Democratization and Transitional Justice

Any country which attempts to establish accountability for past abuses of human rights during the process of democratization faces political, judicial, and ethical problems. With regard to politics, the question of which transitional justice measures are appropriate, functional, and feasible has to be decided for every individual case. A judicial approach has to decide which judicial standards to apply and how to justify prosecution. Finally, the ethical dilemmas of dealing with historical injustices have to be understood. There are no ready-made concepts to define guilt and justice. In many cases it is even difficult to tell the victims from the perpetrators. This study examines the different strategies subsumed under the term ‘transitional justice’ used by emerging democracies to deal with a legacy of human rights abuses. It explores the problems and challenges posed by different mechanisms of reconciliation and societal reintegration. While existing analyses of the contribution that transitional justice measures make to the process of social re-integration stress the importance of consensus among citizens and social groups for the emergence of trust and solidarity, this study suggests also thinking about how conflicts over competing ‘truths’ can help to build social capital and reconciliation. Noting a global diffusion of international legal norms, which means at least formal universal acceptance of basic rights and judicial procedures, it is argued that international justice cannot be a substitute for transitional justice measures taken by the domestic regime itself.     

Who should code your conduct? Trade union and NGO differences in the fight for workers' rights

The debate over workplace codes of conduct has created tensions between trade unions and human rights NGOs. These tensions result from the inherent structural differences between interest‐driven trade unions and ideals‐driven human rights NGOs. The differences play themselves out in how these actors pursue social justice in a globalised economy. Human rights NGOs tend to see codes of conduct as a method to prevent violations, akin to their traditional work on legal reform and human rights monitoring. Trade unions assess codes for their potential to help empower workers, especially to help ensure freedom of association, which will lead to the realisation of participatory rights. In our understanding of human rights as a means of empowerment for vulnerable groups, we argue that the trade union perspective on human rights is a good long‐term approach. Short‐term successes, such as improving working conditions through outside patronage, seem useful only to the extent they serve this long‐term goal.     

Insight Mediation: A Learning-Centered Mediation Model

Insight mediation is the name we have given to the model of mediation that is taught and practiced at Carleton University in Ottawa, Canada. The name has evolved from our efforts to situate the model in relation to the transformative and narrative styles of mediation. Drawing upon the work of Canadian philosopher Bernard Lonergan and his theory of insight, mediators practicing this model seek direct and inverse insights into what the conflict means to each party by discovering what each party cares about and how that threatens the other party. Insights shift attitudes and create space for collective action. The authors argue that coming to recognize the theoretical underpinnings of our practice helps us become better practitioners.     

Peer Consultation for Mediators: The Use of a Holding Environment to Support Mediator Reflection, Inquiry, and Self-Knowing

In order to help the parties in mediation address their interests, concerns, and responses to the conflict, the mediator must monitor and manage his or her own inner thoughts, emotions, and feelings throughout the process lest they negatively influence the outcomes of the mediation. Peer consultation offers one approach that can be used effectively to support the mediator's inquiry into practice dilemmas and invite self-knowing that benefits the mediator as well as the parties in the mediation. The effectiveness of a group consultation process, however, depends on the development of "a holding environment" that can provide a safe and confidential space within which such an inquiry can occur. The mediation process is improved when the mediator is able to sustain relational and emotional tension within herself and between the parties long enough for new understandings and actions to develop.     

Developing a Situationist Global Justice Theory: From an Architectonic to a Consummatory Approach

Conventional global justice theory expresses a concern for the suffering of individuals around the world, yet very often the experience of those individuals plays little role in the work of theorising global justice. In this paper I argue that global justice has tended to take an architectonic approach in which the theorist orders the world by offering idealised principles of justice that serve as guides to necessary global reforms. This approach draws on a flawed geography of injustice, in which the world is divided into just and orderly regions that must save unjust and disordered regions, while also misunderstanding the causes of injustice. In place of this architectonic approach, I offer a consummatory approach that conceives of justice as a quality of social relationships and which draws on the experience of individuals suffering injustice, using the Grenfell Tower fire as an example. This consummatory approach is then further developed by outlining a situationist global justice theory drawing on the philosophy of John Dewey.     

Mediating with Heart in Mind: Addressing Emotion in Mediation Practice

Given the centrality of emotion and emotional communication to conflict interaction, the lack of attention to emotion in mediation is particularly surprising. This essay suggests that mediation practice can—and should—be informed by the wealth of existing theory and research on emotion in the social sciences. The authors define emotion and argue the centrality of its place in conflict. They address issues germane to the cognitive, expressive, and physiological aspects of emotion and their relevance to mediation practice. Within each area, they discuss the implications of the emotional experience of the disputant and the emotional experience of the mediator.     

Beyond ADR: A Systems Approach to Conflict Management

Given the centrality of emotion and emotional communication to conflict interaction, the lack of attention to emotion in mediation is particularly surprising. This essay suggests that mediation practice can – and should – be informed by the wealth of existing theory and research on emotion in the social sciences. The authors define emotion and argue the centrality of its place in conflict. They address issues germane to the cognitive, expressive, and physiological aspects of emotion and their relevance to mediatio practice. Within each area, they discuss the implications of the emotional experience of the disputant and the emotional experience of the mediator.     

Beyond the log frame: a new tool for examining health and peacebuilding initiatives

How do we move from identifying ethical principles to enhancing development practice? How can donors and NGOs move beyond the reporting of technical outputs to explore less tangible aspects of their health projects: contributions to rebuilding trust, promoting social cohesion, and enhancing good governance at community level? This article considers these questions in relation to health and peace-building activities in conflicted settings. It describes difficulties facing practitioners and donors seeking to undertake health and peace work, in particular focusing on the lack of appropriate tools for screening, monitoring, and evaluating projects. It critiques the logical framework, a tool commonly used in project planning, monitoring, and evaluation, and considers it alongside a new tool, the Health and Peace Building Filter, which has been designed to reflect on health programming in fragile or conflicted settings. The authors argue that such tools can help to move us beyond focusing on inputs and outputs to examining processes, relationships, and the indirect consequences of aid programmes.     

A Bridge over Troubled Water: Managing Parties’ Mental Illness in Mediation

One in five individuals in society has or will have a mental illness at some point in his or her lifetime. Conflict resolution theory, however, largely assumes that all individuals operate within the range of behaviors considered mentally healthy. Evidence suggests that professionals who deal with conflict, however, may have to deal with individuals who have mental health problems more frequently than would be the statistical norm. Clearly then, new theories of practice and norms of mediator behavior are needed to respond to the distinctive challenges presented by engaging with those who face mental health difficulty. This paper surveys the research on how people with mental health challenges approach and respond to conflict and provides practical advice to conflict resolution professionals on how to recognize and tailor their approach to meet the needs of these individuals.     

The Past,Present, and Future of Mediation as Seen through the Eyes of Some of Its Founders

This article is drawn from interviews with thirty‐one of mediation's “founders,” those pioneers who began mediating in the 1970s and 1980s, when the field was young. They describe what first attracted them to mediation and why they have remained active in the field. Some told us that they have found it to be both intellectually challenging and interpersonally satisfying to assist disputing parties in their search for a mutually acceptable resolution they could not find on their own. Others see mediation's collaborative approach to decision making as a means of bringing about social and political change that might be otherwise unattainable. The mediators also described the changes they have observed since they entered the field: mediation's dramatic growth, institutionalization in the judicial system, and market domination by lawyers and retired judges. Among the concerns they expressed were the prevalence of a mediation model that focuses primarily on the legal strengths and weaknesses of each party's position, and the dollar amount that should resolve the dispute, with little interest in creative outcomes. Other concerns are a lack of quality control of mediators and trainers, and unproductive debate about whether the “correct” approach to mediation is evaluative, facilitative, or transformative. The mediators who work on public policy matters, including environmental disputes, were the most positive about the opportunity for creativity in their work, considerably more so than those mediators whose practice is primarily business/commercial. The mediators' views of the future of mediation are remarkably similar — their general sense is that the type of mediation that takes place in the shadow of the courts is likely to increase and to become even more routinized than it is at present. Several respondents told us that they also expect to see substantial growth in the use of mediation to resolve public policy issues. Many of these mediators predicted that this type of mediation is likely to be carried out by organizational insiders, rather than outside interveners. As one mediator said, “Maybe there's a new set of mediation roles for people within traditional institutions, not just for free‐standing neutrals.”     

Contingent Borders, Ambiguous Ethics: Migrants in (International) Political Theory

The article engages a critical analysis of liberal theory in the context of transnational migration. Normative arguments provided by liberal-cosmopolitan and liberal-communitarian authors are contrasted. While sympathetic to such approaches, we argue that traditional liberal theory has attempted to downplay the contingency and resultant ambiguity of many of its moral precepts. Historically contingent borders underpin neat universal categories like "citizen" and "refugee," which fail to reflect the diverse and contested experiences of migration. But such ambiguities need not undermine liberal approaches. Indeed, a proper engagement with the problematic and uncertain realities of migration can provide a spur to a more thoroughgoing ethical praxis. We draw on the philosophical pragmatism of Richard Rorty to outline an approach to migration that remains open to the contingent construction of terms like "migrant,""refugee," and "asylum-seeker." By extending Rorty's concept of sentimental education, we provide an imaginative and politically challenging set of agendas for the ethics of migration.     

Confectionery and Conflict Resolution? What Chocolat Reveals about Mediation

A close analysis of the film Chocolat discloses a new metaphor for the mediator — the mediator as cook. The use of this metaphor throughout the film suggests new insights about mediator style and practice. Specifically, the mediator–protagonist in Chocolat demonstrates that: (1) mediations need not be voluntary to be sound, (2) non-neutral, directive, evaluative mediators can be effective if they individualize their approaches to each disputant and dispute, and (3) effective approaches to mediation celebrate emotion and pleasure, contrary to many conflict resolution theorists who write about the importance of emotions, but do not privilege them in practice.     

UN contributions to development thinking and practice

This brief article highlights some major contributions made by the United Nations to development thinking and practice from 1945 to 2000. The term ‘development’ is used here broadly to refer not only to increases in economic growth and per capita income and to structural change, but also to progress in promoting human rights, poverty reduction, employment generation, fairer distribution of the benefits of growth, participation in decision making at different levels, equality of men and women, child development and well-being, and social justice and environmental sustainability. There is first a discussion of the values that have underpinned UN work on development. This is followed by a summary of some key contributions made by the UN system to thinking on development issues. The article concludes with some observations on the ways in which these contributions were made and on strengths and weaknesses of the system in generating development ideas and action.     

Rethinking Conflict: Perspectives from the Insight Approach

In this article, the authors present the “insight approach” to conflict as an analytical and methodological framework that addresses the dynamic interactions between conflicting parties. According to the insight approach, conflict is relational, dynamic, and adaptive, generated from the responsive interpretive frameworks that parties use to construct meaning. Conflict arises as a result of parties' experience of what insight theorists call “threat‐to‐cares,” which generates defend–attack patterns of interaction between them. The authors suggest that rethinking the nature of conflict so that it is seen as an interaction embedded in meaning making enables conflict interveners to help parties gain insight into, and articulate, the values that are being generated, advanced, threatened, and realigned within the complex interactions that define us as social beings. In doing so, parties develop abilities to generate new patterns and solutions that can limit and even eliminate the experiences of threat that generate conflict between them.     

The significance of the Cracow summit

This article assesses whether the EU contributes to long-term positive change in societies emerging from violent conflict, helping them ‘mend’ or whether it simply encourages societies to ‘make do’ with the status quo. To do so, the article focuses on two of the principles found in the Treaty, peace and justice for human rights violations. It examines how the EU translates the principles of peace and justice into policy and puts them into practice by analyzing EU engagement in peace mediation, transitional justice, and security sector reform in general and through in-depth examination of EU engagement in the Democratic Republic of Congo. It questions the prevailing discourse that greater inter-institutional coherence would improve EU security provision and considers whether and how the EU prioritizes between peace and justice. The article finds that principles may be translated into policy and put into practice, and practice is often ahead of policy. But this is uneven within as well as across the institutions. Greater coherence between principle, policy, and practice, rather than between institutions, would improve EU security provision and enable prioritization. If the EU settles for making do, it undermines its considerable potential to contribute to long-term solutions to complex conflicts.     

Credibility and Strategy in International Mediation

We study mediation in international conflict as a process of strategic interaction among the two disputants and the (would-be) mediator. We develop a rational model that examines the choice, process, and outcome of mediation. We start with a conflict game of incomplete information played by rational players that examines the conditions under which disputants and would-be mediators would consider mediation a preferred strategy. The mediation game that follows models the mediator's choice of mediation strategy and the possible responses of the disputants offers. Finally, we explore the conditions under which a mediated solution emerges and the conditions under which mediation fails.

The credibility of the mediator—defined as the extent to which disputants believe the mediator's statements, threats, or promises and her ability to deliver the promised agreement—emerges as a key factor that drives the model. Each disputant has an assessment of the mediator's credibility. Broadly speaking, the more credible the mediator is perceived by the disputant, the more accepting the disputant will be of her offers. Yet, the mediator does not know how credible she is in the view of the disputants. This uncertainty affects the mediator's decision to intervene and her choice of strategies. We derive testable propositions from this model and test them on a dataset consisting of mediation efforts in international conflicts over the years 1945–1995. The findings generally support the propositions derived from the model, and we explore the theoretical and empirical implications of these findings.     

Coordinating Transitional Justice

Conflict resolution professionals sometimes differ from human rights professionals about the best approaches to transitional justice, particularly with regard to the scope, conditions, and timing of possible amnesties from prosecution for perpetrators of war crimes and human rights abuses. When human rights and conflict resolution professionals work at cross‐purposes, they may work less effectively to end conflict, abuses, and crimes, and to implement peace accords. A consensus among conflict resolution and human rights scholars about which legal norms should govern post‐conflict amnesty programs appears to be developing. Against this emerging legal framework, human rights and conflict resolution professionals should, I argue, develop processes for working together more effectively in the design and implementation of context‐sensitive approaches to transitional justice. These process principles should address the entire conflict period, from escalation through resolution to post‐conflict reconstruction. In this article, I describe a tentative, general framework for coordinating the development of transitional justice programs. This proposed framework is intended to stimulate and guide discussion of these issues among conflict resolution and human rights professionals and scholars.     

Analysis: Reconceptualising transitional justice: embedded and distanced justice

This article argues that transitional justice ranges from the very personal and local to the global and structural, spanning processes and outcomes, clear demands, compromises and contracts. It explores this diversity using the framework of ‘embedded justice’ and ‘distanced justice’, and the case studies of South Africa, Rwanda and Sierra Leone. The argument draws on Fletcher and Weinstein (2002) to argue that justice needs to be embedded within and to engage the communities, cultures and contexts of conflict. A recent article by Sieff and Vinjamuri (2002) is used to advocate decentralisation. Transitional justice debates have generally overlooked justice, and human rights, as manifest in political, economic and social processes whilst privileging the law, and dismissing the potential of locally generated and embedded justice. The article argues that achieving the correct balance requires a shedding of naïve faith in, and the transformation of, both local and international justice, and the contexts within which they operate, whilst seeking to build on their complementary capacities and legitimacies.     

Trade unions,NGOs, and corporate codes of conduct

The proliferation of corporate codes of conduct generates both alliance and tension between trade unions and NGOs that deal with workers' rights in the global economy. Alliance, because trade unions and NGOs share a common desire to halt abusive behaviour by multinational companies and a broader goal of checking corporate power in the global economy. Tension, because unions and NGOs have differing institutional interests, different analyses of problems and potential solutions, and different ways of thinking and talking about social justice in the global economy. There are fears that codes of conduct may be used to undermine effective labour law enforcement by governmental authorities and undermine workers' power in trade unions. The substance behind the rhetoric on this new generation of corporate codes of conduct is certainly open to question. However, this paper argues that, given unions' weak presence in the global assembly line and the rapid‐response capabilities of many NGOs, such codes are a valuable asset. Trade unions and NGOs still have more in common with each other than either has with corporations, governments, or international organisations that see free trade and free‐flowing capital as the solution to low labour standards. But both need to be clear‐eyed about their differences and their proper roles as they navigate the opportunities and challenges that lie ahead.     

What difference can they make? Assessing the social impact of corporate codes of practice

As retailers in the North increasingly adopt codes of practice containing social and/or environmental provisions in global supply chains, there is a need for rigorous assessment of their social impact. Moving beyond the rhetoric, it is important to establish the actual impact of such codes on poorer workers, their families, and other local stakeholders. This paper sets out the key methodological and conceptual issues arising in such an assessment as identified by a three-year study on the South African wine industry. It reviews the different motivations and approaches employed by code bodies, donors, academics, and practitioners, and highlights the lack of workers' voices in the debate on corporate responsibility as well as some of the early research findings. Finally, it explains how the inherent power inequalities in global supply chains make it more difficult to adopt a truly empowering approach to assessing the impact of codes of practice.