Symposium on Reframing Transitional Justice: Race, Gender, and the Architecture of Redress

[Saheli Chakraborty is an Assistant Professor at The West Bengal National University of Juridical Sciences, India.]

Mark Drumbl and Kirsten Fisher’s Reframing Transitional Justice bears a striking resemblance to the animating image from Salvador Dalí’s The Persistence of Memory, a work that distorts the visible surface, warping the underlying reality without fully obscuring it. This is an apt representation of the field in which formal categories such as the victim, transition, reparation, and perpetrator refract the harms being channelled through them into unrecognisable shapes. 

Part III of the book titled “Refractions: Gender, Race, Authoritarianism”, is the volume’s fulcrum argument, where the central intervention sharpens into the clearest and most compelling focus on gender and race. If the preceding Parts examined whether transitional justice mechanisms can adapt to accommodate emerging technologies and volving categories of harm, Part III poses an unsettling question: whether transitional justice’s paradigmatic assumptions, founded upon a bounded conflict and identifiable victim class, were ever adequate to the diverse range of harms that gender and race could actually produce? This part of the book gathers four distinct chapters, arguments and perspectives that each, in their own register, provide insight into what transitional justice can be visualised as, gaging from their lens.  

Tiffany Atkins makes a case for abolishing the American family policing system rather than reforming it. Loyce Mrewa and Kirsten Campbell’s chapters are rooted in the cornerstone of gender and the transitional justice paradigm, with Mrewa situating the chapter in the post-conflict era and examining the Liberian peace huts as a women-led, neo-traditional mechanism to address gender-based violence (hereinafter referred as GBV). Interestingly, Campbell, in her chapter, traces the evolution of the Women’s Court in the Former Yugoslavia, which she credits to feminist civil society for laying the foundation stone of the judicial body, rather than to the state or any international mandate. These three chapters together model a shared and unappreciated insight. In contrast, the concept of ‘justice’ that addresses gender and racial harm often needs to be established from beneath existing institutions rather than argued into them.    Each of these chapters asks a version of the same question, from the diverse institutional vantage point: What does it mean to pursue justice for racial or gender harm, when the harm in question is consistent, structural and embedded in the ordinary operation of a state or a post-conflict society, instead of confining to a discrete, identifiable atrocity with a clear beginning and end?

Finally, C. William Vardy closes this section of the book by navigating the vocabulary of ‘transitional justice’ as a framework for truth-telling, identifying violations, sanctions, and symbolic reparations that can be adapted for adoption by governments. This comparative chapter primarily bases its arguments on Hungary and India. However, this commentary does not review this chapter as part of the focal theme of it. 

Atkins’s chapter offers the most explicit articulation of an abolitionist critique directed at a functioning state institution, illustrating a theorised, direct engagement with race. She claims that the American family policing system, the network of child protection services, family courts and the associated stakeholders have become grossly entangled with structural racial subordination, particularly towards Black and the indigenous families, so that any further incremental reform is no longer a coherent response. She states that only the abolition of the existing system, coupled with sustainable investment, makes the respective families stable in the first place and extends a genuine path to non-recurrence. This is a scholarly, demanding argument. However, Atkin carefully distinguishes it from simple re-regulations, in which abolition means replacing a punitive architecture with a supportive one, without withdrawing support altogether. This chapter draws on extensive empirical work on disproportionate surveillance and removal rates to demonstrate that these harms are rooted in the system, which is neither accidental nor exceptional, but load-bearing, thereby licensing the abolitionist rather than reforming conclusion. She is candid in acknowledging that abolition would be a generational process rather than a singular, isolated legislative intervention. 

What makes this chapter valuable in the realm of broader debates on transitional justice, and for readers, is Atkin’s refusal to wait for the dawn of the transitional moment at all. She vehemently rejects the paradigm shift from the assumption that ‘justice’ must await a moment of political transition. In the conventional sense, Family policing has not been understood as part of a product of war. It operates in the ordinary form of governance, executed through  routine administrative case files. Therefore, this chapter lays a conceptual foundation for Part III by demonstrating that consistent racial harm on an everyday basis demands a similar array of structural rethinking that transitional justice ordinarily associates with the aftermath of mass atrocities. Aligning with the central propositions of this chapter on ‘race’, the next two chapters traverse towards the vantage point of gender. 

Mrewa’s chapter builds on the related theme from a divergent institutional context, marking the earnest starting point of the section’s sustained engagement with gender. This chapter illustrates the evolution of the Liberian peace huts as institutions of mediation that are women-led, community-based, and have assumed a significant role in addressing GBV during the officially designated ‘Post-Conflict’ period. This women-led juridical mechanism was established without the formal establishment assent of Liberia’s formal transitional justice architecture, following the civil wars and unrest.  This chapter, drawing upon interview data and doctrinal methodology, explores how the peace-huts promote gender justice. It analyses both the promises and the limits of this model. Where the formal justice system has proven inadequate, the author claims that these peace huts have provided women with a durable, local, legitimate forum for seeking redress. Simultaneously, the chapter also draws much attention to the limitations of their understanding and defining redressal harm, including the tension around the heteronormative assumptions embedded in the kinds of violence and harms that are skilled and equipped to recognise or address. For illustrations, Mrewa identifies that the peace-huts are not eligible to mediate the sexual conduct that amounts to criminal acts, as that is encompassed under the penal code. Through the extensive interview-based research, the chapter identifies that most of the mediated GBV cases are of non-physical forms, including domestic violence, child support arrangements, and physical fights between the youth. 

This form of institution, which is informal, community-based, women-led, and operates in parallel with the state-assisted juridical body, is significant at the grassroots level in mediating and resolving gender-based disputes that the formal justice system may address slowly, or in some cases not at all. However, Mrewa raises the pertinent issue around the accessibility, inclusivity and intersectionality of such peace-huts. She points out that there has not been a single case mediated by her sample data where a complaint involved a member of the LGBTQI+ community, despite the vulnerability and discrimination being highest towards these groups. 

This experience raises a broader question: not whether the informal, non-state mechanisms of justice should fall within the scope of transitional justice, but rather what institutional feature enables them to broaden opportunities to redress the same wrongs? This chapter navigates these answers through Liberia’s peace huts, where much depends on who leads the institutions and to what extent they serve accountability to the communities of women.

Campbell’s chapter draws on the theoretically ambitious theme of the Women’s Court of the Former Yugoslavia. Established from the ground up by feminist civil society, this court functioned without a state or international mandate. Interestingly, this body adopted an evidentiary and narrative framework distinct from those employed by the recognised international criminal tribunals and the standard international instruments that shape guidance on GBVs.  

Campbell illustrates how the court perceives GBV through the personal experiences and testimonies of the survivors themselves, rather than imposing them into categories that have been pre-determined by international law. She also mentions the collective and public process of hearing survivors’ testimony as a form of justice, independent of any subsequent prosecution or formal legal outcomes. This chapter contends that transformative justice requires the development of new institutions and practices, rather than merely extending decorative tokenism by incorporating gender-sensitive language into existing structures. This argument, the fulcrum of this chapter, though, takes a divergent view of ‘transitional justice’ and draws a parallel to Atkin’s chapter, which also rejects meagre reformative steps in the American family policing system. Campbell calls for a broader understanding of transitional transformative justice embedded in the transformative practices within processes of social change in both times of peace and conflict. Perhaps, this shapes the widely applicable insight of this section of the book. 

Campbell offers an interesting read by expanding the conventional understanding of what may constitute an ‘institution’ within the scope of transitional justice. Much of relevance may also be drawn from the arguments extended by Mrewa. This part of the chapter makes a significant contribution by stating that the courts and the commissions established by states or international organisations, which are unable or unwilling to accommodate particular kinds of testimony and harms due to their substantive or procedural mandate, may be effected by an alternative model of redress that the form of civil-society-led structures.  Thus, this chapter develops a framework for recognising such initiatives as a transitional justice practice, as an entity in their own right, rather than merely as a prelude to formal state action. 

Cumulatively, Atkins, Mrewa and Campbell reveal a single theoretical thread across race and gender: Justice is posited as a quest created by those directly affected by the harm, rather than dispensed by institutions not originally established to provide distinct protections. Under this approach,  justice is established and validated by the community experiencing the harm, rather than a formal entitlement disseminated by any neutral institutional incorporating an universal template of ‘justice’ 

Atkins incorporates this insight into the broader architecture of the state, mooting that where institutions are fundamentally intertwined with the harms meant for redress, their reformation or revision in isolation cannot disrupt the long, consistent cycle. Their replacement may be the solution instead. Mrewa and Campbell, basing their chapters on gender, have extended this argument by examining alternative structures developed by the communities themselves, such as peace huts or women’s courts. These parallel initiatives are not provisional measures awaiting formal state intervention but rather illustrate an autonomous form of justice dissemination, shaped by its own norms and mechanisms of accountability to the people. 

None of these authors presents a flawless alternative institution or suggests a lasting replacement of the formal juridical mechanism. Instead, they are candid about the limitations of the informal, civil society-led justice system when it is asserted to function autonomously. This acknowledgement of the constraints balances the analysis, rather than basing them as merely aspirational claims. The chapters advance a similar argument, in which justice, understood through the experiences of gender and race, often needs to be constructed from within and beneath existing structures, rather than demanding the same. 

Photo attribution: Pete Willis on Unsplash