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Chevron in Ecuador: Doug Cassel Responds to Kevin Jon Heller

by Doug Cassel

[Doug Cassel is Professor of Law at Notre Dame Law School]

Heller’s reply misses the point of my post, Suing Chevron in Ecuador: Do the Ends Justify the Means? I did not ask whether Chevron is an “innocent victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental remediation) justify their means (making covert payments to the court’s “independent” expert from their “secret account,” writing his report and then lying about it, meeting secretly with the judge in an abandoned warehouse, etc.).

I answered, “No.” Human rights lawyers cannot vindicate rights by trashing the rights to due process and fair trial. Doing so undermines our moral and professional credibility.

I hold that view as a career human rights lawyer, not (in Heller’s ad hominem) as an “advocate for Chevron.” My post linked to my longer open letter, which made explicit that I billed Chevron for representing it on an amicus brief, but not for the time entailed in writing the open letter.

Heller’s “other side of Chevron” consists of a series of erroneous, tendentious or unsupported accusations, based almost entirely on press statements by plaintiffs’ PR operatives. In the order he raises them: (more…)

The Other Side of Chevron

by Kevin Jon Heller

In his recent guest post, Doug Cassel attempts to portray Chevron as the innocent victim of illegal and unethical conduct by the lawyers for the plaintiffs harmed by its predecessor’s dumping of 16.8 million gallons of crude oil and 20 billion gallons of toxic waste into the Ecuadorian rainforest.  Cassel writes as an advocate for Chevron, so he can hardly be expected to discuss both sides of the story.  It is thus critically important to understand the reprehensible behavior that Chevron has engaged in from the earliest days of the litigation.  Here, in no particular order, are some highlights:

1. Chevron has repeatedly lied about the environmental damage caused by its dumping — damage just as repeatedly documented by its own internal audits.

2. Chevron fraudulently altered a report that they gave to their paid scientific consultants in order to hide the fact that they had engaged in dishonest sampling practices in the affected areas (deliberately sampling only areas predetermined to be clean).

3. Chevron has used a secret lab in the United States to hide dirty samples taken from the affected areas.

4. Chevron lawyers have been indicted in Ecuador for making false claims about Chevron’s fake “remediation” of affected sites — which included paying Ecuadorians to build houses on top of dirty sites so they could not be tested.

5. Chevron’s paid scientific consultants misrepresented epidemiological studies linking Chevron’s dumping of waste to health problem in the affected area.  (See this letter signed by 50 leading scientists from all over the world.)

6. Chevron has tried to bribe the Ecuadorian government into quashing the case.

7. Chevron threatened the presiding judge in the case with jail time if he did not rule in favor of the company.

8. Chevron tried to entrap a sitting judge into taking bribes, doctored videotapes that recorded the scheme, and then paid the individual involved a great deal of money to keep quiet.

9. Chevron attorneys have been sanctioned in U.S. courts for abusing the discovery process, including taking depositions in order to harass witnesses, and for filing vexatious lawsuits against lawyers for the plaintiffs and against filmmakers who have documented the damage Chevron has caused.

These examples could be multiplied indefinitely.  But I think they are enough to rebut Cassel’s attempts to portray Chevron as the innocent victim in the case.

Suing Chevron in Ecuador: Do the Ends Justify the Means?

by Doug Cassel

[Doug Cassel is Professor of Law at Notre Dame Law School]

In an environmental suit brought by lawyers for some residents of the Amazon, an Ecuadorian court last year issued an $18.2 billion judgment against Chevron. Readers who follow the case only casually may have the impression that this is a classic case of David vs. Goliath, and that Ecuadorian courts gave Goliath his come-uppance.

That impression is understandable. The plaintiffs’ lawyers and associated NGO’s wield an impressive PR operation. The banner headline of their web site tells readers:

Over three decades of oil drilling in Ecuador’s Amazon, Chevron dumped billions of gallons of toxic waste into waterways relied on by local inhabitants. The result: A humanitarian and public health crisis affecting thousands, which Chevron refuses to put right.

There are at least five problems with that headline:

  • Chevron never drilled a drop of oil in Ecuador. Its only connection is its purchase in 2001 of a Texaco subsidiary, TexPet, whose oil operations ended a decade earlier;
  • The only company drilling – and spilling – oil since 1992 has been the Ecuadorian State company, which plaintiffs promised not to sue;
  • The $18.2 billion was awarded, not as damages for past harm to health, but mainly to fund environmental remediation. Yet plaintiffs’ experts admitted to their lawyers that contamination is “just at the pits and stations and nothing has spread anywhere at all;”
  • The oil pits and stations have been or are being remediated. Whatever work remains to be done could not remotely approach even $1 billion, let alone $18 billion; and
  • Chevron has repeatedly stated that it is open to constructive dialogue to resolve the legal controversy and to benefit Amazonian residents, but it is not open to judicial extortion.

Chevron Ecuador Dispute Heats Up

by Roger Alford

This week was a blockbuster one in the ongoing battle between Chevron and Ecuador. On Wednesday, the arbitral tribunal adjudicating Chevron’s BIT claim issued an Interim Award ordering Ecuador “to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against [Chevron] in the Lago Agrio Case.”

The tribunal was at pains to emphasize the interim award was final and binding under Article 32 of the UNCITRAL Rules, which means that Chevron could pursue recognition and enforcement of the award in jurisdictions around the world. It could do so offensively by seeking declaratory relief in Ecuador (or elsewhere), or defensively in response to an attempt by the Ecuador plaintiffs to seek enforcement of the Ecuador judgment. Of course, the Interim Award is only binding on Ecuador and Chevron, so it is not clear what a domestic court outside Ecuador would do with an award imposing injunctive relief on Ecuador.

Meanwhile, yesterday the Second Circuit issued its long-awaited opinion in Chevron v. Naranjo. The Second Circuit’s crucial holding was that New York’s Uniform Foreign Money-Judgments Recognition Act precludes declaratory injunctive relief by a foreign judgment debtor. “There is … no legal basis for the injunction that Chevron seeks, and, on these facts, there will be no such basis until judgment-creditors affirmatively seek to enforce their judgment in a court governed by New York or similar law.”

The Second Circuit had little sympathy for Chevron’s attempt to pursue an antienforcement injunction, particularly given the comity concerns at stake.

“[W]hen a court in one country attempts to preclude the courts of every other nation from ever considering the effect of that foreign judgment, the comity concerns become far greater. In such an instance, the court risks disrespecting the legal system not only of the country in which the judgment was issued, but also those of other countries, who are inherently assumed insufficiently trustworthy to recognize what is asserted to be the extreme incapacity of the legal system from which it emanates. The court presuming to issue such an injunction sets itself up as the definitive international arbiter of the fairness and integrity of the world’s legal systems.”

But at the same time, the Second Circuit emphasized that it expressed “no views on the merits of the parties’ various charges and counter-charges regarding the Ecuadorian legal system and their adversaries’ conduct of this litigation, which may be addressed as relevant in other litigation before the district court or elsewhere.” It also avoided any decision with respect to the underlying RICO claims that Chevron has filed against the Ecuador plaintiffs and their lawyers, focusing simply on the improper procedural device that Chevron sought to employ to enjoin enforcement of the Lago Agrio judgment abroad.

Where does the case go from here? In Ecuador, Chevron has appealed to Ecuador’s highest court to review the case. No word yet as to whether Chevron will seek to have the arbitral tribunal’s Interim Award recognized and enforced in Ecuador. The arbitral tribunal is scheduled to hold hearings on February 11-12 to determine what steps Ecuador is taking to prevent enforcement of the Lago Agrio judgment.

As for the Ecuador plaintiffs’ efforts to enforce the judgment, there is no indication that Chevron will post an appeal bond, which means that the Ecuador plaintiffs are free to pursue enforcement anywhere in the world where Chevron has assets.

It appears that the Ecuador plaintiffs will not seek to have the judgment enforced within the United States. Ecuador Plaintiffs’ lawyer James Tyrrell stated yesterday that “The Ecuadorean plaintiffs are not coming to New York to enforce this judgment.” Given the locus of Chevron’s assets, it is not obvious why the plaintiffs have adopted this strategy, unless they have reason to believe that there is a high probability that the judgment would not be enforced.

There is, of course, the option of pursuing enforcement abroad. If the Invictus Memo is reliable, the Ecuador plaintiffs have identified twenty-seven nations where Chevron has substantial activities, including countries that are friendly with Ecuador, such as Colombia and Venezuela. That memo candidly states the ultimate end game strategy for the Ecuador plaintiffs:

“After approximately seventeen total years of litigation in the United States and Ecuador, the case against Chevron now enters its most critical, multi-faceted, and labor intensive…. With the ultimate goal of effecting and swift and favorable settlement, the strategy of the Plaintiffs’ Team will incorporate the following components: … managing the public relations impact of Chevron’s manipulation of the Cabrera narrative … [and] identifying jurisdictions globally that are most hospitable to an enforcement action.”

Lago Agrio Ecuador Appeals Court Judgment

by Roger Alford

A certified English translation of the Lago Agrio Ecuador Appeals Court judgment, together with the original Spanish, was filed with the Second Circuit today and is available here.

A Question for Readers

by Kevin Jon Heller

I think there is little doubt where I stand on the merits of the Chevron litigation, so I am not going to get into the substance of the dispute here.  But I have an honest question that I am hoping someone will answer.  Let’s assume, for sake of argument, that Chevron is correct to argue that the $18 billion judgment was procured by fraud and corruption.  Let’s also assume that the appellate decision is affirmed by the highest court in Ecuador.  Under what legal theory does the Second Circuit have the authority to “stay enforcement” of the judgment outside of the United States?  (It obviously could prevent the plaintiffs from recovering from Chevron inside the U.S.)  The Second Circuit was skeptical that any such theory existed, as reported by

Judge Lynch in particular questioned again and again the power of a defendant to use New York’s Uniform Foreign Country Money-Judgments Recognition Act offensively as the basis for enjoining other enforcement actions around the world—rather than waiting to seek the anti-suit injunction as a defense to an actual recognition action brought by the plaintiffs in New York. How would New York courts react, queried Lynch, if a Venezuelan court used Venezuelan law to enjoin a Russian judgment holder from going to New York to enforce it? Should or would New York courts respect it?

Mastro conceded that he knew of no precedent for a defendant to proactively get a foreign anti-suit injunction under New York’s Recognition Act, as Chevron seeks to do. However, Mastro argued that there is mountainous evidence that the Ecuadorian judgment was procured by fraud, and the act aims to prevent vexatious litigation. He also argued that the Ecuadorian case is unique because, when the Second Circuit dismissed Chevron’s predecessor Texaco from an earlier filing under forum non conveniens, the company expressly reserved its defenses under New York’s Recognition Act.

This is not my area of law by any stretch, so readers’ thoughts would be most appreciated.

Chevron Files Second Circuit Motion for Emergency Relief

by Roger Alford

As Kevin noted yesterday, on January 3, 2012 an Ecuador Appeals Court affirmed the $18 billion judgment against Chevron in the long-running battle over environmental damage. (Available in English and the original Spanish here). According to an unofficial English translation of the sixteen page opinion, the Court dismissed all of Chevron’s arguments, including the allegations of fraud. Here is a taste:

As for the invalidity of the trial “for procedural fraud and violation of the guarantees of due process” it must be said that the record of the trial court reflects that the Defendants have exercised a vigorous and ample defense in the trial—the thousands of pages that bloat the trial have already been mentioned, in addition to this appeal and litigation; insinuating expert witnesses; requestioning and reexamining these same judicial auxiliaries, and to witnesses, visiting each and each one of the formalities given in the first trial. As such, the trial has been public and, from what can be seen, also transparent, with a horrifyingly uncommon temporal duration, and without a doubt, affecting the interests of those that drive the case, as since the action, more than eight years have passed in Ecuador alone; definitely putting into process the proof and the performances—all of them—requested by the parties in the investigative procedures….

Fraud and corruption were also mentioned, of officials, attorneys, and representatives, the issue of which this Court should not make any reference, only to leave emphasized that the same accusations can be found pending before authorities of the United States in the denouncement that has been presented the same here by the Defendant Chevron, under the RICO act, and the Court does not have competence to resolve the conduct of attorneys, expert witnesses, or other government employees or administrators and judicial auxiliaries, if that is the case….

The logical anticipated consequence, in the case of carrying out the request, was that it was impossible to rely on any expert, and resulted in not being able to have expert proof which paralyzed the trial; thus Chevron has acted up until the outer limits of its defense and the Court considers the particularly precarious situation which could doom the administration of justice should it be allowed during the controlling procedural moments and stages of the suit, making it depend on its decision in the advancing of the cases. The deeds made public considered in the judge’s decision at the first instance, and Chevron was condemned to pay trial costs for manifest bad faith, notorious and obvious; so much so that now suffice it to say that the procedural conduct of the defendant, few times seen in the annals of the administrator of Justice in Ecuador, were abusive to the point that, in terms of attitude, that the Court will not even dedicate any more writings to this portion of the decision, it would be an example of disastrous precedent for other litigants.

Following the judgment, plaintiffs’ attorney Pablo Fajardo indicated that Chevron is authorized to request clarifications of the appellate court decision within the next month or so. According to my conversation with plaintiffs’ representative Karen Hinton yesterday, if Chevron wishes to appeal to the Ecuador National Court in Quito, Chevron must post an appeal bond of approximately 10%, or $1.8 billion. Chevron itself contends that the appeal bond could be 100% of the judgment, forcing it “to deposit, with no likelihood of recoupment, billions into the very court system whose corruption and bias … render the Lago Agrio judgment unenforceable.“

Meanwhile Chevron has filed a motion with the Second Circuit this morning asking the Second Circuit to lift the temporary stay on the district court’s antisuit injunction. The Second Circuit’s principal concern that an antisuit injunction was not ripe has been obviated by the Ecuador Appeals Court judgment. “Without such relief, the [plaintiffs] will be able immediately to commence their extortionate plan to harass Chevron through multiplicative, vexatious enforcement proceedings expressly intended to disrupt the operations of Chevron’s affiliates in foreign countries.”

In its motion, Chevron argues that “The Ecuadorian appellate decision … does not purport to explain or even mention the extensive evidence that the Lago Agrio Judgment was ghostwritten by parties other than Judge Zambrano, who had secret access to the LAP’s internal, unfiled work product.” Among other things, Chevron argues that the Ecuadorian appellate judgment ignores (1) the extensive verbatim overlap between the judgment and the LAP’s unfiled “Fusion memo”; (2) the overlap between the judgment and the LAP’s unfiled record summary; (3) the LAP’s internal emails evidencing their plan to draft the judgment; and (4) expert linguistic testimony that the judgment was not written by Judge Zambrano.

Yesterday Chevron has also filed a motion with the UNCITRAL arbitration tribunal in The Hague requesting that panel to order Ecuador to inform the tribunal of the steps it intends to take to comply with the tribunal’s February 2011 order requiring Ecuador to prevent the Lago Agrio judgment from being enforced.

After almost two decades of litigation, the Chevron Ecuador judgment has reached the critical enforcement stage. The $18 billion question is whether the Second Circuit will stay enforcement of the Ecuador judgment, and if not, whether foreign courts will recognize and enforce the Ecuador judgment. Overshadowing it all is an investment arbitration that may require Ecuador to pay Chevron for any damages it has incurred from the enforcement of a judgment in violation of the Ecuador-United States bilateral investment treaty.

Chevron Loses Another Round in Ecuador (Updated)

by Kevin Jon Heller

Great news — an appeals court in Ecuador has upheld the $18 billion damages award imposed on Chevron for the damage caused by its deliberate dumping of more than 18 billion gallons of toxic waste-water in the country, known as the “Rainforest Chernobyl”:

The lawsuit deals with pollution of the rainforest by energy company Texaco, which Chevron bought in 2001.

Chevron denounced the appeals court’s decision and said it would continue to seek recourse in other courts outside Ecuador.

“Today’s decision is another clear example of the politicisation and corruption of the justice system in Ecuador,” Chevron said in an emailed statement.

The San Ramon, California-based company has previously alleged fraud in the case. The plaintiffs have also accused Chevron of defrauding the Ecuadorean court to hide the scale of the oil contamination.

By the time of last year’s judgment the case had been winding its way through US and Ecuadorean courts for more than 17 years.

The suit was originally filed in a New York federal court in 1993 against Texaco and dismissed three years later after the oil company argued that Ecuador was the proper venue to hear the case. It was refiled in Ecuador in 2003.

Though it had only 47 named plaintiffs, the lawsuit sought damages on behalf of 30,000 people for environmental contamination and illnesses that allegedly resulted from Texaco’s operation of an oil consortium from 1972 to 1990 in the rainforest.

Notice the bolded text — it was Texaco/Chevron that wanted the case heard in Ecuador, not the plaintiffs.  Of course, the company wanted the case heard in Ecuador on one condition: that it win.  Now that it is losing in Ecuadorian courts, the system is corrupt and other courts should hear the case.  Because any court that rules against Chevron is by definition corrupt.  After all, everyone knows that Chevron always litigates in good faith, as The Guardian explained last year

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

by NYU Journal of International Law and Politics

[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.

Ruti Teitel Responds to Shana Tabak

by NYU Journal of International Law and Politics

[Ruti G. Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School.]

I am happy to join the conversation on Shana Tabak’s “False dichotomies of Transitional Justice Gender, Conflict and Combatants in Colombia,” forthcoming in the next issue of the NYU Journal of International Law & Politics. Tabak’s article is a thoughtful meditation on the difficult issues surrounding gender conflict and justice with specific reference to the ongoing situation in Columbia. Her article is an example of recent scholarship e.g., On the Frontlines (OUP 2011) that draws attention to the place of gender in considerations of transitional justice in conflict and

The contribution of the article is in its critical challenge to any simplistic approach to the question of what role gender ought to play. Indeed as Tabak notes the scholarship in this area all too often suffers from false dichotomies of war/peace: conflict/postconflict; male/ female; ordinary /transitional. Indeed, one might add the core dichotomies that relate to the problem of reconciling law and change. Prior to publishing Transitional Justice (2000) I coined the term in order to evoke the dual nature of the challenge of promoting rule of law and justice in political transition—both forward-looking and backward-looking at the same time.

But once these false dichotomies are conceded, where does gender belong in the project of transitional justice? The question in Tabak’s words is “What might a genuinely feminist version of transitional justice look like?” She anchors her critique on the specifics of the Colombian conflict and the significant participation of women in that conflict as combatants. Women find themselves on all sides of conflict—gender cuts across the victim-perpetrator divide. This crucial reality in Tabak’s view was not sufficiently recognized in Colombia’s Justice and Peace Law providing for demobilization but which lacked gender specificity and therefore failed to adequately account for and support former female guerrilla forces in the post conflict period. Instead, Tabak argues for a continuum of possibilities including more “holistic” solutions that may well venture beyond the confines of the law and its modalities, to get beyond the categories of victim-perpetrator, and consider impact more broadly on the community.

Still, one cannot help but wonder if the importance of this question of what role gender ought to play in situations of conflict and post/conflict couldn’t itself generate alternative perspectives on what counts in this context. Indeed, noted feminist Catherine Mackinnon argues in recent work that women ought to turn to the law of war, and related international legal space that might enable getting beyond the usual dichotomies that plague “domestic” law. For, after all, it is the law of war that explicitly addresses gendered violence (consider the International Criminal Court’s Rome Statute criminalizing sexual violence as both a “war crime” and a “crime against humanity.”). Beyond, that the law of war contemplates enforcement mechanisms, as well as for recognition of change in status and treatment in violent conflict’s aftermath. Here, one might think of East Timor where post conflict status contemplated a move from combatants to “veterans” thus laying the basis for shared status and recognition with men as well as offering a basis for pensions and other added support. As I argue in my new book Humanity’s Law (OUP 2011), the turn to international humanitarian law may well reframe the ordinary gender-related dichotomies so to draw attention to women’s humanity under the law—such a move rendering them human juridically speaking and in this way the international legal regimes and fora though they may seem to involve distant conflicts may also lay the basis for changed status and recognition that might have spillover transformative effects at home.

From False Dichotomies to a Real One: A Response to Shana Tabak by Vasuki Nesiah

by NYU Journal of International Law and Politics

[Vasuki Nesiah is an Associate Professor of Practice at NYU’s Gallatin School of Individualized Study.]

From manufacturing petrol bombs in their homes in Northern Ireland to planning assassinations in Colombia, female combatants confound received scripts of gender and war. Shana Tabak’s article challenges the analytical frameworks deployed by orthodox approaches to transitional justice, lays out an alternative framework that she situates in critical ‘gender oriented’ scholarship and then draws from this framework to enter the world of female combatants. For Tabak this alternative framework highlights problems with orthodox transitional justice approaches to female combatants but also suggests policy directions for how we may reform transitional justice to better serve these combatants.

Significantly the challenge to orthodox approaches is in fact a challenge to two strands – both a gender-neutral strand, and what we may describe as a “traditional” feminist strand invested in female victimhood. I found Tabak most helpful in exposing the arenas of convergence between these two strands. While traditional feminism often sees itself as opposing the ‘gender neutral’ approach, Tabak reveals that the gender neutral strand and the traditional feminist strand share background assumptions regarding the dichotomies between conflict and non-conflict, victims and perpetrators, and even public and private. Equally, Tabak was helpful in systematically outlining key insights of critically oriented feminist scholarship – what she identifies as ‘gender-oriented approach to transitional justice.’

I part company with Tabak when she moves from this mapping of debates to an analysis of female combatants in Colombia. It is indeed the case that these issues challenge orthodox transitional justice. However, the implications of critical feminism may not fall neatly into the policy prescriptions that Tabak highlights. Tabak suggests that if we recognize that gender neutral DDR programs and interventions premised on women as victims do not address the issues of female combatants then we are unlikely to encourage demobilization, empower demobilized women combatants in their civilian lives or engender civic trust. Rather, she suggests that transitional justice interventions have to become more ‘holistic’ and multifaceted through strategies such as avoiding gender stereotyping in “social services” and making proactive efforts to ensure that DDR initiatives (from demobilization packages to job training programs) address opportunities for women. In other words, let’s be more context sensitive, and indeed, gender sensitive, to ensure meaningful inclusion.

On the one hand, no one can argue with tailoring DDR packages to the specificities of the context or more proactive and nuanced approaches to gender inclusion. On the other, to see the specific revisions to DDR programs that she makes as the end result of critical ‘gender oriented’ scholarship would be to defang the critique and domesticate the extent to which it challenges orthodox transitional justice. When critical traditions have taken on the “false dichotomies of transitional justice,” they have also highlighted that what is at stake is the extent to which extraordinary violence and violence on the body obscures and normalizes ordinary structural violence. Thus the response cannot be to once again foreground the battlefield in focusing on female combatants as combatants; rather (as Tabak understands) we need to also look at the structural issues that engendered the conflict. This may not be then merely about ameliorative measures for gender sensitive employment opportunities or inclusion of women’s clothing in DDR packages but a more radical push to restructure economic arrangements. In this brief response, I do not have time to highlight multiple examples of the internal tension that flows through the second part of Tabak’s paper but again and again one sees that the need to challenge the enabling conditions of conflict is clearly recognized in her analytical rethinking of orthodox transitional justice but it gets neutered in her discussion of the implications of this rethinking. There she defers to efforts that “re-legitimize the state” and “build civic trust”. There is, I would argue, deep political stakes here that cannot be reconciled with invocations of a “holistic” transitional justice framework; coating state policy initiatives with a layer of gender sensitivity is not on a seamless continuum with challenging social relationships. This is not to trivialize Tabak’s proposals but to highlight a disjuncture between the radical potential in the analytical framework she endorses and the ameliorative, small-bore policy prescriptions she advances. This is a real dichotomy.

False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia

by NYU Journal of International Law and Politics

[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.]

Although the field of transitional justice has made great strides in addressing harms perpetrated against women in the aftermath of conflict, this paper argues that transitional justice mechanisms mistakenly rely on three false dichotomies with regard to the role of gender in conflict. In order for transitional justice mechanisms to achieve success in reordering society, promoting justice, and overcoming past trauma and human rights abuse, it is crucial that these assumptions be questioned, both by scholars and practitioners. Taking as a case study Colombia’s decades-long armed conflict, in which one-fourth of combatants are women, this paper addresses the problem of reintegrating female combatants in Colombia’s violent conflict into civil society after they have left armed groups. In doing so, it demonstrates the centrality of exposing these false assumptions regarding the nature of transitional justice in achieving sustainable post-conflict structures, and potentially, in preventing conflict before it begins.

Reflecting on the ways in which transitional justice may fail female combatants, this paper exposes three central concerns as inaccurate reflections of the realities of both men and women affected by conflict. These false dichotomies are (1) between the conflict era and the post conflict era; (2) between public and private space; and (3) between the commonly-employed legal concepts of victim and perpetrator. In order to fully examine the complexities of these dynamics, this article synthesizes contemporary feminist scholarly work on transitional justice with detailed research on gender in Colombia. It first traces the evolution of feminist thinking on transitional justice mechanisms, and then contributes to the existing feminist scholarship on transitional justice by examining the additional complication of women who may have suffered the horrors of conflict, but who have also been perpetrators of some of these horrors. Utilizing detailed research on the experiences of both Colombian women and men, it critiques transitional justice approaches from a gender-oriented perspective, and seeks to imagine what a gender-inclusive strategy might look like in Colombia.

The full article is available for download here.