Transitional Justice in South Africa and Brazil: Introducing a Gendered Approach to Reconciliation

• Author: G. Nelaeva - N. Sidorova
• Position: Tyumen State University (Tyumen, Russia)
• Pages: 82-107

BRICS LAW JOURNAL Volume VI (2019) Issue 2

TRanSITIonaL JuSTICE In SouTH aFRICa anD BRaZIL:

InTRoDuCInG a GEnDERED aPPRoaCH To REConCILIaTIon

GALINA NELAEVA,

Tyumen State University (Tyumen, Russia)

NATALIA SIDOROVA,

Tyumen State University (Tyumen, Russia)

DOI: 10.21684/2412-2343-2019-6-2-82-107

The concept of transitional justice has been associated with the periods of political

change when a country emerges from a war or turmoil and attempts to address the

wrongdoings of the past. Among various instruments of transitional justice, truth

commissions stand out as an example of a non-judicial form of addressing the crimes

of the past. While their setup and operation can be criticized on dierent grounds,

including excessive politization of hearings and the virtual impossibility of meaningfully

assessing their impact, it has been widely acknowledged in the literature that the Truth

and Reconciliation Commission in South Africa can be regarded as a success story due

to its relatively strong mandate and widespread coverage and resonance it had in South

African society. We would like to compare this commission from the 1990s with a more

recent example, the Brazilian National Truth Commission, so as to be able to address

the question of incorporation of gendered aspects in transitional justice (including

examination of sexual violence cases, representation of women in truth-telling bodies,

etc.), since gender often remains an overlooked and silenced aspect in such initiatives.

Gendered narratives of transitional justice often do not t into the wider narratives of

post-war reconciliation. A more general question addressed in this research is whether

the lack of formal procedure in truth commissions facilitates or hinders examination of

sexual crimes in transitional settings.

Keywords: transitional justice; truth commissions; post-conict resolution; gender-based

violence; reconciliation.

GALINA NELAEVA, NATALIA SIDOROVA 83

Recommended citation: Galina Nelaeva & Natalia Sidorova, Transitional Justice in

South Africa and Brazil: Introducing a Gendered Approach to Reconciliation, 6(2) BRICS

Law Journal 82–107 (2019).

Table of Contents

Introduction: Origins and Historical Context of Transitional Justice

1. Gender-Based Crimes in Transitional Justice: Beyond the Prosecutions?

2. Truth Commissions in South Africa and Brazil

2.1. South African Truth and Reconciliation Commission (TRC)

2.2. Brazilian National Truth Commission (NTC)

Conclusion

Introduction:

Origins and Historical Context of Transitional Justice

Although the term “transitional justice” is relatively recent, and is mostly connected

in the literature with post-WWII developments, some authors contend that we can

trace the evolution of cer tain policies regarding post-war reconciliation already in

ancient times.1 It has to be noted from the very start that in international humanitarian

law there is no checklist of transitional measures that must be taken in post-conict

situations (with the exception of criminal prosecution). Thus, transitional justice can

been understood very broadly to encompass a whole variety of dierent instruments

and mechanisms applied in dierent settings in an ad hoc manner. Norwegian scholars

Elin Skaar and Camila Gianella Malca dene transitional justice as

processes and mechanisms for dealing with past atrocities, covering a range

of formal as well as informal mechanisms developed in post-authoritarian

and post-conict situations, including prosecution through courts, truth-

telling through truth commissions, victims’ reparations, amnesties, vetting,

lustration, institutional reform, and memorial process.2

Thus, the choice of concrete mechanisms very much depends on the context:

whether the country is transitioning from an authoritarian regime to democracy

1 Anja Seibert-Fohr, Transitional Justice in Post-Conict Situations, Max Planck Encyclopedia of Public

International Law (2015) (Apr. 20, 2019), available at https://opil.ouplaw.com/abstract/10.1093/

law:epil/9780199231690/law-9780199231690-e419?rskey=7mBQue&result=4&prd=EPIL.

2 Elin Skaar & Camila Gianella Malca, Transitional Justice Alternatives: Claims and Counterclaims in After

Violence: Transitional Justice, Peace and Democracy 1, 1–28 (E. Skaar et al. (eds.), London and New York:

Routledge, 2015).