Women and Transitional Justice, Progress and Persistent Challenges, in Retributive and Restorative Processes, Mayesha Alam, Palgrave Macmillan

IN the Foreword to the book, Melanne Verveer, former US Ambassador for Global Women's Issues, introduces its underlying theme:  “Women and Transitional Justice:  Progress and Persistent Challenges in Retributive and Restorative Processes is an important and much-needed contribution to understanding the crucial role of women in peacemaking and transitional justice.”  The author, Mayesha Alam, of Bangladeshi origin, is an Assistant Director, Georgetown Institute for Women, Peace and Security, USA.  In her words, “Women and Transitional Justice considers, from a theoretical and practical standpoint, how the inclusion of women affects transitional justice processes and their outcomes as well as how to better practice gender mainstreaming in transitional justice initiatives that are retributive or restorative in nature.”  She demonstrates through her work that she has not made her claim lightly.

Alam makes her points from a demonstrably feminist standpoint, which goes well with the topic she has chosen to study, but she is definitely not misandrous.  In Chapter 2 (“Landscaping Feminist Scholarship on Transitional Justice”), she justifies her approach:  “A feminist analysis of transitional justice…offers a conduit to expose the tensions between political versus social, collective versus individual, elite versus masses, and most importantly between male-led agency versus woman-subjected passivity in transitional justice mechanisms which have, traditionally, not only disenfranchised women and their right to redress but also marginalized other non-dominant societal groups.”  She is troubled that women continue to find themselves on the fringes of international law and in transitional justice initiatives.  “This results in not only the exclusion of women's perspectives, aspirations, and talents in transnational justice initiatives but it also results in a preference for male-centric approaches to governance that would uphold unequal gender relations.”

Hers is a cross-disciplinary effort, and the reader would tend to agree with the author that the book combines theoretical perspectives from feminism, international jurisprudence, conflict resolution and peace-building, state-building, and psychology of inter-group relations.  However, international jurisprudence and feminism predominate, and the title of Chapter 3, “Retributive Approaches to Transitional Justice:  A Feminist Analysis of How International Law Shapes National and International Prosecutions”, pretty much illustrates that point.  She uses the cases of Bangladesh and Kenya to study a new wave of transitional justice initiatives with the hope that the lessons learnt from the experience of these countries “will be lifted, adapted, and applied elsewhere in future transitional justice initiatives.”  Reading this line, one might be tempted to think that the author has wholeheartedly extolled the efforts of Bangladesh, but nothing could be farther from the truth.  Before concentrating on an entire chapter on Bangladesh, she hints at what is going to come:  “Despite its shortcomings, the Bangladesh ICT (The International Crimes Tribunal) is not a lost cause, yet.”  That “yet” is loaded with meaning.

In Chapter 3, she provides a genesis of international efforts since World War II towards establishing transitional justice, from the Universal Declaration of Human Rights to the 1951 Genocide Convention to the creation of the International Criminal Court in 1998.  She discusses the shortcomings and inadequacies of each of these efforts, especially in the matter of addressing women's issues.  For instance, with regard to the Genocide Convention, her verdict is that, “(w)here gender neutrality was prioritized, gender sensitivity was compromised.”  She also faces up to the reality of nationalism often prevailing over internationalism in matters of justice:  “…international criminal law does not necessarily align with domestic laws and the divide between the two can have severe consequences for the functions of a transnational justice institution, including with respect to women's accessibility, participation, and representation.”  This point has relevance in the context of Bangladesh, as may be gleaned from Chapter 4 (“The International Crimes Tribunal for Bangladesh:  A Delayed, Politicized, and Self-Limiting Experiment in Transitional Justice”).

Alam begins by stating how cultural bonds overshadowed religious ties very early in Pakistan's existence.  She is categorical about the liberation struggle:  “Although it was not categorized as such at the time, the Liberation War in Bangladesh is a “forgotten genocide,” according to Gary Bass, of the 20th century --- one that is evocative, in its horrors, of the Nazi Holocaust.”  Then, as will become familiar to readers going through the book, the author quickly zeroes in on the topic of women and justice.  And yet, and this mortifies the author, till now, in Bangladesh, women are primarily remembered as victims of the war when, in reality, “many women who survived sexual assault were also agents of liberation, performing various functions including fighting alongside men as freedom fighters, serving as nurses and informants, providing domestic support, smuggling weapons and ammunition, and setting traps for the Pakistani military.”  

In the post-liberation phase, the Government of Bangladesh promulgated the International Crimes Tribunal Act in 1973.  However, it achieved very little, if anything substantive at all.  In Alam's estimation this happened because, “Unlike in some other places such as Rwanda or Yugoslavia, where peace and justice were pursued within close succession of each other, in Bangladesh, there was a trade-off for peace that overlooked justice.”  Then, after a lapse of thirty seven years, the Sheikh Hasina government established the International Crimes Tribunal (ICT) in 2010.  This one has been more active, although, the author points out, it has drawn criticism from local and international observers, including US government officials, NGOs like Human Rights Watch, and The New York Times newspaper.  They have based their critique on, among other things, the Tribunal being over-politicized and the non-inclusive nature of the proceedings.  On the other hand, ICT officials have steadfastly claimed that it is immune from political manipulation.  Furthermore, its defendants have argued that it is a local institution and, therefore, not subject to international laws.  For the author, though, and this is consistent with her theme, one of ICT's shortcomings is “the inadequate incorporation of women's voices, perspectives, experiences, aspirations, and participation.”

Chapter 6 (“The Truth, Justice, and Reconciliation Commission of Kenya:  A Well-Intentioned “Gender Policy” Threatened by Structural, Cultural, and Political Challenges”) discusses the Truth, Justice and Reconciliation Commission (TJRC) that was established in Kenya in 2008 with the objective of, among other goals, investigating, analyzing, and reporting on ethnic violence and tensions; of crimes of a sexual nature against female victims.  Its findings reaffirmed that Kenya's women occupy “a subordinate position to men in society and gender-based injustices are not only expansive but also multifaceted.”  Partly based on this factor, the author doubts that transformative change will take place in the country (although, I suspect, she has probably not consigned such change to eternal damnation) because there is “an atmosphere of political apathy and even dismissiveness amongst many government officials toward the TJRC's findings and recommendations.”

In summing up her analysis of the two case studies, Alam has been incisive:  “Both case studies on Bangladesh and Kenya demonstrate the importance of public advocacy in the establishment of transitional justice institutions as well as the essentiality of public trust in maintaining the credibility of such a process.  In both cases, the credibility of the respective transitional justice institutions was hurt by poor political leadership, inadequate political will, limited financial resources, diminished access to citizens, and deeply divisive political culture.”  The author also explores other important sectors that require transitional justice.  One of them is economic justice, a condition that is still found wanting in even many of the advanced countries.  She explains the crucial distinction between sexual violence and gender-based violence, which are not one and the same.  Here is where she demonstrates that philogyny is not a part of her outlook.  “Gender justice is the notion that men and women deserve equal protection and equal redress,” she contends, “that both men and women have meaning and significance, and that any redress should be based on their experiences in conflict and their needs in transitioning from conflict to peace.”

Women and Transitional Justice is thoroughly researched and judiciously analyzed.  Mayesha Alam has tried to be objective in her presentation and assessment, and, in this endeavour, she has done herself proud.  However, she could have done without the almost verbatim repetition of her core arguments in different sections of the book.  That was not necessary to get her points across.  Women and Transitional Justice is a serious work that will require much concentration and contemplation from the reader.

Shahid Alam is an educationist, actor and former diplomat