Courtenay W. Daum
Law enforcement has a lengthy history of policing LGBTQ communities. Throughout the 20th century, police utilized laws prohibiting same-sex sexual conduct to criminalize LGBTQ individuals, and to target public gathering places including gay bars. Sodomy prohibitions were supplemented by mental health diagnoses including assumptions about criminal pathologies among LGBTQ individuals and the government’s fear that LGBTQ individuals’ sexual perversions made them a national security risk to subject LGBTQ communities to extensive policing based on their alleged sexual deviance. The successes of the gay rights movement led the American Psychiatric Association to declassify homosexuality as a mental health disorder in the 1970s, and the U.S. Supreme Court’s decision that prohibitions on sodomy run afoul of the Constitution ended the de jure criminalization of LGBTQ individuals based on their sexual conduct.
Today, policing of LGBTQ communities consists of both overpolicing and underenforcement. Law enforcement regularly profiles some facets of LGBTQ communities in order to selectively enforce general criminal prohibitions on public lewdness, solicitation, loitering, and vagrancy—consistent with the goals of “quality of life” policing—on gay men, transwomen, and LGBTQ youth, respectively. The selective enforcement of these laws often targets LGBTQ people of color and other intersectionally identified LGBTQ individuals in order to criminalize their existence based on ongoing stereotypes about sexual deviancy. In addition, police regularly fail to recognize LGBTQ individuals as victims of crimes, with the exception of particularly heinous hate crimes, and do not adequately attend to their needs and/or subject them to secondary victimization. As such, the relationship between many LGBTQ communities and law enforcement continues to be characterized by antagonisms and mistrust.
The Canadian LGBT movement has had enormous success in gaining political and legal recognition for sexual minorities—as much as any of its sister movements in other countries. This is especially remarkable because the sexual repressiveness of the Canadian social and political climate remained largely in place until the 1990s. And although activist groups across the country have had challenges in marshalling resources, mobilizing beyond the regional level, and overcoming internal inequities, advocacy pressure has been effective enough to produce a political sea change with few precedents in other issue areas. Starting in the 1990s, Canada experienced a country-wide “takeoff” in the formal recognition of sexual diversity, most dramatically in the legal status given to same-sex relationships. Even if a vocal minority of the general public opposed such moves, the acceptance of sexual minorities as legitimate members of the Canadian mosaic has become politically normalized.
Sexual diversity is far from being fully accepted, and those communities traditionally under-represented in the LGBT movement still face marginalization in a period of growing socioeconomic inequality. But the movement has made impressive gains, aided by social and institutional factors that have allowed activist leverage when the political winds blew in their favor. This success, however, presents new challenges, creating complacency within and beyond LGBT circles and increasing the difficulty of mobilizing people and resources.
The decline of religiously conservative opposition to the public recognition of sexual diversity in Canada has also created room for the movement to become more fragmented than it has been in the past. And yet there is still much need for advocacy. Socially conservative politicians are still pandering to public anxiety about recognizing sexual diversity. Activist attention is still needed in areas such as schooling, policing, social service provision, and immigration. Trans people, “two-spirited” Indigenous people, and sexual minorities within Canada’s large ethnocultural and religious minorities are often on the margins of their own communities, the broader society, and the LGBT movement itself.
From the early 1970s through the mid-2000s, the Canadian movement’s trajectory was similar to activism elsewhere. A “liberationist” period generated a long-lasting strand of radicalism alongside a slowly growing current focused on seeking rights through mainstream political channels (Adam, 1987, 1999). The analysis to follow first points to distinctive elements of the Canadian social and political context and then traces the evolution of what would become the LGBT movement from these early stages and into a period of legal and political “takeoff.” It points to strong commonalities in movement agendas, even across imposing regional lines, but also recognizes the challenges of mounting coherent movement responses to remaining inequities in a political environment so marked by activist success.
The question of membership and belonging is widely recognized to have been at the root of many political crises in Africa since independence. The legal frameworks for citizenship were largely inherited from the colonial powers and still show strong affinities across colonial legal traditions. However, most African states have enacted significant amendments to citizenship laws since independence, as they have grappled with issues of membership, aiming to include or exclude certain groups. Substantive provisions have diverged significantly in several countries from the original template. African states have shared global trends toward gender equality and acceptance of dual citizenship. In relation to acquisition of citizenship based on birth in the territory (jus soli) or based on descent (jus sanguinis), there has been less convergence. In all countries, naturalization is inaccessible to all but a few. Manipulation of citizenship law for political purposes has been common, as political opponents have at times been accused of being non-citizens as a way of excluding them from office, or groups of people have been denied recognition of citizenship as a means of disenfranchisement. Moreover, even in states where a substantial proportion of residents lack identity documents, it seems that the rules on citizenship established by law have themselves had an impact on political developments.
The citizenship status of many thousands of people living in different countries across Africa remains unclear, in a context where many citizens and non-citizens lack any identity documentation that records their citizenship. The content of the law is arguably therefore less influential than in some other regions. A rapid development in identification systems and the increasing requirement to show identity documents to access services, however, is likely to increase the importance of citizenship law.
In response to these challenges, the African continental institutions have developed, through standard setting and in decisions on individual cases, a continental normative framework that both borrows from and leads international law in the same field.
The International Criminal Court (ICC) has generated considerable controversy since it came into force in 2002, principally because of its overriding focus on African conflict situations and suspects. This has led to accusations that the ICC is a neocolonial meddler in African affairs, wielding undue and unaccountable influence over the domestic political arena. Drawing on the author’s field research in Uganda and the Democratic Republic of Congo since 2006 this article contends that the neocolonialism critique of the ICC exaggerates the power of the Court while underestimating the capacity of African states to use the ICC to their own ends. Delivering distanced justice from The Hague with limited expertise on African societies and spending scant time in the field, the ICC has failed to grapple sufficiently with complex political dynamics “on the ground.” Combined with the Court’s heavy reliance on state cooperation, these factors have enabled African governments to use the ICC to target their political and military enemies while protecting themselves from prosecution. This has also emboldened African states in continuing to commit atrocity crimes against civilians, especially during periods of mass conflict and fraught national elections. While claiming to hover above the political fray, the ICC has become heavily politicized and instrumentalized by African states, with lasting and damaging consequences for the practice of national politics across Africa. To avoid being willfully used by African governments, the ICC must bolster its political expertise and become politically savvier. Rather than claiming to be neutral while hovering above the domestic terrain, the ICC must embrace its inherently political nature and deliver justice in a way that improves rather than undermines the practice of national and community-level politics across Africa.
Land-related disputes and land conflicts are sometimes politicized in elections in African countries, but this is usually not the case. Usually, land-related conflict is highly localized, managed at the micro-political level by neo-customary authorities, and not connected to electoral competition. Why do land conflicts sometimes become entangled in electoral politics, and sometimes “scale up” to become divisive issues in regional and national elections? A key determinant of why and how land disputes become politicized is the nature of the underlying land tenure regime, which varies across space (often by subnational district) within African countries. Under the neo-customary land tenure regimes that prevail in most regions of smallholder agriculture in most African countries, land disputes tend to be “bottled up” in neo-customary land-management processes at the local level. Under the statist land tenure regimes that exist in some districts of many African countries, government agents and officials are directly involved in land allocation and directly implicated in dispute resolution. Under “statist” land tenure institutions, the politicization of land conflict, especially around elections, becomes more likely. Land tenure institutions in African countries define landholders’ relations to each other, the state, and markets. Understanding these institutions, including how they come under pressure and change, goes far in explaining how and where land rights become politicized.
Nathan C. Walker
A society’s political and legal treatment of religion is a distinct indicator of the health of a democracy. Consequently, high levels of political and legal contempt for religion in the United States can be an indicator that partners in American democracy may be going through a divorce. By drawing upon studies that measure voter attitudes and behaviors, as well as research that tracks the levels of social hostilities and violence toward religion, students of democracy see into two of society’s most revealing mirrors: political rhetoric and the nation’s laws. These reflections can unveil powerful questions about the true character of a nation: will democracy rule from a place of contempt for the religious other, or from a state of passive political tolerance, or from a constitutional commitment to actively protect the rights of those with whom we disagree? Theories of political tolerance and psychological studies of contempt prove helpful in examining contemporary levels of religious animosity in politics and law. The Religious Contempt Scale, as introduced in this essay, gauges a society’s willingness to tolerate the religious other. When special attention is given to the frequency and degrees of severity of expressions of contempt, it becomes clear that contempt has political utility: to motivate the intolerant to gain access to power and, in turn, to motivate those who are intolerant of intolerance to remove them.
Peter J. Dixon
Reparations are among the most tangible, victim-centric, and personal of processes in the transition from violence to peace, symbolizing the recognition that an individual has been harmed and has rights in the eyes of the state or international community. Reparations are also an inherently political project, transforming official visions of violence, responsibility, and victimization into material and psychological benefit. Despite the power of reparations to shape transitions from violence to peace, they have been too often ignored in practice, leaving most victims of gross violations of human rights and serious violations of international humanitarian law without reparation. Partly as a consequence, research has tended to focus more on “harder” processes, like trials and truth commissions, than on the “stepchild of postconflict justice.” Yet, there have been significant developments in reparations theory and practice that motivate key outstanding questions for researchers.
Reparations derive their symbolic power from the law, which is an imperfect tool for responding to the varied forms of violence experienced in conflict and to the diverse, sometimes contradictory, priorities and needs that people hold. In such contexts, there is an inherent tension between expanding reparations programs to be inclusive and adaptable and preserving their fundamental distinction as a justice process. This is a difficult balance to strike, but there are frameworks and questions that can offer useful guidance. In particular, the lenses of economic violence and positive peace are useful for articulating the role of reparations in postconflict transitions, offering conceptual expansion beyond transitional justice’s traditional concern for political violence without delving too far into the customary terrain of development or postconflict reconstruction.
Yet, the specific mechanisms through which the inward and outward feelings and attitudes and broader social changes that reparations are expected to produce remain undertheorized in transitional justice scholarship, in large part because of a lack of empirical evidence about how recipients experience them in practice. Does the restoration of civic trust, for example, depend upon recipients of individual reparations telling their neighbors about their payments? Does recognition as a citizen depend upon a beneficiary publicly self-identifying as a victim? Questions like these about the particular variables that drive reparations outcomes represent the next frontier for transitional justice researchers interested in the role of reparations in the transition from violence to peace.
Cyanne E. Loyle
Armed conflict is ultimately about the violent confrontation between two or more groups; however, there is a range of behaviors, both violent and nonviolent, pursued by governments and rebel groups while conflict is ongoing that impacts the course and outcomes of that violence. The use of judicial or quasi-judicial institutions during armed conflict is one such behavior. While there is a well-developed body of literature that examines the conditions under which governments engage with the legacies of violence following armed conflict, we know comparatively little about these same institutions used while conflict is ongoing.
Similar to the use of transitional justice following armed conflict or post-conflict justice, during-conflict transitional justice (DCJ) refers to “a judicial or quasi-judicial process initiated during an armed conflict that attempts to address wrongdoings that have taken or are taking place as part of that conflict” (according to Loyle and Binningsbø). DCJ includes a variety of institutional forms pursued by both governments and rebel groups such as human rights trials, truth commissions or commissions of inquiry, amnesty offers, reparations, purges, or exiles.
As our current understanding of transitional justice has focused exclusively on these processes following a political transition or the termination of an armed conflict, we have a limited understanding of how and why these processes are used during conflict. Extant work has assumed, either implicitly or explicitly, that transitional justice is offered and put in place once violence has ended, but this is not the case. New data on this topic from the During-Conflict Justice dataset by Loyle and Binningsbø suggests that the use of transitional justice during conflict is a widespread and systematic policy across multiple actor groups. In 2017, Loyle and Binningsbø found that DCJ processes were used during over 60% of armed conflicts from 1946 through 2011; and of these processes 10% were put in place by rebel groups (i.e., the group challenging the government rather than the government in power).
Three main questions arise from this new finding: Under what conditions are justice processes implemented during conflict, why are these processes put in place, and what is the likely effect of their implementation on the conflict itself? Answering these questions has important implications for understanding patterns of government and rebel behavior while conflict is ongoing and the impacts of those behaviors. Furthermore, this work helps us to broaden our understanding of the use of judicial and quasi-judicial processes to those periods where no power shift has taken place.