critiqued for following a standardized toolkit or “one-size-fit-all” approach (Sharp, 2013). At the same time, various scholars have emphasized that TJ mechanisms and their implementation must vary depending on geographical contexts (Teitel, 2003, p. 76), hence requiring a localization and contextualization of TJ processes (Shaw & Waldorf, 2010). These dynamics in many ways also apply to the ways in which gender perspectives in TJ are conceptualized and understood, which often follow a standardized procedure but neglect the locally-contingent meanings of “justice” and “gender” in different geopolitical regions (Schulz, 2019).
While many of the foundations of TJ date back to the post-World War II Tokyo and the Nuremberg criminal tribunals, the first time the actual concept of TJ was used was in the context of the collapse of the Soviet Union in the late 1980s and the reordering of geopolitical dynamics in Africa, South and Central America, and Eastern Europe (Bell, 2009, p. 7). Whereas certain countries descended to civil wars, particularly on the African continent, others started transitioning from authoritarian to democratic rule. This is important because since then, there has been a normative assumption that transitional justice needs to ensure the basis of a peaceful transition toward Western-like democracies based on liberal individualism (Arthur, 2009; Rees & Chinkin, 2015, p. 1212; Teitel, 2003, p. 75). This historical origin has conditioned the horizon of possibilities of what justice means and which kind of measures are necessary to ensure it. While prosecutions, truth-telling commissions, reparations, and institutional reform of authoritarian and centralized states were deemed necessary, distributive socioeconomic justice was not (Arthur, 2009, p. 326). This liberal notion of justice has gendered and gendering consequences, as the discussion to unfold throughout this article demonstrates.
Over the decades, then, the study, praxis, and implementation of transitional justice in many ways experienced its own transition (McEvoy, 2007), emerging from its initially exceptionalism origins toward becoming a standardized, institutionalized, and globalized practice (Teitel, 2015). As such, transitional justice expanded to include a whole variety of processes, measures, and instruments, and to be applied to a wide range of violence-affected situations. Not only the points of departure, however, but also the end-goals of transitional justice processes are increasingly recognized as being more diverse than initially assumed, and transitional justice has been increasingly emancipated from the bonds of the assumingly linear transition from war to peace (Sharp, 2013), which cannot live up to the complexities and nonlinearity of lived realities in times of violence, conflict, and peace (Hamber, 2008). As part of this expansion process, transitional justice has over the years also been increasingly localized (Shaw & Waldorf, 2010), turned its attention to (post)colonial dynamics (Bueno-Hansen, 2015) or to socioeconomic aspects (Lai, 2020), and has also become more attentive to the gender dynamics of political transitions (O’Rourke, 2013).
Gender and Transitional Justice
Historically, however, the experiences of women have not been adequately addressed by transitional justice mechanisms and processes. Women experience direct violence, such as sexual violence, domestic and sexual slavery, forced displacement, and forced marriage. They also have more difficulties rebuilding their lives after war because gender norms and traditional women’s societal roles make it difficult for women to access property, land, and jobs, as well as health and education services. Nevertheless, the gendered nature of direct and structural violence as well as different gendered experiences that men, women, and people with diverse gender identities faced during war have rarely been a concern of transitional justice projects (Fobear, 2014; Franke, 2006).
In terms of design and procedure, the first decades of transitional justice processes did not provide sufficient participation and representation of women and minorities (O’Rourke, 2017). This led to the reproduction of patriarchal logics and discourses about what transitional justice is for, and what human rights violations and crimes should be addressed and how (Ní Aoláin, 2012). While political violence most suffered by men has been at the center of transitional justice, the systemic violence most commonly experienced by women—such as poverty, internal displacement, lack of access to public infrastructure, and unequal access to land, employment, or education (Martin de Almagro & Ryan, 2019)—was not recognized or redressed (Ní Aoláin, 2009; Weber, 2021).
While much of an engagement with gender in transitional justice has taken place in scholarship evidenced through a growing body of literature (see Fobear, 2014; Franke, 2006; Ní Aoláin, 2012; O’Rourke, 2013), there are also legal, normative, and political developments that have addressed gender and transitional justice. Much of this policy engagement is unfolding within the realms of the United Nations Security Council and its mandate to maintain international peace and security, and specifically under the umbrella of the U.N. Women, Peace, and Security (WPS) framework (Martin de Almagro, 2017). As a result of intensive efforts by a transnational coalition of women’s movements and feminist organizations, the agenda specifically calls for increased representation of women in decision making at all levels in the prevention, management, and resolution of conflict; the protection of women’s rights in conflict; the prevention of violence against women in conflict; and the importance of gender-sensitive humanitarian assistance, relief, and recovery (Aroussi, 2011). Under this mandate, the WPS agenda also specifically engages with gender and transitional justice, which comprises a vast set of tools to fight against gender injustices (Martin de Almagro, 2017). For instance, United Nations Security Council Resolution (UNSCR) 1888 focused on access to justice; the rule of law, legal; and judicial reforms; investigations; and prosecutions specifically for victims of wartime sexual violence. UNSCR 2106 specifically asked to punish sexual violence in conflict, and UNSCR 2242 recommended “reparation for victims as appropriate” (United Nations Security Council, 2015, p. 7), while reminding that the Security Council can enact sanctions against those who commit conflict-related sexual violence. The Global Study on the Implementation of UNSCR 1325 also called on the United Nations and its member states to “prioritize the design and implementation of gender sensitive reparations programs with transformative impact” (UN Women, 2015, p. 124).
Similarly, the resolution of the U.N.’s Human Rights Council that in 2011 established the mandate of the Special Rapporteur on Truth, Justice, Reparation, and Guarantees of Non-Recurrence—through which much of the U.N.’s engagement with transitional justice unfolds—specifically referred to gender, emphasizing that the Special Rapporteur must integrate gender lenses throughout its work (see O’Rourke, 2017). Outside the realm of the United Nations, the monitoring Committee of the Convention and Elimination of All Forms of Violence Against Women (CEDAW) similarly developed normative guidance in gender and transitional justice. As Catherine O’Rourke observed, “the Committee’s General Recommendation Number 30 on the rights of women in conflict prevention, conflict and post-conflict situations calls on state parties to address transitional justice mechanisms as part of broader activities to ensure women’s access to justice” (O’Rourke, 2017, p. 125). However, the U.N. Special Rapporteur was only established in 2011, and the CEDAW general recommendation 30 was adopted in 2013, signaling how TJ as a matter of international peace and security in general, as well as attention to gender and TJ specifically, has become increasingly mainstreamed since the early 2010s.
Gendering Transitional Justice Instruments
As a result of these cumulative efforts, then, gender lenses have been increasingly incorporated into and applied to the different aspects, mechanisms, and instruments of transitional justice, as reviewed throughout this section, structured along retributive and criminal justice, truth-seeking efforts, reparations, and bottom-up TJ mechanisms.
Retributive Justice and Criminal Courts
Much of the engagement with gender in transitional justice unfolds within the context of criminal courts and tribunals, with an emphasis on responding to wartime sexual violence through criminal accountability and retributive justice (Aroussi, 2011; Campbell, 2004; Schulz & Kreft, 2022). This emphasis on criminal justice thereby mirrors larger trends in TJ, whereby criminal retribution and legal punishment still often are seen as ultimate responses to crimes (Fletcher & Weinstein, 2002).
Since the late 1990s and early 2000s, notable progress has been made toward an engagement with gender in international criminal law (Chappell, 2011). Progressive developments by the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR) in the 1990s contributed toward the recognition of crimes of rape and sexual violence as constitutive of war crimes, crimes against humanity, and genocide (Mibenge, 2013). Throughout the literature, these two ad hoc tribunals are generally credited with the responsibility for the contemporary evolution of jurisprudence on conflict-related sexual violence (Haffajee, 2006), and are seen as having established landmark and precedence cases concerning sexual violence.
These developments also set the precedent for other hybrid tribunals—such as the Special Courts for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC)—as well as the permanent International Criminal Court (ICC), which has heard several cases that include charges of sexual and gender-based violence (SGBV; Chappell, 2014). Since 2014, prosecuting gender-based violence (GBV) has been among the ICC’s Office of the Prosecutor’s (OTP) key strategic goals, reflected in the “Policy Paper on Sexual and Gender-Based Crimes.” Since then, as of 2018, 16 out of 23 cases pending at the International Criminal Court have included charges of SGBV. This process of ensuring accountability for conflict-related sexual violence (CRSV) is important, and has “contributed toward documenting the patterns and dynamics of sexual violence” (Schulz & Kreft, 2022, p. 7) across contexts, in addition to contributing to the development of international jurisprudence on sexual violence. At the same time, testifying in a court of law about their experiences of sexual abuse may for some survivors be healing, empowering, and a “cathartic process that equips them with a sense of agency and enables them to articulate their voices” (Schulz & Kreft, 2022, p. 13; see also Mertus, 2004).
Yet, despite growing attention, the track record of actually delivering justice for sexual violence survivors remains limited. And while the ICC’s conception of SGBV has broadened over the years to also include crimes of forced marriage and pregnancy alongside sexual torture or crimes of rape, the emphasis remains on sexual violence over other forms of gendered violence and discrimination. What is more, despite only a handful of exceptions, most proceedings involving sexual violence at international courts have focused on women survivors, but have tended to sideline sexual violence against men or against persons with diverse SOGIESC (Schulz, 2020). Influenced by and in tandem with these developments in the international criminal justice arena, and in the interest of complementarity, there also is a growing collection of cases concerning CRSV at national and domestic courts—including for instance the Bosnian War Crimes Chamber, or courts in Guatemala, El Salvador, or the Democratic Republic of Congo (Seelinger, 2020).
Despite much of this progress of investigating and prosecuting crimes of sexual violence, however, the existing caseload of successful convictions remains limited at best. This in many ways mirrors the “justice gap” for SGBV that persists not only in (post)conflict settings but more widely across time and space (McGlynn & Westmarland, 2019). In addition, feminist scholars in particular have identified various legal, political, technical, and gendered shortcomings of criminal proceedings. As such, Houge and Lohne (2017) have cautioned that treating CRSV simply as “a problem of law” overlooks more structurally-engrained forms of violence and discrimination, as well as potential alternative justice conceptions and mechanisms. A growing body of scholarship has also identified more practical limitations, evidencing victims’ and survivors’ dissatisfaction with criminal justice processes (Henry, 2009). This body of work takes note of the fact that many survivors feel “footnoted” in the proceedings, silenced, deprived of any agency (Mertus, 2004), or revictimized (Franke, 2006; see Schulz & Kreft, 2022). Focused on the ICTY, Mertus showed that women’s agency during criminal proceedings was severely stunted, and that survivors of wartime rape who participated in criminal trials often felt “like [they were] shouting from the bottom of a well” (Mertus, 2004, p. 113). Drawing on an analysis of the SCSL, Kelsall and Stepakoff (2007) similarly showed how women who participated in the trials “were prohibited from speaking about the principal manner in which they were victimized [sexually] during the conflict” (p. 365), and how as a result, women’s experiences were removed from the Court’s records (see Mibenge, 2013). As such, “experience[s] of giving testimony [are] likely to be mixed” (Henry, 2009, p. 114), leading feminist scholars to question whether criminal proceedings constitute adequate means to deliver accountability for GBV (Henry, 2009; Mertus, 2004; Otto, 2009).
Truth and Reconciliation Commissions
As an alternative to some of these structural limitations with regards to criminal justice, an emphasis on restorative justice, often in the form of Truth and Reconciliation Commissions (TRCs), has gained growing popularity over the decades—perhaps most notably in South Africa as well as across Latin America. In their broadest terms, truth (and reconciliation) commissions are entities that seek to establish facts, causes, and impacts of past human rights violations with a focus on victims’ and survivors’ testimonies, thereby seeking to provide recognition of harm and suffering.
The first Truth Commissions in Argentina, Peru, Guatemala, and South Africa did not include gendered harms in their terms of reference; but were instead focused on political crimes to the exclusion of ordinary and structural violence. In these proceedings, women’s testimonies were primarily limited as witnesses of harms committed between men. This had consequences not only for the lack of recognition of violence against women, but also for the ensuing policy recommendations and reparations identified as necessary in the TRC reports. As Sanne Weber (2021) noted, “Truth Commissions have historically tended to leave out women’s particular conflict experiences” (p. 214).
The South African Truth and Reconciliation Commission (1996–2003), established to deal with human rights violations of the apartheid system, was the first to adopt ad hoc gender-sensitive strategies such as holding special women’s hearings, creating gender-sensitive statement-taking protocols, and adding a chapter on women in the final report (Fiske, 2019). After sustained advocacy from key women activists and even though it had not been part of the original plan, the Peru Truth and Reconciliation Commission (2001–2003) established a specific Gender Unit in charge of examining gendered and sexual patterns of violence, training staff on gender-sensitive approaches to truth and reconciliation, and leading a public hearing on women’s human rights. The Commission’s final report devoted two individual chapters to a gendered analysis of the conflict and the use of sexual violence against women. Nevertheless, the lack of an appropriate budget to support the activities of the Gender Unit prevented it from achieving much and many Peruvian activists saw it as a lost chance for a more systematic and transformative approach for enhancing women’s access to justice (Nesiah et al., 2006).
Later TRCs included a focus on gender in their mandates and tried to actively understand how violence and oppression are gendered (Bell & O’Rourke, 2007, p. 28). In particular, the Truth Commissions of Sierra Leone (2002–2004) and East Timor (2002–2005) are regarded as best practices. Their reports in 2004 and 2005 included a stand-alone chapter on gender and sexual violence, as well as recommendations for reparations (Nesiah et al., 2006). Furthermore, the Sierra Leone TRC’s procedures for engagement with women were also gender-sensitive. First, it proactively looked for women testimonies, offering material support and counseling for those willing to testify. Second, women could choose whether to provide written or oral testimony and whether to testify at an open or closed hearing. Third, the Commission trained specialized women statement takers to work with sexual violence victims. In general terms, Truth Commissions have been criticized for overtly focusing on sexual violence, and for not taking into consideration how women often face the socioeconomic consequences of conflicts. In the context of the Sierra Leone TRC (SLTRC), however, sexual violence and abuse were the terms of reference under which women could testify as victims, and even though the SLTRC was determined “to capture the experiences of both women and girls in respect of sexual violence, as well as their complete gendered experiences at a political, legal, health and social welfare level” (Sierra Leone Truth and Reconciliation Commission, 2004, p. 87), the commission’s final report focused mainly on rape and other sexual violence crimes committed against women during the conflict. As such, both truth commissions and courts have been criticized for their singled-issue focus on sexual violence at the expense of the complex nature of gender violence in conflict-affected settings.
In addition to these formalized and institutionalized truth commissions, more informal and/or grassroots-level, truth-seeking, and historical memory processes have evolved across a number of conflicts, including most prominently the Gacaca courts in Rwanda (Bronéus, 2008), but also Colombia’s National Centre for Historical Memory, and the National Memory and Peace Documentation Centre (NMPDC) in Uganda. These and similar efforts across contexts document and preserve conflict-related experiences and enable survivors to share their experiences in often more informal processes, thereby at times offering more space for diverse stories. At the same time, these informal efforts are also often structured around heteronormative conceptions of gender, thereby restricting the space of what experiences can be openly talked about, and have also been experienced as retraumatizing and threatening by women giving testimony (Bronéus, 2008). This mirrors shortcomings of criminal tribunals as discussed in the subsection “Retributive Justice and Criminal Courts,” and of bottom-up transitional justice mechanisms as discussed in the section “Reparations.”
Reparations are typically portrayed to be among the most victim-centric elements of transitional justice (Hamber, 2008). As emphasized by de Greif, reparations provide financial or other material compensations, such as property restitution as a form of corrective justice, obliging the wrongdoer to provide goods to the victim so that the latter find themselves in the original position before the harm (de Greiff, 2008, p. 435). In practice and implementation, the U.N. Basic Principles and Guidelines on the Right to a Remedy and Reparation (2005) lists five components of reparations: (a) restitution, (b) compensation, (c) rehabilitation (including access to medical and psychological care), (d) satisfaction and, (e) guarantees of nonrepetition. Importantly, reparations not only imply material gains for survivors, but crucially “can be profoundly meaningful to victims or survivors at a psychological level” (Hamber, 2008, p. 8). In this reading, reparations can be individual and/or collective, and material and/or symbolic (Hamber & Palmary, 2009) as well as prospective and retrospective.
For the most part, however, reparations programs are not “designed with an explicit gender dimension in mind” (Rubio-Marín et al., 2006, p. 23), nor have they “focused on the forms of victimization that women are more commonly subject to,” including forms of CRSV. As Ní Aoláin et al. (2015) observed, global discussions aimed at ensuring accountability and ending impunity for CRSV have largely neglected and marginalized reparations.
However, reparations have been increasingly linked to sexual and gender-based violence. In March 2007, international legal and gender experts and women survivors of sexual violence met in Nairobi (Kenya) to draft the Nairobi Declaration on the Right of Women and Girls to a Remedy and Reparation. The declaration is key because it sought to redefine reparations from a gendered perspective that makes visible the linkages between direct and structural violence. The declaration had two core principles: First, reparations should be transformative, go to the root causes of gender violence, and “must go above and beyond the immediate reasons and consequences of the crimes and violations; they must address structural inequalities that negatively shape women’s and girls’ lives” (Nairobi Declaration, supra n 3, Principle 3[h]). The second core principle is the participation and involvement of women at all stages of the planning, design, and implementation of reparations programs because the involvement of women in the reform of social structures will also lead to recognition and to political empowerment.
This emphasis on structural discrimination and transformation thereby speaks to some conceptual shortcomings of reparations, as well as a recent emphasis on transformational reparations within a broader shift from transitional to transformative justice (Gready & Robins, 2019). As suggested by the Nairobi Declaration, a gender perspective indeed reveals that if reparative justice and reparations aim to quite literally repair conflict-related harms (Hamber, 2008), this can potentially translate into a reconstitution of an unequal preconflict status quo (see Ní Aoláin et al., 2015; Rubio-Marín & de Greiff, 2007). In transitional and (post)conflict settings, this frequently implies a reparation of and return to hetero-patriarchal societal structures, characterized by vast gendered inequalities and the systematic discrimination of women (Goldblatt & Meintjes, 2011). Rather than transforming unequal gendered and intersectional structures—which may have given rise to conflict and violence in the first place—reparations thus risk reinstating that status quo, thus reinstating patriarchy.
Since then, there has been growing attention within scholarship and policymaking (Duggan et al., 2008; Ní Aoláin et al., 2015; Walker, 2016)—evidenced for instance through the Global Survivors Fund, founded by the 2018 Nobel Peace Prize laureates Nadia Murad and Dr. Denis Mukwege, which seeks to enhance access to reparations for survivors of CRSV. In particular, the United Nations Secretary-General’s adoption of a Guidance Note on Reparations for Conflict-Related Sexual Violence (2014) marked an important turning point in the area of reparations for SGBV (Ní Aoláin et al., 2015). At the same time, several of the U.N. Security Council resolutions that make up the WPS agenda, such as Resolution 2122, repeatedly refer to reparations in response to gender-based violence.
This process of repairing preconflict structures specifically for women can often imply a return to an unequal gendered status quo ante and to inferior female subject positioning (Buckley-Zistel, 2013). Rubio-Marín and de Greiff (2007) therefore urged that reparations programs need to ensure that they do “not conform to or contribute to the entrenchment of pre-existing patterns of female land tenure, education or employment” (p. 325). Further, most reparations programs primarily concentrate on civil and political rights, at the expense of other violations, including socioeconomic rights, many of which are often heavily gendered (Rubio-Marín, 2009), thereby mirroring gendered trends and shortcomings in transitional justice more broadly (Boesten & Wilding, 2015; O’Rourke, 2013).
As such, there are, as of 2022, a handful of cases of reparations for gender-based crimes, for instance in the War Crimes Chambers in Bosnia (Björkdahl & Selimovic, 2015), and by national courts in Sierra Leone and Guatemala, where “an urgent reparation scheme awarded one-off payments for survivors of sexual violence, together with medical treatment” (Weber, 2021, p. 221). In Guatemala, apart from the individual compensation to victims of rape in the case of Sepur Zarco, the judges ordered the construction of a health clinic in the village and the creation of an education scholarship fund for women and girls. In Mexico, the European Court for Human Rights (ECHR) and Inter-American Court of Human Rights (IACHR) and its “Cotton Field” judgement on femicide cases have contributed precedent-setting cases for the award of reparations in response to gender violence and harms (Rubio-Marín & Sandoval, 2011) and, more precisely, for the development of gender-just transformation processes (Ketelaars, 2018). As explained by Sane Weber (2021), the Cotton Field judgement “stated that when violations were committed in a context of structural discrimination, reparations should aim to transform this pre-existing situation” (p. 222).
Colombia adopted a transformative approach to reparations and land restitution in its 2011 Victims’ Law. Since land titles are in their majority in men’s names, the Law provides for the allocation of joint land titles to men and women as a way to ensure a better social and economic security in case of divorce or of the husband’s death and in this way transforms gender inequality. In practice, however, transforming attitudes toward women and agricultural work are difficult to achieve and the agricultural projects that have accompanied land restitution in Colombia have focused on men’s agricultural work and have devalued women’s work as just family work to “help make ends meet” (Weber, 2021), reinforcing rather than ending gender inequalities. What is more, most reparations programs globally focus on female victims at the neglect of male survivors and persons with diverse SOGIESC (Schulz, 2020). As noted by Ní Aoláin et al. (2015), “a limited understanding of who can be a victim of sexual harms means that violence against men is often unseen and unaccounted for when states and other international actors conceive and implement reparations” (p. 97). Challenges therefore remain to ensure that reparations can address the gendered manifestations of violence in their holistic occurrence, and that reparations can cement real gendered progress, in particular for conflict-affected women (Rubio-Marín & de Greiff, 2007) as well as for sexual violence survivors of all genders (Duggan et al., 2008; Ní Aoláin et al., 2015; Schulz, 2020).
In light of these conceptual and practical gaps of implementing reparations in response to gendered harms and violence, several scholars have emphasized that “a commitment to transformative reparations is critical to gender-sensitive reparations” (Ní Aoláin et al., 2015, p. 98; see also Kettelaars, 2018; Walker, 2016).Transformative reparations, especially in the context of redressing gendered violence, require “go[ing] beyond the immediacy of sexual violence, [and] encompassing the equality, justice and longitudinal needs of those who have experienced sexual harms” (Ní Aoláin et al., 2015, pp. 98–99).
Bottom-Up Transitional Justice Mechanisms
In the absence of concrete, tangible results for specific crimes committed against women, an array of civil society-led and locally-embedded mechanisms have seen the day. Much of this growing attention to processes at the grassroots and micro level is embedded within the so-called “local turn” in transitional justice (Shaw & Waldorf, 2010), which has also increasingly engaged with gender (Baines, 2010; Kent, 2014). As an illustrative example of such bottom-up initiatives, women’s tribunals have constituted a collective effort at putting women’s experiences of war and violence at the center of truth, justice, and reparation processes necessary to rebuild more gender just societies. In Kosovo, Albano–Kosovar women created an initiative of legal support for victims of sexual violence through the Kosovo Women’s Network, and joined forces with the Serb Women in Black Network Serbia to create the Women Peace Coalition on May 7, 2006 (Kosovo Women’s Network, 2013). Together, they participated in the Women’s Tribunal, a regional initiative of restorative justice led by women survivors of conflict in Yugoslavia (Mujika Chao, 2017).
In Northern Uganda, too—the context in which one of the authors primarily works—a variety of civil society-supported and locally-driven processes exist to deal with past human rights abuses (Baines, 2007). While such processes catalyze a sense of justice on the micro level, in the absence of sufficient processes at the state or international level, however, such processes nevertheless also contain gendered challenges. In many conflict-affected societies—frequently characterized by masculine, patriarchal, and heteronormative constructions of gender—a turn to the local simultaneously often implies a geographical move toward, and a reinforcement of, largely masculinized, homophobic, and sexually conservative societal contexts, which raises challenges for the participation of and roles played by women and youths. For instance, Boege (2006) described how women and girls are often excluded from the administration of these measures and only “become the subjects of these decisions” (p. 16). In Northern Uganda, “the most visible proponents of traditional justice and the most visible participants in the ceremonies are male elders” (Lonergan, 2012, p. 1)—excluding women (and youth) from active roles and instead only passively subjecting them to these processes. With regard to the application of justice, Baines (2007) consequentially argued that “it is unlikely that mato oput [one of the most common traditional justice rituals] will be able to reflect [women’s] interests without significant modification” (p. 107).
In addition to gendered participation and involvement, a localization of justice likewise carries implications for the treatment of gendered conflict-related experiences, including women’s structural inequalities and crimes of sexual violence against women and men. In many conflict-affected societies, a localization of transitional justice measures likely implies that taboo and culturally stigmatized crimes of sexual violence against men fall outside the realm and framework of local means of delivering justice (Schulz, 2020).
Feminist Critiques of Transitional Gender Justice
In light of this overview, and against the background of many of these shortcomings and gaps of extant approaches to gender and transitional justice as discussed in the section on “Gendering Transitional Justice Instruments,” feminist scholars, activists, and practitioners in particular have articulated profound and resounding critiques of transitional gender justice—which constitute the focus of discussion in this section. In particular, feminist perspectives on justice have argued that violence cannot be understood as separate, single acts, but rather as a continuum—as a manifestation of structural inequality and gendered power relations (Braithwaite & D’Costa, 2018). Therefore, these perspectives have criticized transitional justice mechanisms’ focus on “extraordinary” violence during a specific historical moment—from the war declaration to the signature of a peace accord. They have argued that this focus renders invisible the complexities of individual and collective war experiences (Bunch, 1990; Rao, 2001). This, in turn, impairs women’s access to justice (Fiske, 2019). At the same time, a persistent focus of most TJ processes on women as passive, vulnerable victims overlooks and downplays the active roles and agency exercised by women in (post)conflict and transitional settings (Björkdahl & Selimovic, 2015), thereby reinforcing essentialist gender stereotypes of female victimhood (Enloe, 2000).
The Experiences of Violence
The differentiation between extraordinary and ordinary violence does not reflect women’s lived experiences during war and in postwar justice efforts and socioeconomic restructuring processes. First, this distinction has resulted in the reinforcement of harmful tropes about sexual violence committed in “ordinary” circumstances in conflict and postconflict settings (Grewal, 2015) and has not addressed rapes and sexual violence committed by peacekeepers, (civilian) men from the same ethnic group, or from the victims’ own families and communities, or any other circumstances than those considered as rape as a strategic weapon of war perpetrated by enemy armed soldiers (Fiske & Shackel, 2014).
Second, this false and binary differentiation between ordinary and extraordinary also ignores the fact that wartime violence is not only physical and direct, but rather is inherently relational and takes many forms, and that these cannot be separated in lived experiences (Hozić & True, 2017). This is due to the fact that acts of violence are “dynamically connected through social, political and economic factors in the surrounding context” (Krause, 2015, p. 16). For example, many women become widowed during war and as a result are dispossessed of land and other resources in patrilinear societies (Shackel & Fiske, 2016), are excluded from social life (Yadav, 2016), and are vulnerable to further violence due to their precarious economic situation (True, 2012). In addition, war also blurs the boundaries between production and social reproduction because violent conflict pushes both productive and reproductive activities into private spaces. For example, families need to go into subsistence production to access food and other basic goods; there is an absence of social or public spaces for childcare, healthcare, and the elderly; and the gendered, classed, and racial patterns of everyday violence get exacerbated by militarization and economic collapse (Elias & Rai, 2019; Rai et al., 2019). Furthermore, this socioeconomic violence tends to be reproduced in postwar economic and political reforms by the national and the international community.
The Continuum of Violence
Feminist activists and scholars have pointed out that while sexual violence and rape during war have been recognized as crimes against humanity and war crimes, the persistence of physical, sexual, and gender-based violence in the aftermath of conflict is barely given any attention. Nevertheless, the consequences of war, such as a militarized society, impoverishment, unemployment, and posttraumatic stress disorder, as well as men’s feelings of inability to fulfill their perceived gender roles as providers and protectors of their families often lead to domestic and sexual violence (El Bushra, 2003; Ní Aoláin et al., 2011; Rubio-Marín, 2009).
Furthermore, the focus on sexual violence has ignored that gendered violence takes many forms. For example, the lack of access to social services and infrastructure results in women taking the burden of reproductive work, while often being the only bread winners in separated or destroyed families. Ultimately, feminist have argued for a long time that in contexts of war and peace, transitional justice is “brought” to war-torn countries by the international community (Nagy, 2014, p. 217). However, looking at injustices and conflict-related violence also entails accounting for the role that international financial institutions and their postwar reconstruction projects play in reproducing wartime gender-based violence and preexisting economic inequalities through their politics of privatization, liberalization, and austerity (Lai, 2020). The lack of a serious engagement with the socioeconomic legacies of the war and the justice claims deriving from it provokes the sidelining of access to health services, education, and job market policies to the benefit of macrostructural reforms and reconstruction projects of roads, airports, and other transport infrastructure (Manjoo & McRaith, 2011; Martin de Almagro & Ryan, 2019; Ní Aoláin et al., 2011; Rubio-Marín, 2009).
Crucially, the justice model envisioned in liberal peacebuilding reforms often excludes redistributive demands as security and justice are defined in a state-centric manner (Ní Aoláin, 2009), where the reintegration of the state in global markets provide further economic exploitation and exclusion of women through the reestablishment of traditional gender roles and feminized low-paying jobs (Sassen, 2000). These concerns have evolved toward larger debates on redistributive policies and the role of states and markets in postconflict economies. Lai (2020) explained how postwar countries such as Bosnia-Herzegovina with a socialist past had social services available to support social reproduction while women were at work. These services disappeared once International Financial Institutions (IFIs) reconstructed the country according to liberal standards, entrenching gendered inequalities and injustices that the war brought with it. While women lost their jobs in the factories, had difficult access to food and water during wartime, and were responsible for the survival of the household, the IFIs reconstruction project did not redress but rather reproduced wartime socioeconomic violence. The transition post-Apartheid period in South Africa also marked a case in point: the South African government started implementing neoliberal policies that negatively affected black people in general, and women’s economic and social conditions in particular (Hunter, 2007).
Feminist Solutions to Achieve Transformative Justice
In light of these dynamics, feminist analytical lenses underscore the continuities between (gendered) public and private violence; distinctions between prewar, war, and postwar violence; and physical to structural violence and inequalities (Boulding, 1984; Enloe, 2000; Tickner, 1992; True, 2012). Such feminist takes contend that gender justice can only happen through the direct and substantive participation by ordinary people, and in particular conflict-affected women and girls (Rees & Chinkin, 2015). Taking their participation seriously, these scholars have argued, will result in a broadening of transitional justice’s scope to include economic, social, and cultural rights (Nagy, 2014; Rees & Chinkin, 2015). Feminist scholars thus have claimed that TJ measures should reflect transformative understandings of justice directed at ensuring that gender-based violence will not happen again and at tackling the inequalities, marginalizations, and exclusions that underlie and fuel wars (Cohn & Duncanson, 2020; True & Hozić, 2020).
Therefore, for justice to be transformative, transitional justice mechanisms must also operate hand in hand with postwar reforms (Lai, 2020; Martin de Almagro & Ryan, 2019, 2020). As argued, many of the underpinning components of transformative justice, such as a commitment to challenge unequal status quos and structural (often gendered) inequalities as well as a prioritization of socioeconomic rights (see Sharp, 2013), have long been advocated for by feminist scholars (see Cockburn, 2008). In particular, “for women, periods of societal transition have to aim for the transformation of the underlying inequalities that provided the conditions in which [their] specifically gendered harms were possible” (Boesten & Wilding, 2015, p. 1); see also (Davies & True, 2017). As outlined by Ní Aoláin (2019), transformation and transformative (gender) justice “depend on the redistribution of formal and informal power” and a feminist “commitment to profoundly recalibrate power relationships” (Ní Aoláin, 2019, p. 150; also see Enloe, 2000). In this capacity, transformative reparations and remedies to conflict-related violations of socioeconomic or “subsistence” rights (Arbour, 2007; Sankey, 2014) carry important implications for feminist projects of gender justice and women’s equality in transitional justice in particular (Boesten & Wilding, 2015).
Inclusive Gender: Integrating Masculinities and Queer Perspectives on Transitional Justice
Despite this vastly growing and diversifying engagement with gender in the study of transitional justice, the dominant conceptualization of “gender” in transitional contexts effectively remains an incomplete and exclusive one. Indeed, discussions about gender and TJ often circle around how transitional processes can advance “gender justice” for female victims of violence (Boesten & Wilding, 2015) and for women survivors of wartime sexual violence in particular (Aroussi, 2011). According to these prevailing understandings, “gender” is often synonymous with “women,” and conflict-related experiences are only considered “gendered” when they represent and reinforce “the unequal position of women in society” (Pillay, 2007, p. 317). As argued by feminist anthropologist Kimberly Theidon (2007), in transitional justice, “from gender hearings to gender units and gender-sensitive truth commissions, ‘adding gender’ is policy-speak for ‘adding women’” (p. 353). To illustrate, the implementation of transitional justice measures put forward in several resolutions of the WPS agenda also primarily understand “gender” as “women.” For example, the 2010 U.N. Secretary-General report on the implementation of UNSCR 1325 included both the “number and percentage of transitional justice mechanisms called for by peace processes that include provisions to address the rights and participation of women and girls in their mandates” and the “number and percentage of women and girls receiving benefits through reparation programs, and types of benefits received” (United Nations Secretary General, 2010, p. 48).
Without a doubt, owing to the pervasive and structural discrimination of women in conflict-affected and transitional settings globally and the marginalization of women’s perspectives and experiences throughout TJ scholarship and praxis, such a focus remains urgently needed (O’Rourke, 2017). Yet, despite this importance, such a focus also reinforces the on-going exclusion of masculinities and queer perspectives throughout international relations (IR) and conflict research at large, and within the fields of peacebuilding and transitional justice in particular (Bueno-Hansen, 2018; Duriesmith, 2016; Fobear, 2014; Hagen, 2016; Schulz et al., 2023). In fact, specific masculinities perspectives and careful consideration for men’s and boys’ experiences as gendered—as well as for the lived realities of persons with diverse sexual orientations, gender identities and expressions, and sex characteristics (SOGIESC; Daigle & Myrttinen, 2018)—remain omitted from most gendered TJ analyses. This has slowly begun to change, and emerging critical research has increasingly called for attention to masculinities and SOGIESC questions in transitional justice scholarship (Bueno-Hansen, 2018; Fobear, 2014; Hamber, 2016; Theidon, 2009). Yet, as one of the authors cautioned previously, “these few studies thus far exist primarily in silos, and are often characterized by an often unitary focus on either masculinities or sexual and gender minorities” (Schulz, 2019, p. 692).
In their broadest sense, masculinities are socially constructed gender norms, specifically referring to the multiple ways of “doing male” within and across societies. The foundational work by R. W. Connell (1995) in particular teaches us about the multiplicities and variations of masculinities (in plural) as well as about the inherent power relations within and between masculinities and gender hierarchies more widely. Since the early 2000s, a growing body of literature has begun to pay critical attention to masculinities and their relations to and positioning in the global gender order (Connell & Messerschmidt, 2005), and specifically in relation to armed conflicts (Duriesmith, 2016). However, while a “fairly substantial amount of literature has been generated over the years regarding the forms of masculinity that emerge in times of armed conflict and war” (Ní Aoláin et al., 2011, p. 231), this has not yet sufficiently travelled toward postconflict and transitional contexts, with only few exceptions (Hamber, 2016; Theidon, 2009). Tracing the marginalization of these intersections over a decade, Hamber (2007, 2016) attested that masculinities perspectives in TJ scholarship presently find themselves in an embryonic state and are only gradually emerging. This is not to suggest, however, that TJ scholarship does not incorporate the voices and views of men. On the contrary, and as convincingly argued by feminist scholars, TJ can largely be seen as inherently dominated by masculine values and actors (O’Rourke, 2017). What remains underdeveloped, however, is careful consideration for men’s experiences as gendered.
If and when there is engagement with masculinities in TJ contexts, this often unfolds against the backdrop of a violation-centric lens. That is, emerging research on masculinities and TJ focuses either on violent and militarized masculinities, so the violations they perpetrate; or on masculine vulnerabilities, and specifically on sexual violence against men, so the (sexual) violations perpetrated against men. A primary concern of this existing literature has centered around questions of how to disarm and transform violent masculinities in postconflict and transitional periods (Cahn & Ní Aoláin, 2010), for instance through disarmament, demobilization, and reintegration (DDR) programming (Theidon, 2009). This focus is underpinned by the argument that facilitating transitions from conflict to peace requires that militarized masculinities—embodied by (former) combatants—are successfully transformed. As Cahn and Ní Aoláin (2010) argued, one of the central quandaries for TJ and DDR processes “is how to undo the [violent] masculinities learned during wartime” and its wake (p. 118). Research by Theidon (2009) similarly centralized the importance of sustainably mobilizing former combatants to respond to the security challenges posed by them, as well as to the perceived loss of masculine privilege that often attends such processes. Theidon (2009) argued that “transforming the hegemonic, militarized masculinities that characterize former combatants can help further the goals of both DDR and transitional justice processes [. . .] to contribute to building peace on both the battlefield and the home front” (p. 34).
At the same time, however, previous research has also acknowledged the complexities and difficulties of these transformation processes due to the ways in which these masculinities constructions are socially embedded within patriarchal and nationalistic societal structures. In many ways, this focus on militarized masculinities is reflective of dominant research on men and masculinities within the context of war and insecurities more broadly, which has mostly examined the “violences of men” (Hearn, 1998) and the linkages between certain forms of masculinities and the various forms of violence associated with them (Myrttinen et al., 2017).
Another angle through which an engagement with masculinities has unfolded is based on attention to men’s vulnerabilities, and in particular to sexual violence against men and boys (SVAMB). For a long time, men’s experiences of sexual violence were often overlooked and “tailored intervention to address male-centred sexual harms remains exclusive and marginalized” (Ní Aoláin et al., 2015, p. 109). In practical terms, despite a handful of cases involving sexual violence against men in the international criminal justice arena, and in the context of some truth and reconciliation commissions (TRC) in Latin America, TJ instruments have thus far almost entirely turned a blind eye to the experiences of sexually violated men (Schulz, 2020).
Despite this prevailing marginalization of sexual violence against men, emerging scholarship has begun to explore how socially constructed masculinities render men vulnerable to gender-based violence in the first place and how sexual violence impacts male survivors’ gendered identities as men in myriad ways (Myrttinen et al., 2017; Schulz, 2020). Accordingly, there has also been some attention to the intersections between SVAMB and TJ in the form of growing engagement with the ways in which male survivors conceptualize justice in postconflict settings (Schulz, 2020). Focused specifically on Northern Uganda, previous research by one of the authors has begun to highlight male survivors’ gender-specific justice needs and conceptions (Schulz, 2019, 2020), as well as how numerous gendered, cultural, and sociopolitical barriers often uphold a vacuum of justice and persisting impunity for those crimes committed against most male survivors of sexual violence globally. Paying attention to male survivors’ lived realities and their justice-related concerns, needs, and priorities is important to address some of the persisting gendered gaps and blind spots.
However, what arguably still requires further examination are the experiences of noncombatant and nonmilitarized civilian men, who arguably constitute the majority of men during most armed conflicts globally, as well as nonheterosexual masculinities, which are still largely rendered invisible by heteronormative frames of conflict and TJ (Schulz et al., 2023). As such, a much needed avenue for further engagement is to consider “how hidden masculine cultures operate within a variety of hierarchies and social spaces (Hamber, 2016, p. 30).
Paying sustained attention to masculinities, however, also bears the risk of reinforcing binary constructions of gender, which have been remarkably consistent throughout the study of armed conflict (Sjoberg, 2016). To avoid this, careful consideration for gender and sexualities as fluid spectrums, for the elasticity of gender, as well as the inclusive recognition of people with diverse sexual orientations, gender identities, and expressions and sex characteristics (SOGIESC) is important to fully comprehend gendered understandings of conflicts and political transitions. These nonbinary experiences and perspectives, however, are only seldom taken into account in the context of conflict studies and peacebuilding in general (Hagen, 2016) and in relation to transitional justice processes specifically (Bueno-Hansen, 2018; Fobear, 2014). As summarized by McQuaid (2017), “on the subject of the particular justice needs and harms experienced by sexual minorities, much current transitional justice scholarship remains silent” (p. 1). Katherine Fobear (2023) similarly attested that even though the field of transitional justice has grown substantially, including with regard to incorporating gender, the question of “what it would mean to better incorporate and engage with queer bodies and theory in transitional justice is still very relevant today” (p. 2; also see Fobear, 2014). Queer and queering in the context of this discussion serves as an umbrella term to recognize a variety of expressions, identities, and actions that disrupt cis-heteronormative frames based on strict and binary conceptions of gender and sexualities.
It would, however, be misleading to claim that there has been no movement within the field of TJ to queer it, thanks to critical interventions from scholars and activists alike (Fobear, 2023). Many of these developments can be observed in relation to truth commissions (Bueno-Hansen, 2023; Fobear, 2014) as well as processes of dealing with the past in Latin American contexts, “some of which have expanded their purview to include human rights investigations of violence against sexual and gender minorities” (Schulz, 2019, p. 701; see also Bueno-Hansen, 2018). Colombia in particular serves as a contemporary example of the precedent-setting work for the inclusion of persons with diverse SOGIESC and their experiences into TJ processes (Oettler, 2019), for instance with the 2011 Victim’s and Land Restitution Law and its Victim’s Unit, which include “a differential approach that recognizes sexual orientation and gender identity” (Bueno-Hansen, 2018, p. 5). In Ecuador, too, a feminist-informed and gender inclusive approach contributed toward “a holistic understanding of sexual and gender-based violence,” including attention to violence against persons with diverse SOGIESC in the Truth Commission’s final report (Bueno-Hansen, 2023, p. 2).
However, to queer transitional justice processes, it is not enough to only address antiqueer violence directed against LGBTQI communities and people with diverse SOGIESC, but also to address and critically interrogate larger systems of homophobia, transphobia, patriarchy, and heteronormativity (Bueno-Hansen, 2018; Fobear, 2023). To this end, critical scholars have argued for the need of queer, intersectional, and decolonial approaches (Bueno-Hansen, 2018; Ní Aoláin & Rooney, 2007) that expose “how institutionalized categories and identities are used to regulate and socialize” (Fobear, 2023, p. 6), and that would contribute toward circumventing the neoliberal and heteronormative foundations of TJ. In combination, this triangulation of queer, intersectional, and decolonial analytical lenses to examine queer lived realities can challenge the hetero- and cis-normativity of the field (Bueno-Hansen, 2018; Hagen, 2016), and can thus contribute toward a more inclusive understanding of gender in the context of TJ. Nevertheless, across time and space, states’ accountability to address systematic forms of violence against persons with SOGIESC and to push for greater inclusion remains severely limited—consequentially requiring further engagement and advocacy to push the conversation forward by focusing on greater engagement across different spheres and for a variety of populations in transitional settings (Fobear, 2023).
Ways Forward: Toward More Comprehensive and Inclusive Conceptions of “Gender” and “Justice”
This article has offered an overview of transitional (gender) justice mechanisms and their limitations and has put forward questions as to whether transitional justice and its “formulaic approach” (Rees & Chinkin, 2015, p. 1211) can ever succeed in changing women’s and other marginalized population’s lives. Without a doubt, much progress has been made in gendering transitional justice processes, and gendered harms have received increasing attention in the international policy arena. However, several shortcomings persist in effectively addressing gendered conflict-related experiences and in advancing transformations for women. When it comes to the implementation of transitional justice, all too often gender remains an afterthought, and is often implemented through a typical “add women and stir” approach—which in turn falls short in fully understanding the ways in which gender permeates all aspects of social and political life, including of armed conflicts and political transitions.
In light of these limitations and shortcomings, then, more needs to be done to address gender in postconflict and transitional spaces. This includes a move beyond transitional justice toward transformative justice, for instance in the form of transformative reparations to ultimately address gendered and patriarchal structures and root causes of violence and conflict and contribute toward more gender-just societal structures. Gendering transitional justice also requires going beyond a conflation of “gender” with “women,” to instead fully consider the full spectrum and elasticity of gender in the form of paying more sustained attention to masculinities and queer experiences and perspectives. To gain a more complete picture of gender in transitional justice and to ultimately advance this progress in practical turn, relational, intersectional, de-colonial and queer approaches are required that take into account the ways in which gender intersects with other identities and forms or exclusions and discrimination. Such approaches, then, also hold the potential to move beyond neoliberalized notions of justice (and gender) that dominate the study and practice of transitional justice, and to instead think of justice in more relational and creative terms.
- Arbour, L. (2007). Economic and social justice for societies in transition. NYU Journal of Law and Politics, 40(1), 1–28.
- Aroussi, S. (2011). “Women, peace and security”: Addressing accountability for wartime sexual violence. International Feminist Journal of Politics, 13(4), 576–593.
- Arthur, P. (2009). How “transitions” reshaped human rights: A conceptual history of transitional justice. Human Rights Quarterly, 31(2), 321–367.
- Baines, E. (2007). The haunting of Alice: Local approaches to justice and reconciliation in Northern Uganda. International Journal of Transitional Justice, 1(1), 91–114.
- Baines, E. (2010). Spirits and social reconstruction after mass violence: Rethinking transitional justice. African Affairs, 109(436), 409–430.
- Bell, C. (2009). Transitional justice, interdisciplinary and the state of the “field” or “non-field.” International Journal of Transitional Justice, 3(1), 5–27.
- Bell, C., & O’Rourke, C. (2007). Does feminism need a theory of transitional justice? An introductory essay. International Journal of Transitional Justice, 1(1), 23–44.
- Björkdahl, A., & Selimovic, J. M. (2015). Gendering agency in transitional justice. Security Dialogue, 46(2), 165–182.
- Boege, V. (2006). Traditional approaches to conflict transformation: Potentials and limits. Berghof Foundation.
- Boesten, J., & Wilding, P. (2015). Transformative gender justice: Setting an agenda. Women’s Studies International Forum, 51, 75–80.
- Boulding, E. (1984). Focus on: The gender gap. Journal of Peace Research, 21(1), 1–3.
- Braithwaite, J., & D’Costa, B. (2018). Cascades of violence. War, crime and peacebuilding across South Asia. ANU Press.
- Bronéus, K. (2008). Truth-telling as talking cure? Insecurity and retraumatization in the Rwandan Gacaca Courts. Security Dialogue, 39(1), 55–76.
- Buckley-Zistel, S., & Stanley, R. (2012). Gender in transitional justice. Palgrave Macmillan.
- Buckley-Zistel, S. (2013). Redressing Sexual Violence in Transitional Justice and the Labelling of Women as ‘Victims’. In Bonacker, Thorsten/ Safferling, Christoph (Eds.), Victims in Transitional Justice, The Hague: T. C. M. Asser Press, pp. 91-100.
- Bueno-Hansen, P. (2015). Feminist and human rights struggles in Peru: Decolonizing transitional justice. University of Illinois Press.
- Bueno-Hansen, P. (2018). The emerging LGBTI rights challenge to transitional justice in Latin America. International Journal of Transitional Justice, 12(1), 126–145.
- Bueno-Hansen, P. (2023). What can transitional justice do about the heterosexual system? The Ecuadorian Truth Commission’s feminist informed gender approach. In P. Schulz, B. Hamber, & H. Touquet (Eds.), Masculinities and queer perspectives in transitional justice (pp. 158–171). Intersentia.
- Bunch, C. (1990). Women’s rights as human rights: Towards a re-vision of human rights. Human Rights Quarterly, 12(4), 486–498.
- Cahn, N., & Ní Aoláin, F. D. (2010). Gender, masculinities and transition in conflicted societies. New England Law Review, 44, 101–122.
- Campbell, K. (2004). The trauma of justice: Sexual violence, crimes against humanity and the International Criminal Tribunal for the former Yugoslavia. Social & Legal Studies, 13(3), 329–350.
- Chappell, L. (2011). Nested Newness and Institutional Innovation: Expanding gender justice in the International Criminal Court. In M. L. Krook & F. Mackay (Eds.), Gender, politics, and institutions (pp. 163–180). Palgrave McMillan.
- Chappell, L. (2014). “New,” “old,” and “nested” institutions and gender justice outcomes: A view from the International Criminal Court. Politics & Gender, 10(4), 572–594.
- Cockburn, C. (2008). From where we stand: War, women’s activism and feminist analysis. Bloomsbury.
- Cohn, C., & Duncanson, D. (2020). Whose recovery? IFI prescriptions for postwar states. Review of International Political Economy, 27(6), 1214–1234.
- Connell, R. W. (1995). Masculinities (2nd ed.). University of California Press.
- Connel, R. W., & Messerschmidt, J. (2005). Hegemonic masculinity: Rethinking the concept. Gender & Society, 19(6), 829–859.
- Daigle, M., & Myrttinen, H. (2018). Bringing diverse sexual orientation and gender identity (SOGI) into peacebuilding policy and practice. Gender & Development, 26(1), 103–120.
- Davies, S., & True, J. (2017). When there is no justice: Gendered violence and harm in post-conflict Sri Lanka. The International Journal of Human Rights, 21(9), 1320–1336.
- de Greiff, P. (2008). The handbook of reparations. Oxford University Press.
- de Greiff, P. (2012). Theorizing transitional justice. Nomos, 51, 31–77.
- Duggan, C., Paz y Paz Bailey, C., & Guillerot, J. (2008). Reparations for sexual and reproductive violence: Prospects for achieving gender justice in Guatemala and Peru. International Journal of Transitional Justice, 2(2), 192–213.
- Duriesmith, D. (2016). Masculinity and new war: The gendered dynamics of contemporary armed conflict. Routledge.
- El Bushra, J. (2003). Fused in combat: Gender relations, and armed conflict. Development in Practice, 13(2–3), 252–265.
- Elias, J., & Rai, S. (2019). Feminist everyday political economy: Space, time, and violence. Review of International Studies, 45(2), 201–220.
- Enloe, C. (2000). Manoeuvres. University of California Press.
- Enloe, C. (2004). The curious feminist. Searching for women in a new age of empire. University of California Press.
- Fiske, L. (2019). The rise (and fall?) of transitional gender justice: A survey of the field. In R. Shackel & L. Fiske (Eds.), Rethinking transitional gender justice (pp. 17–36). Palgrave MacMillan.
- Fiske, L., & Shackel, R. (2014). Ending rape in war: How far have we come? Cosmopolitan Civil Societies Journal, 6(3), 123–138.
- Fletcher, L. E., & Weinstein, H. M. (2002). Violence and social repair: Rethinking the contribution of justice to reconciliation. Human Rights Quarterly, 24(3), 573–639.
- Fobear, K. (2014). Queering truth commissions. Journal of Human Rights Practice, 6(1), 51–68.
- Fobear, K. (2023). Queering transitional justice: Reviewing the field of transitional justice and looking towards queer possibilities. In P. Schulz, B. Hamber, & H. Touquet (Eds.), Masculinities and queer perspectives in transitional justice (pp. 121–131). Intersentia.
- Franke, K. M. (2006). Gendered subjects of transitional justice. Columbia Journal of Gender and Law, 15(3), 813–828.
- Goldblatt, B., & Meintjies, S. (2011). Dealing with the aftermath: Sexual violence and the Truth and Reconciliation Commission. Agenda, 13(36), 7–18.
- Gready, P., & Robins, S. (2014). From transitional to transformative justice: A new agenda for practice. International Journal of Transitional Justice, 8(3), 339–361.
- Gready, P. & Robins, S. (Eds.) (2019). From Transitional to Transformative Justice. Cambridge: Cambridge University Press.
- Grewal, K. (2015). International criminal law as site for enhancing women’s rights? Challenges, possibilities, strategies. Feminist Legal Studies, 23(2), 149–165.
- Haffajee, R. L. (2006). Prosecuting crimes of rape and sexual violence at the ICTR: The application of joint criminal enterprise theory. Harvard Journal of Law and Gender, 29, 201–222.
- Hagen, J. (2016). Queering women, peace and security. International Affairs, 92(2), 313–332.
- Hamber, B. (2007). Masculinity and transitional justice: An exploratory essay. International Journal of Transitional Justice, 1(3), 375–390.
- Hamber, B. (2008). Narrowing the micro and the macro. In P. de Greiff (Ed.), The handbook of reparations (pp. 560–588). Oxford University Press.
- Hamber, B. (2016). There is a crack in everything: Problematising masculinities, peacebuilding and transitional justice. Human Rights Review, 17(1), 1–25.
- Hamber, B., & Palmary, I. (2009). Gender, memorialization and symbolic reparations. In R. Rubio-Marín (Ed.), The gender of reparations. Unsettling sexual hierarchies while redressing human rights violations (pp. 324–380). Oxford University Press.
- Hearn, J. (1998). The violences of men: How men talk about and how agencies respond to men’s violence to women. SAGE.
- Henry, N. (2009). Witness to rape: The limits and potential of international war crimes trials for victims of wartime sexual violence. International Journal of Transitional Justice, 3, 114–134.
- Houge, A., & Lohne, K. (2017). End impunity! reducing conflict-related sexual violence to a problem of law. Law and Society Review, 51(4), 755–789.
- Hozić, A., & True, J. (2017). Brexit as a Scandal: Gender and global Trumpism. Review of International Political Economy, 24(2), 270–287.
- Hunter, M. (2007). The changing political economy of sex in South Africa: The Significance of unemployment and inequalities to the scale of the AIDS pandemic. Social Science and Medicine, 64(3), 689–700.
- Kelsall, M. S., & Stepakoff, S. (2007). “When we wanted to talk about rape”: Silencing sexual violence at the Special Court for Sierra Leone. International Journal of Transitional Justice, 1(3), 355–374.
- Kent, L. (2014). Narratives of suffering and endurance: Coercive sexual relationships, truth commissions and possibilities for gender justice in Timor-Leste. International Journal of Transitional Justice, 8(2), 289–313.
- Ketelaars, E. (2018). Gendering Tunisia’s transition: Transformative gender justice outcomes in times of transitional justice turmoil? International Journal of Transitional Justice, 12(3), 407–426.
- Kosovo Women’s Network. (2013). Women in Black Network Serbia, KWN form Women’s Peace Coalition.
- Krause, U. (2015). A continuum of violence? Refugee Survey Quarterly, 34(4), 1–19.
- Lai, D. (2020). What has justice got to do with it? Gender and the political economy of post-war Bosnia and Herzegovina. Review of International Political Economy, 27(6), 1257–1279.
- Lonergan, K. (2012). Gender and generation in Acholi traditional justice mechanisms (JRP Field Note XVII). Justice and Reconciliation Project.
- Manjoo, R., & McRaith, C. (2011). Gender-based violence and justice in conflict and post-conflict areas. Cornell International Law Journal, 44, 11.
- Martin de Almagro, M. (2017). Transitional justice and women, peace and security: A critical reading of the EU framework [LSE Women, Peace and Security Working Paper Series (5/2017)]. Centre for Women Peace and Security, London School of Economics and Political Science.
- Martin de Almagro, M., & Ryan, C. (2019). Subverting economic empowerment: Towards a postcolonial-feminist framework on gender (in) securities in post-war settings. European Journal of International Relations, 25(4), 1059–1079.
- Martin de Almagro, M., & Ryan, C. (2020). Introduction: (Re)integrating feminist security studies and global political economy: Continuing the conversation through empirical perspectives. Politics & Gender, 16(3).
- McEvoy, K. (2007). Beyond legalism: Towards a thicker understanding of Transitional Justice. Journal of Law and Society, 34(4), 411–440.
- McGlynn, C., & Westmarland, N. (2019). Kaleidoscopic justice: Sexual violence and victim-survivors’ perceptions of justice. Social & Legal Studies, 28(2), 179–201.
- McQuaid, K. (2017). “There is violence across, in all arenas”: Listening to stories of violence amongst sexual minority refugees in Uganda.” The International Journal of Human Rights, 1–22.
- Mertus, J. (2004). Shouting from the bottom of the well the impact of international trials for wartime rape on women’s agency. International Feminist Journal of Politics, 6(1), 110–128.
- Mibenge, C. S. (2013). Sex and international tribunals: The erasure of gender from the war narrative (1st ed.). University of Pennsylvania Press.
- Mujika Chao, I. (2017). Acción feminista en la resistencia civil noviolenta, guerra y posguerra en Kosovo. In I. Mendia Azkue, G. Guzmán Orellana, & I. Zirión Landaluze, (Eds.), Género y justicia transicional: Movimientos de mujeres contra la impunidad (pp. 33–63). Hegoa.
- Myrttinen, H., Khattab, L., & Naujoks, J. (2017). Re-thinking hegemonic masculinities in conflict-affected contexts. Critical Military Studies, 3(2), 103–119.
- Nagy, R. (2014). Transitional justice as a global project: Critical reflections. In R. Buchanan & P. Zumbansen (Eds.), Law in transition (pp. 215–226). Bloomsbury.
- Nesiah, V., et al. (2006, July). Truth commissions and gender: Principles, policies, and procedures. International Center for Transitional Justice.
- Ní Aoláin, F. (2009). Women, security and the patriarchy of internationalized transitional justice. Human Rights Quarterly, 31(4), 1055–1085.
- Ní Aoláin, F. (2012). Advancing feminist positioning in the field of transitional justice. International Journal of Transitional Justice, 6(2), 205–228.
- Ní Aoláin, F. (2019). Transformative gender justice? In P. Gready & S. Robins (Eds.), From transitional to transformative justice (pp. 150–171). Cambridge University Press.
- Ní Aoláin, F., Cahn, N., & Haynes, D. F. (2011). Masculinities and child soldiers in post-conflict societies. In A. McGinley (Ed.), Masculinities and the law. A multidimensional approach (pp. 231–251). New York University Press.
- Ní Aoláin, F., Haynes, D. F., & Cahn, N. (2011). On the frontlines: Gender, war, and the postconflict process. Oxford University Press.
- Ní Aoláin, F., O’Rourke, C., & Swaine, A. (2015). Transforming reparations for conflict-related sexual violence: Principles and practice. Harvard Human Rights Journal, 28, 97–146.
- Ní Aoláin, F., & Rooney. E. (2007). Underenforcement and intersectionality: Gendered aspects of transition for women. International Journal of Transitional Justice, 1(3), 338–354.
- Oettler, A. (2019). The struggle for gendered peace and LGBT rights in Colombia [Violence, Security and Peace Working Papers]. London School of Economics and Political Science.
- O’Rourke, C. (2013). Gender politics in transitional justice (1st ed.). Routledge.
- O’Rourke, C. (2017). Transitional justice and gender. In C. Lawther, L. Moffett, & D. Jacobs (Eds.), Research handbook on transitional justice (pp. 117–142). Edward Elgar.
- Otto, D. (2009). The exile of inclusion: Reflections on gender issues in international law over the last decade. Melbourne Journal of International Law, 10(1).
- Pillay, N. (2007). Editorial Note. Special Issue: Gender and transitional justice. International Journal of Transitional Justice, 1(3), 315–317.
- Rai, S. M., True, J., & Tanyag, M. (2019). From depletion to regeneration: Addressing structural and physical violence in post-conflict economies. Social Politics: International Studies in Gender, State & Society, 26(4), 561–585.
- Rao, A. (2001). Right in the home: Feminist theoretical perspectives on international human rights. In P. Hayden (Ed.), The philosophy of human rights (pp. 505–525). Paragon House.
- Rees, M., & Chinkin, C. (2015). Exposing the gendered myth of post conflict transition: The transformative power of economic and social rights. New York University Journal of International Law and Politics, 48, 1211–1226.
- Roht-Arriaza, N., & Mariezcurrena, J. (Eds.). (2006). Transitional justice in the twenty-first century: Beyond truth versus justice. Cambridge University Press.
- Rubio-Marín, R. (Ed.). (2009). The Gender of reparations: Unsettling sexual hierarchies while redressing human rights violations. Cambridge University Press.
- Rubio-Marín, R., & de Greiff, P. (2007). Women and reparations. International Journal of Transitional Justice, 1(3), 318–337.
- Rubio-Marín, R., de Greiff, P., & Mayer-Rieckh, A. (Eds.). (2006). What happened to the women? Gender and reparations for human rights violations. International Center for Transitional Justice. Social Sciences Research Council.
- Rubio-Marín, R., & Sandoval, C. (2011). Engendering the reparations jurisprudence of the Inter-American Court of Human Rights: The promise of the cotton field judgment. Human Rights Quarterly, 33(4), 1062–1091.
- Sankey, D. (2014). Towards recognition of subsistence harms: Reassessing approaches to socioeconomic forms of violence in transitional justice. International Journal of Transitional Justice, 8(1), 121–140.
- Sassen, S. (2000). Women’s burden: Counter-geographies of globalization and the feminization of survival. Journal of International Affairs, 53(2), 503–524.
- Schulz, P. (2019). Towards inclusive gender in transitional justice: Gaps, blind-spots and opportunities. Journal of Intervention and Statebuilding, 14(5), 691–710.
- Schulz, P. (2020). Male survivors of wartime sexual violence: Perspectives from Northern Uganda. University of California Press.
- Schulz, P., Hamber, B., & Touquet, H. (2023). Masculinities and queer perspectives in transitional justice. Intersentia.
- Schulz, P., & Kreft, A. (2022). Accountability for conflict-related sexual violence. Oxford Research Encyclopedia of International Studies, 1–25.
- Seelinger, K. T. (2020). Close to home. Journal of International Criminal Justice, 18(2), 219–242.
- Shackel, R., & Fiske, L. (2016). Making justice work for women. Kenya country report. Sydney University.
- Sharp, D. (2013). Interrogating the peripheries: The preoccupations of fourth generation transitional justice. Harvard Human Rights Journal, 26, 149–178.
- Shaw, R., & Waldorf, L. (2010). Localizing transitional justice: Interventions and priorities after mass violence. Stanford University Press.
- Sierra Leone Truth and Reconciliation Commission. (2004). Witness to truth: Report of the Sierra Leone truth and reconciliation commission.
- Sjoberg, L. (2016). Women as wartime rapists: Beyond sensation and stereotyping. New York University Press.
- Sriram, C. (2014). Liberal peacebuilding and transitional justice: What place for socioeconomic concerns? In C. Sriram (Ed.), Justice and economic violence in transition (pp. 27–49). Springer.
- Teitel, R. (2003). Transitional justice genealogy. Harvard Human Rights Journal, 16, 69–94.
- Teitel, R. (2015). Globalizing transitional justice. Oxford University Press.
- Theidon, K. (2007). Gender in transition: Common sense, women, and war. Journal of Human Rights, 6(4), 453–478.
- Theidon, K. (2009). Reconstructing masculinities: The disarmament, demobilization, and reintegration of former combatants in Colombia. Human Rights Quarterly, 31(1), 1–34.
- Tickner, A. (1992). Gender in international relations: Feminist perspectives on achieving global security. Columbia University Press.
- True, J. (2012). The political economy of violence against women. Oxford University Press.
- True, J., & Hozić, A. (2020). Don’t mention the war! International financial institutions and the gendered circuits of violence in post-conflict. Review of International Political Economy, 27(6), 1193–1213.
- United Nations General Assembly. (2006). Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of International Human Rights Law and serious violations of International Humanitarian Law. A/RES160/147.
- United Nations Secretary General. (2010). Women and peace and Security. Report of the Secretary-General. S/2010/498.
- United Nations Security Council. (2015, October 13). United Nations Security Council Resolution 2242. Adopted by the Security Council at its 7533rd meeting. S/RES12242.
- United Nations’ Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence. (2020). Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, United Nations General Assembly, Seventy-fifth session, Item 72 (b), A/75/174.
- UNWOMEN. (2015). A Global Study on the implementation of United Nations Security Council Resolution 1325. Preventing Conflict, Transforming Justice, Securing the Peace.
- Walker, M. (2016). Transformative Reparations? A critical look at a current trend in thinking about gender-just reparations. International Journal of Transitional Justice, 10(1), 108–125.
- Weber, S. (2021). Gender and transitional justice. In H. Yusuf & H. van der Merwe (Eds.), Transitional justice: Theories, mechanisms and debates (pp. 207–229). Oxford University Press.
- Yadav, P. (2016). Social transformation in post-conflict Nepal. A gender perspective. Routledge.