Introduction
Transitional justice (TJ) includes criminal prosecutions, truth commissions, reparations, and other policies to provide redress for victims of human rights violations committed during a period of conflict or authoritarianism. Many voices have called for a “rethink” of transitional justice, especially in terms of how it should address gender, defined as the socially constructed roles, status, and identities of girls, women, boys, men, and gender-diverse people in society. Some argue that TJ has ignored gender, focused on too narrow an understanding of harms, especially rape, or has defined gender as sex and paid little attention to the suffering of other groups, including men, boys, and sexual minorities.
Many of these arguments explicitly or implicitly assume that there is a hierarchy of harms where attention to one kind of gender-related violence, such as rape, crowds out attention to other gender issues or comes at the expense of transformative justice or addressing the root causes of violence. This is similar to an argument Philip Alston made here recently, stating that a focus on atrocity crimes “obscures the need to develop more complex and comprehensive human rights approaches.” A crowding out hypothesis is intuitively appealing and, in some circumstances, persuasive, such as where international funding is involved and funds spent in one place are not available to be spent elsewhere. However, transitional justice practitioners need to test such arguments with evidence since it is equally plausible that more attention to one kind of gender crime can spill over to create more attention to other gender crimes.
Gender and transitional justice mechanisms
Helen Clapp, Daniel Marín-López, Averell Schmidt, and I recently published a broad survey of transitional justice mechanisms’ attention to gender in all transitional countries. This survey is based on our updated dataset and website on transitional justice in countries around the world. Our survey allows us to assess the claims in the critical literature on gender and TJ.
To map the emergence of gender-attentive TJ practices, we coded all gender-attentive prosecutions, truth commissions, and reparations policies in our database from 1970 through 2020. By “gender-attentive,” we mean TJ mechanisms that explicitly address gender injustices and gender-based violations. A gender-attentive mechanism can include—but is not limited to—sexual and gender-based violence.
We found that although gender was largely absent from global TJ practices from 1970 through 1990, attention to gender has increased significantly in all three mechanisms, beginning as early as the early 1990s. Second, consistent with existing critiques of TJ, gender-attentive TJ policies have focused predominately on physical harm—especially rape. Third, however, early accountability for gender violence of any kind is more likely to be associated with a “positive spillover,” leading to broader attention to gender issues rather than “crowding out” attention to other gender harms.
In other words, rather than categorizing gender-attentive TJ as part of a zero-sum game, where attention to one injustice precludes attention to others, we find that gender-attentive TJ is often a positive-sum game. More specifically, once actors work for accountability for gender violence, they are more likely to address a wider range of gender issues.
When TJ policies first pay attention to gender-based harms, they adopt a narrow definition of gender, limited to the experiences of women while excluding those of men, boys, and LGBTQI+ or SOGIESC (sexual orientation, gender identity and expression, and sex characteristics) individuals. This narrower focus is largely due to the role of feminist groups that organized in the 1980s and 1990s to draw attention to violence against women. Over time, however, countries that paid early attention to gender harms against women were more likely to provide accountability and redress to other groups and other crimes.
When we focus on the entire universe of TJ trials, truth commissions, and reparations, we find that the first gender-attentive TJ policies emerged in Africa and Latin America. Early recognition of violence against women in Latin American countries led them to be more attentive to other types of victims and harms when later confronted with new demands for gender equality, especially calls from LGBTQI+ victims. This evidence is consistent with the argument that early gender attentiveness leads to positive spillover rather than crowding out or making other harms and victims invisible.
Varied approaches to transitional justice
There are also some interesting differences among different TJ mechanisms. Truth commissions (TCs) pay more attention to groups other than women and to non-physical gender injustices than either trials or reparations. To date, six transitional TCs have examined the phenomenon of violence against sexual minorities (Brazil, Colombia, Ecuador, Paraguay, Peru, and South Africa). Four of those (Brazil, Colombia, Ecuador, and Peru) had a dedicated gender-focused team to investigate gender-related issues. The Brazilian and Colombian TCs’ final reports include chapters on violence against LGBTQI+ individuals and issue policy recommendations for redressing these crimes.
Most gender-attentive TJ trials, on the other hand, concern allegations of sexual and gender-based violence (SGBV) with female victims, both adult women and girls. The trial data, in particular, is consistent with the claim that there has been little attention or acknowledgment of the gender-based violence experiences of men or LGBTQI+ individuals. Reparations policies fall somewhere in between trials and truth commissions. There is consistent evidence that gender-attentive reparations focus overwhelmingly on providing reparations for bodily harm suffered by women, but there are also examples of innovation and change.
Among the set of reparations policies implemented in transitional contexts, three explicitly refer to men and boys as potential recipients of reparations for sexual and gender-based crimes: Sierra Leone (2004), Ghana (2004), and Kenya (2013). In addition, six policies gave reparations for forced child recruitment (Colombia’s two policies, Guatemala, Peru, Sierra Leone, and Sri Lanka), a harm that disproportionately affects boys. Only Spain’s 2009 policy explicitly provides reparations for crimes against LGBTQI+ victims.
The ways in which gender was defined in different periods reflect—in part—the emerging and evolving gender consciousness of victim groups themselves. This changing gender consciousness has slowly led to spillover as newly organized victim groups demand attention to their gender concerns.