The overall purpose of the dissertation is to make a contribution to a political theory of democratic transformations by drawing attention to one of the less theorised dimensions of a polity’s public culture: public affect. More precisely, I deal with the role that institutions in general and courts in particular can play in the education of public moral sentiments within transitional justice processes. A cognitive constructivist approach to emotions provides the background for my attempt to show, first, the legitimacy of negative public emotions of resentment and indignation in the aftermath of violence, and second, their positive potential for the reproductive efforts of the democratic community. These affects are barometers of injustice and can act as signals of alarm for institutions to intervene correctively. As such, they bear normative weight and should be a proper object of concern for any society attempting to make the transition to democracy; however, left unfiltered and unmediated institutionally, they can either degenerate into political cynicism and apathy, or be expressed in ways that are incompatible with the democratic value of equal concern and respect for all citizens. I argue that courts dealing with transitional justice issues can recognise, engage constructively, and fructify negative moral emotions for democracy. The exemplarity of judicial reflective judgment—both in the context of constitutional review of transitional justice bills and of criminal trials—can inspire citizens to reflect on what they want to do in the name of their violated sense of justice and encourage them to internalise democratic norms of social interaction. A series of case studies from the twentieth and twenty-first centuries are used to illustrate how the judiciary has historically chosen to engage negative emotions in the aftermath of oppression and violence.

<p>Drawing lessons from South Africa, Chile, Peru and Colombia, the study seeks to contribute to the debate around reparations in a society where the likelihood of prosecutions against suspected perpetrators is limited.</p>

The purpose of this thesis is to explain how and why a sector of the Chilean population is indifferent to past human rights violations committed during the dictatorship of General Augusto Pinochet (1973-90), and also what the consequences of that indifference are in Chile today. An explanatory sequential and non-nested mixed methods design has been applied: the quantitative analysis is based on the 2013 National Bicentennial Survey (N=2,004), and the qualitative analysis is carried out from fifty-three in-depth and semi-structured interviews to indifferent and non-indifferent individuals. It is argued that indifference to past human rights violations is the result of various processes of socialization that influence the individual, being relevant life experiences and social interactions related to political issues. According to the survey, 16.02 percent of the sample is indifferent to past atrocities. Regarding the causes of indifference, binomial logistic regression highlights four variables: political orientation, socio-economic status, generational cohort, and perception of social conflict. The analysis of in-depth interviews shows that the three most common sets of variables that explain indifference to past human rights violations are: the predominant emphasis on search for family and personal well-being, discomfort with politics, and fear of a recurrence of the pre-coup d'état crisis and post-coup authoritarian experiences. Qualitative analysis shows that indifference is dynamic and visible. There are also different intensities in the spectrum of indifference. As the indifferent are a heterogeneous group, distinctions between disillusioned, submissive, depoliticized, and resigned indifferent are presented. It is also argued that the indifferent cynics are a problematic group for transitional justice, democratic consolidation, and the rule of law. Regarding the social consequences, the indifferent may actively promote social indifference in their interactions; indifference has become a socially accepted norm by other sectors, and indifference facilitates the persistence of the culture of impunity over time.

Magister Legum - LLM / South Africa

Magister Legum - LLM

What do we owe to each other in civil society? And what do we owe to each other specifically in the aftermath of a large-scale moral transgression that implicates or impacts a large portion of the population? This dissertation, which takes place at the intersection of political and moral philosophy, begins with this question. I argue that in order to make sense of our social and political obligations under the circumstances of so-called transitional justice, we must first interrogate the moral grounding of those obligations — an activity that is all too easy to overlook or engage in non-reflectively. I argue that while a consequentialist approach to ethical value underlies our intuitions in transitional justice as presently practiced, a contractualist approach offers a promising alternative. On my account, a contract-based approach is especially well-suited to transitional moments, not only because it conveys the collaborative nature of the transitional project, but because it reifies the agency and autonomy of previously victimized individuals. Chapter I draws out the distinction between transitional justice as an array of formal mechanisms and practices (‘formal transitional justice’) and transitional justice as a collection of intuitions about response to grievous wrongdoing (‘ideal transitional justice’). Our ideas about transitional justice influence and shape the form it ultimately takes on the world stage, and those ideas are informed in large part by our moral intuitions. To that end, I introduce the notion of ‘transitional ethics’ as a complement to transitional justice. In Chapter II, I make the case that a thorough exploration of transitional ethics requires us to investigate the suitability of various ethical approaches for the transitional moment. While virtue ethical and deontological approaches fail to resonate robustly with the unique demands of the transitional moment, consequentialist and contractualist approaches succeed. Indeed, the former is already implicitly present in most scholarly theorizing about transitional justice, but the latter deserves increased attention. It is with this consideration that the remainder of the dissertation is concerned. Chapter III considers the impact of a contractualist transitional ethic on victim experiences, and makes the case that the contractualist emphasis on relationships lends itself particularly well to the reification of their moral worth and dignity. Chapter IV turns towards perpetrators, particularly to cases of ‘complex’ perpetrators who themselves may also be victims in some sense or another. Chapter V engages with the final puzzle: how can we hold wrongdoers retributively accountable (if indeed such a thing is desirable) when we orient our approach to transitional justice around the recognition of personal dignity? I argue that the recognition of personal dignity, which contractualism emphasizes, is not incompatible with accountability. Rather, conceiving of perpetrators as signatories to the social contract protects their fundamental rights while emphasizing their civil responsibilities.

Despite the signing of the 2005 Sudan Comprehensive Peace Agreement that ended the two decades of South-North Sudan war; and the 2015 Agreement on the Resolution of the Conflict in South Sudan, to end the current civil war, armed conflicts persist in South Sudan. Two key inadequacies of the liberal peacebuilding model, applied to address modern conflicts in Africa and across the globe are its insistence on international justice instruments such as the International Criminal Court, and the failure to recognize the role of local approaches and to incorporate them into peacebuilding intervention policies. This has resulted in failures to address the grievances and bitterness of war affected people and to reconcile divided communities. This study examines the potential and limits of applying local approaches to post-conflict peacebuilding in South Sudan. Based on empirical data obtained through qualitative case study conducted in South Sudan over five months in 2016, the findings reveal that despite the wide use of local institutions and justice mechanisms, many challenges exist, that pose serious difficulties in solely applying these strategies to transitional justice. However, for the liberal peacebuilding model to address the root causes of internal conflicts and build sustainable peace, local strategies could provide a significant complementary contribution, since dealing with the past entails more than retribution and truth seeking. The study has wider implications in practical and theoretical considerations for ongoing armed conflicts in Africa and other parts of the world.

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Quantitative research investigating the causes and subsequent impact of transitional justice practices has further developed thanks to the production of cross-national data on justice practices, namely by the Justice Data Project and the Transitional Justice Research Collaborative. Current work, however, does not consider the role of justice from a feminist perspective. For example, with respect to causes, we know little about whether and how justice processes are gender inclusive, and what the factors lead to gendered inclusion within justice practices. There is also a need for further inquiry to explain how gendered conflict violence, e.g., sexual violence directed at women, influences justice adoption, and if so, whether these justice processes are more likely to be inclusive of women and gendered issues. Regarding justice impact (its post-hoc effects), there is much to know about the implications gendered justice pose for post-violence societies. Moving away from essentialist notions that position men as protectors and women as inherently peaceful and mere victims of abuse, feminist scholars advocate for research to showcase women's agency as security providers in peacebuilding and peacemaking. I introduce a framework to explain how women and gendered issues become integrated into justice practices and evaluate implications that result from these processes. Such a research program is important, if not crucial, to understand the role of women as agents in the development of peace and security in countries with a history of violence and human rights abuse. In doing so, I respond to demands calling for gender perspectives on issues related to security and positive peace, a peace that includes social justice, that can only be achieved by dismantling the unequal power structures of gender, race, and class.