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.

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

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).

Masculinities Perspectives

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).

Queer Perspectives

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).