Transitional justice for women: Acknowledge the past,fix the present,prevent repetitions in the future

Transitional justice as a reparation for legal discrimination against women

To solve this problem, this article is based instead on a more conventional legal concept, already ‘in the books’: the need to repair a damage. Leaving aside the doctrinal changes in English law regarding equity and the mainstreaming of the concept of unjust enrichment or restitution only partially witnessed in Australia, ⁶ I contend that the law must be gender-responsive and treat women in a differentiated manner as a ‘mechanism of reparations’. The legal system itself must compensate for how that very same legal system has unjustly enriched men and the law must ensure the restitution to women of what the law has taken from them. ⁷

In other words, I propose that legal systems should respond as a transitional-justice-making tool to redress the legal discrimination ⁸ suffered by women over the years. While redressing legally-originated gender inequality – the ‘damage’ – will undoubtedly require a broader public intervention – in terms of politics, policies and laws – having legislation committed to redress the previous discrimination is essential. I believe that anchoring this approach merely as a ‘reparation’ will address, at least at a theoretical level, the worries of the partisans of colourblindness: ⁹ the law is not treating a group differently, it is just correcting the damage caused in the past, precisely when it was treating men and women differently. In that sense, the final objective of this ‘transitional justice through the law’ is to enforce equality.

Equality is recognised as a founding principle of most extant legal systems. The law should aim at delivering that equality, and not just correcting previous mistakes through the reform of the legislation that promoted or protect inequality. ¹⁰ This proposition may resonate with those who have argued, notably in the United States and South Africa, for legal redress, or ‘affirmative action’, or ‘positive discrimination’ for minorities legally – and not just socially – discriminated against in the past, the victims of ‘institutional racism’. ¹¹ This is the ‘justice’ part.

Yet, the justice mechanism must also be ‘transitional’ to be legitimate. The system proposed here can only be justified in these terms as a temporary measure, until adequate redress is provided. This article assumes that if laws are properly drafted, adequately implemented and enforced during a given number of years – probably something between two and four generations ¹² – those transitional mechanisms could be reverted and ‘genderblindness’ could be a reasonable standard again. ¹³ Final equality (justice) is the objective of the system, but for the measures themselves to be ‘just’ they have to be temporary. This restriction demands that they can only last the time it would take to transition from injustice to justice. In that sense, this proposal can be directly linked to the 1988 Committee on the Elimination of Discrimination against Women’s General Recommendation No 5 which promoted using temporary special measures such as preferential treatment or quota systems to advance women's integration into education, the economy, politics and employment. ¹⁴

There are three key elements in this proposal. First, the reparations are not due as a compensation for a different position in society or as a moral case, but simply as a way for the entity that has caused the damage – the law – to revert that damage and leave the offended party – women here – in a situation of equality, where all gender disparities caused by the legal system have been repaired. Second, I do not consider here whether the discriminatory laws that existed in most countries were legally wrong or not. By definition they were legal in the societal context in which they were created and enforced and, hence, never caused an illegal or wrongful harm in tort terms. The only relevant factor here is that those discriminatory laws affected gender equality as it subsists today, even when the laws were later modified. Third, these transitional justice demands are legally justified in equity – in its common-law meaning. On the basis of the ‘superior sanctity inherent to equity principles’ and the maxim that equality is equity, ¹⁵ the inequality caused by the legislation must be redressed. In that way, this transitional justice is not only reasonable but also required by equity principles based on fairness.

Why not simply reparations?

Following from the introduction, some readers may be wondering why this article advocates for something as complex as transitional justice, instead of arguing just in favour of reparations. Some may even point out at the oxymoron of addressing gender inequalities through transitional justice, a concept that has received strong criticisms from feminist authors. ¹⁶

A logical starting point to assess if reparations – monetary or of some other kind – are possible is to consider whether it is feasible to (i) quantify the damage caused by legal discriminations against women in the past and (ii) establish who should benefit from those reparations. Although it may seem difficult to achieve both, it may not be impossible.

Modern econometric techniques have assessed in monetary terms the effects of different legislative options. ¹⁷ An iterative process of different discriminatory legislation in different countries may be gargantuan, but it is feasible. Once having assessed the damage caused, reparation for all women could be relatively simple. For example, one can imagine that people who would have fallen in the scope of the discriminatory legislation – ie, often biological women ¹⁸ – could benefit from reduced rates in their income taxes or receive a lump-sum public payment every year. Once the aggregate amount of these compensations reaches the level of the collective damage, the reparations would be complete.

In my view, the need instead for a ‘transitional justice’ approach responds to more philosophical reasons. Transitional justice, as a concept, encapsulates two ideas. On the one hand, it refers to the legal approaches adopted by societies to respond to the legacies of repression. On the other hand, it touches upon the significance of those responses to the society’s liberalising prospects. ¹⁹ It does so while balancing justice and political realism. ²⁰ It is not an isolated intervention, but a conception of justice associated with political change. ²¹

A transitional justice approach to gender inequality would involve several elements which go beyond the more chrematistic implications. First, it requires a recognition of the damage caused to women. It is common knowledge that the international intervention in Afghanistan lifted several of the restrictions imposed by the Taliban on women’s rights. Yet, few are aware that women could not vote in Kuwait until 2005, 14 years after the US-driven coalition liberated the country from Iraq’s invasion. ²² Many know about the historic disparities in inheritance rights between men and women in countries in Europe over the centuries. Not that many would know, however, that differences of current rates in land ownership in Latin America can be partially explained by the different treatment provided by former (and current) legal norms in inheritances, public programmes and marriage, which (directly or indirectly) favoured men. ²³ The list of examples, from fairly recent legislation in developing and developed countries about family, employment, taxation, resources, etc., has no end.

If a racial or geographic minority had received the same normative treatment, the call for a process of reconciliation and societal change, with or without transitional justice mechanisms, would be overwhelming. Interestingly, Vijeyarasa had advocated exactly this for Indigenous peoples in Australia. ²⁴ Democratisation and full participation of those discriminated against in the past requires the kind of institutional and societal effort that only comprehensive approaches such as transitional justice mechanisms can offer. Yet, when the victim of the legal discrimination is a majority of the population, as women are, there has been no push for such an approach.

A second argument against monetary reparations concerns who will receive such a compensation. In the example offered above, only the existing women would receive tax breaks or lump-sums. The current generation will benefit for a damage sustained by many previous generations. There would then be a misalignment between victims – the group of biological women as a whole – and those receiving compensations – women living today. The effects of that monetary reparation will easily be diluted in the following generations and we will be back at the starting point.

Furthermore, a system of monetary reparations would not deliver the objective of liberalisation of the society. I understand this liberalisation process, in line with Isaiah Berlin’s ideas, as the setting up a framework for maximising the liberties of each individual while avoiding interference or collision with the others’ liberties. In his words, the liberty of the minority must not have been gained at the expense of ‘exploiting, or, at least, averting their gaze from, the vast majority […] [I]f individual liberty is an ultimate end for human beings, none should be deprived of it by others; least of all that some should enjoy it at the expense of others’. ²⁵ Only a system that establishes the adequate framework for this liberalisation can ensure a lasting change for the situation of women.

A third limitation in reparation-based systems is the discontent that ‘third-world feminists’ ²⁶ are likely to feel with the suggestion that women as a homogenous group deserve compensation. Plain compensations ignore the different levels of suffering among different groups of women in different countries. ²⁷ Transitional justice mechanisms, on the other hand, offer a qualitative character and an adaptability to accommodate different voices, which would allow the experiences of different groups of women to be acknowledged.

Transitional justice outside conflict settings

Transitional justice mechanisms originated in – and are still often linked to – post-conflict settings. A report of the Secretary-General of the United Nations from 2004 conceptualised transitional justice as a ‘full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’. ²⁸ Subsequent United Nations documents, however, have accommodated a more expansive and contemporary concept of transitional justice.

For example, a 2012 resolution of the Human Rights Council specifically underlined 'the importance and urgency of national and international efforts to end human rights violations, restore justice and the rule of law in conflict and post-conflict situations and, where relevant, in the context of transitional processes'. ²⁹ That same document acknowledged as well the different contexts where transitional justice operates and the panoply of objectives it may serve, notably ‘preventing the recurrence of crises, future violations of human rights and to ensure social cohesion, institution-building, ownership and inclusiveness at the national and local levels’. ³⁰

In that sense, transitional justice is a process that escapes a narrow legal construction, being seen by academia as an eminently ‘interdisciplinary field in which law, political science, history, sociology, anthropology, theology, and other disciplines converge’. ³¹ Consequently, a better understanding of transitional justice today is as a theoretical and practical process which explores how the state should handle fairly and equitably claims arising from wrongdoings, often originated by the very same state and its agents. ³²

Pablo de Greiff, a former UN rapporteur on the issue and one of the leading experts in the field, was already writing in 2013 that

the field ha[d] become ‘normalized’ in the sense of now forming a part of the presumptive package of measures that are applied (or at least considered) not just in the contexts that were the ‘birth place’ of those measures [post-conflict and post-authoritarian regimes, but also] in situations that are acknowledged to be quite different. ³³

In our case, the ‘historical injustice’ suffered by women requires a comprehensive approach manifested in a commitment by all public institutions in general and the legislators in particular to redress the legal discrimination suffered by women. Modest interventions by the executive or by certain independent agencies just recognising the damage are not sufficient. It is the State as a whole – being the source and origin of the legal system which caused the discrimination suffered by women due to its intervention – who must (i) face the truth, (ii) produce an adequate recognition of the damage caused and (iii) state its intention to redress it. It should be noted here that when I refer to the State, I include the legislative branch and the judiciary, as well as the executive branch understood in an expansive manner.

Transitional justice for women mechanisms in practice

Once justified the need for transitional justice for women, the obvious question would be to inquire about the mechanisms needed to deliver it. The concrete level of legal gender discrimination suffered by women and its effects will necessarily be different in each jurisdiction. However, the starting point must be a recognition on behalf of the State of the existence of a former or current institutionalised discrimination accompanied by a process in which victims have a voice. Transitional justice mechanisms may therefore include the participation of concrete victims telling their stories in front of commission and other more informal approaches. This recognition-voice duality would reinforce societal support for the ensuing reparation mechanisms.

Such a recognition would not necessarily involve an apology, as this could sound vacuous. Rather, it should focus instead on outlining contemporary and ongoing consequences of past legal discrimination. Contrarily, in some places where legal discrimination subsisted until recent times, an explicit apology may be due. ³⁵ A good candidate for such an apology is Switzerland, assuming responsibility for the rejection in the 1959 referendum to granting the right to vote to women. Other candidates may include countries where family law imposed obedience of wives to their husbands, or deferred to the latter certain decisions; or where employment and administrative law limited certain positions only to men.

Once that is established, reparation mechanisms can kick in. It seems logical that the best way to redress the damage is using the same tools that caused the initial legal discrimination: the law and public policies. Similar to Vijeyarasa, I see new legislation as a cornerstone of a transitional justice process and I would subscribe to the approach proposed in her Gender Legislative Index (GLI). ³⁶ Laws have to meet the challenge of addressing underlying gendered inequalities suffered by women, instead of just papering over them. ³⁷ The objectives of the GLI align perfectly with a transitional justice approach of acknowledgment of the damage, fixing it and establishing the mechanisms to avoid repetition.

Public policies, such as positive discrimination in public recruitments or tenders, or more favourable retirement rights, are probably where the State has done more work and an area that has been explored to a much more significant extent. ³⁸ With better or worse results, ³⁹ the work on this domain is already on its way in many countries and it may only need refinement and learning from best practices across the world.

Finally, it could not be ignored that any transitional justice approach, given its scale, requires, above all, a strong political will from governments to seriously and courageously tackle the issue. Many may not see the need to invest political capital in this kind of discussion. The current partisan-style politics in many countries does not favour the proclivity of government leaders to deal with this issue on this scale either. Nonetheless, the need to address and repair legal gender discrimination is both an issue of justice and an opportunity to provide closure. A collective action by several countries, for example at the G7 or OECD level, could minimise the political costs while putting pressure on other States where that institutionalised gender discrimination still exists.

Conclusion

The starting point of this article was supporting Vijeyarasa’s call for gender-responsive legislation, while justifying the need for that legislative approach in a wider framework concerning the need for transitional justice for women. The article clarified how mere reparations are not enough and underlined the importance of recognition by the State of the damage caused to women.

The transitional justice approach supported here is not a one-size-fits-all solution to gender disparities. However, it is a strong political message and a multi-purpose tool for addressing the effects of legal discrimination from several angles which reinforce each other.

Regretfully, probably the countries more likely to seriously consider this option are the ones who may need it the least. In any case, a step in this direction would set a precedent that many others may follow, as was the case with transitional justice mechanisms in post-communist Eastern Europe ⁴⁰ and Latin America. ⁴¹