Author Shana Tabak Responds to Comments from Ruti Teitel & Vasuki Nesiah

[Shana Tabak is a Visiting Associate Professor of Clinical Law at The George Washington University Law School, where she is also a Friedman Fellow with the International Human Rights Clinic. She is the author of False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia, 44 N.Y.U. J. Int’l L. & Pol. 103 (2011).]

I’m very grateful to Professors Ruti Teitel & Vasuki Nesiah for taking the time to respond to my article, False Dichotomies of Transitional Justice. They have both offered generous comments and insights, and I’d like to offer a few brief words in response.

Professor Teitel highlights that questioning the role that gender ought to play in transitional justice may, in and of itself, generate alternative perspectives on conflict. I couldn’t agree more with this assertion; one of the central goals of my article is that scholars and practitioners ask not only the “gender” question, but also ask, (with thanks to the scholarship of Mari Matsuda) the “other” question, thereby considering what other normative structures may be intertwined with gender as a society seeks to re-define itself as it emerges from conflict.

In referencing Catharine MacKinnon’s recommendation that the law of war might provide leverage with which to surpass common gendered dichotomies within domestic attempts to implement transitional justice, Teitel provides an important reminder of the ways in which legal systems interact with and build upon one another. Due to its explicit references to gendered violence, the international law of war “humanizes” women from a legal perspective, and this simple recognition can itself transform traditional approaches that transitional justice mechanisms may, unwittingly, rely upon as I discuss throughout this article. Certainly this recognition is one that must be sought within a transitional justice scheme; it also demonstrates the ways in which progress regarding the role of gender in transitional justice may be incremental and context-specific. In the synthesis of gendered approaches to transitional justice that I outline in my article, I attempt not to undermine the importance of the revolutionary yet basic recognition that women are “human.” Instead, I demonstrate that this may be the starting point for transitional justice, and that mechanisms must build upon these advances and aspire to do more. They must not rely exclusively on mechanisms of the law of war, which may reinforce women’s positioning solely as victims, may relegate men to the position of perpetrators, and may neither fully encompass the reality of either nor challenge preconceived norms regarding gender.

In her post, Professor Nesiah challenges the manner by which gender-oriented scholarship best offers policy proscriptions, and expresses concern that specific revisions to transitional justice or DDR may undermine critical theory’s broader and more ambitious project of restructuring the normative role of gender in society.

In offering a gender-oriented critique, my article’s use of critical perspective, critical though it may be, is rooted in the notion that transitional justice is not merely a theoretical approach, but must seek to provide commentary on and proscribe remedies for the real-world issues it identifies. I offer critique that attempts to encompass the theoretical and the tangible, and recognizes the ways in which a gender critique complicates how the work of transitional justice is done. Despite my article’s rigorous analytical examination of three false dichotomies within transitional justice, I aim for this article to also provide guidance for the design and implementation of transitional justice mechanisms.

Therefore, I don’t share Nesiah’s claim that a gender-oriented critique must be poised with fangs ready to attack any tangible revisions, large or small, to transitional justice mechanisms. In adopting a gender-oriented approach, I offer some critique to previous approaches of transitional justice, but I also express a great debt to those scholars who developed means of seeking human rights accountability for all genders, such as the legal scholars who, after centuries of it being a reality of wartime, finally defined rape as a crime of war.

To be clear, however, my article offers more than simple policy prescriptions or deference to re-legitimization of the state, arguing that it is crucial that transitional justice must “actively resist simply re-cementing societal relationships that laid the groundwork for conflict in the first place.” I agree with Nesiah’s claim that a gender-oriented critique calls attention to the normalization of structural violence as well as structural economic inequities. I emphasize these topics through exposure of traditional transitional justice mechanisms’ reliance on the public / private dichotomy, which may highlight violations of civil and political rights, while neglecting economic and social rights violations which may be more acutely felt by both male and female victims.

I’ve truly enjoyed the opportunity to have a virtual discussion with these two scholars whose work has so influenced my own thinking on this topic, and I look forward to future comments and conversations.