Author: Tarique Niazi
Title: Book Review: ‘The Global Climate Regime and Transitional Justice’
Published by the Global Policy Journal, 7 December 2018: https://www.globalpolicyjournal.com/blog/07/12/2018/book-review-global-climate-regime-and-transitional-justice
The Global Climate Regime and Transitional Justice, by Sonja Klinsky and Jasmina Brankovic. London: Routledge, 2018. 196 pp., £92 hardcover, 9780415786027
The debate about global climate change triggers visceral emotions – moral outrage, a sense of injustice, feelings of empathy, and concerns for equity. When passionate partisans advocate their positions on climate action (i.e., what to do about climate change), such advocacy turns inflammatory. The intensity of emotions, as a result, deeply divides the global North and the global South. The United Nations, which has emerged as the world arbiter on climate action, has long been at work to bridge this divide. The Global Climate Regime and Transitional Justice engages with this divide, and the raging debate about it, especially in the halls of the United Nations. The volume’s authors Sonja Klinsky, who is a climate justice scholar, and Jasmina Brankovic, who specializes in transitional justice theory, have joined their intellectual forces to reconfigure the transitional justice approach in the climate context.
In this endeavor, they document how the United Nations has been modulating its position on climate action to get the dissenting sides to agree on the basic minimum about how to stop global climate change (i.e., climate action). The most contentious areas in this debate are the fixing of responsibility for contributing to action on climate change and its stabilization, and who is to repair the harm inflicted by climate change. The United Nations Framework Convention on Climate Change (UNFCCC) initially designated ‘common responsibilities’ for all world nations to stabilize climate change. The idea of common responsibilities, however, was resented by the nations of the global South. These nations argued that responsibilities to fix the climate should be determined in light of world nations’ historical contributions to global climate change, and individual nations’ (read southern nations’) capacity to shoulder these responsibilities. The South’s resistance led to the reconstruction of the idea of common responsibilities as ‘common but differentiated responsibilities.’ The reconstructed concept allowed taking into account historical contributions to climate change, and individual nations’ capacity to help stabilize the climate as well.
The re-designation, nevertheless, had the global North decry the concept of ‘differentiated’ responsibilities, which entailed more obligations for them to share while fixing the climate. These differences were acute at COPs (conference of the parties), i.e., climate talks in UN-speak, in Poland and especially in Peru, which all but dashed any hope for a climate pact the following year in Paris. By the time, climate talks moved to Paris in 2015, ‘differentiated responsibilities’ were again made over into ‘self-differentiated’ responsibilities. This designation meant that individual nations would ‘self-assess’ how and how much they could cut back on greenhouse gas emissions. In the lead up to the Paris talks, the UNFCCC conceived the idea of ‘Intended Nationally Determined Contributions’ (INDCs) to allow individual nations to self-determine the size of their emissions cuts. The Paris Climate Pact was eventually signed on the promise of a kind of good-faith efforts by each signatory nation as to how much it can contribute to overall emission cuts. Many, including this reviewer, called the INDCs no better than ‘New Year Resolutions.’
Klinsky and Brankovic, rationally but empathetically, challenge this sneering, and attempt to sweep the landmines of dissent on the subject with transitional justice theory (TJT). The authors present transitional justice as a kind of third way between retributive justice and restorative justice. The empirical field of this theory has been the crimes against humanity that are committed within or between nations, and where conventional criminal justice approaches are unhelpful in determining and punishing past harms or forging a collective path to national or civil reconciliation for warring factions. The authors incorporate transitional justice approaches in the climate context by revisiting the core ‘justice challenges’ that in their view will be central to global climate governance, especially in meeting the objectives of the UNFCCC and the Paris Agreement: ‘This includes the debates about uneven historical emissions, unevenly distributed climate harms, and the way that both of these issues intersect with pre-existing and profound inequalities globally’ (p.6).
Klinsky and Brankovic contextualize the idea of responsibility in climate talks to embed it in transitional justice theory. They identify three pathways to understand ‘responsibility’ in the climate context: first, an acknowledgement process to manage the political temptations and long-term repercussions of de facto amnesty; second, a process of truth-seeking and truth-telling through institutional mechanisms such as a truth commission that would recommend financial and nonfinancial contributions from state and nonstate actors to repair harm; third, continuing efforts to apply legal accountability norms to individuals and collective action (such as states and corporations). The authors argue that these pathways are mutually reinforcing as legal accountability pressures recalcitrant actors to acknowledge responsibility via non-retributive pathways, and truth commissions shield them from legal accountability in a nonpunitive form of acknowledgement.
The authors speculate that these measures could answer the question of reparations as well. A truth commission, in their view, could be instrumental to effecting reparations or informing the ways in which acts of repair could match the self-identified needs of affected communities. Reparations, as defined in transitional justice theory, include compensation, restitution, rehabilitation, satisfaction, and efforts to promote nonrecurrence. Importing the concept of reparations into the climate context, the authors frustratingly declare, makes it ‘toxically contentious.’ They still dare hope in suggesting a way out of this toxic contention by segregating ‘responsibility’ and ‘repair,’ which would permit a nonpunitive approach to reparations that is explicitly meant to mitigate climate-caused harms, leaving ‘responsibility’ to be addressed separately. In specific terms, the authors envision a Reparations Commission housed within the UNFCCC which would work to connect community-based claims for harm to appropriate reparations.
Klinsky and Brankovic certainly break new ground to extend transitional justice theory to global climate change, and couch the debate about climate change in terms of climate justice, especially integrating climate policy with concerns of justice. They have dexterously shown how transitional justice mechanisms can address thorny questions of past climate harms, and the responsibility and reparation for them. Yet their efforts to reconcile global actors’ militantly conflicting positions on climate action have been centered on making climate accountability, responsibility, harm and repair non-retributive, and even unenforceable. If a bad actor has to escape justice for the harm it has caused, or the harm itself is indeterminate, then non-punitive justice can be anything but justice. The authors’ argument still carries weight that only transitional justice and its proven mechanisms can have powerful global actors accept climate accountability, responsibility, harm and repair.
A sidebar to the issue of climate justice is climate denial, whose tropes are less of escaping justice and more of embracing the growth imperative over climate imperative. Climate deniers refuse to accept even unenforcable ‘self-differentiated’ responsibilities in the Paris Climate Pact that were to materialize into climate action in the distant 2020! Since 2015, when the Paris Climate Pact was signed, very little has actually happened which could be called climate action. Instead, the efforts have since been afoot to reverse the pact. It suffered a huge blow when President Donald Trump pulled the United States out of the pact despite pleadings to the contrary by fellow Western leaders. President Trump is unconvinced of the reality of global climate change. In 2012, he tweeted: ‘the concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.’ His is a classic case of climate denialism. The INDCs, since the passage of the Paris climate pact, have little to show for their worth either, while climate change has continued to worsen. Global CO2 emissions rose from 400.88 ppm in 2015 to 410 ppm in 2018. This statistical evidence rebuts any claim to the contrary that the Paris Climate Pact has made any difference to global climate change. That said, climate action cannot be sidestepped for too long. Such is climate justice, with which Sonja Klinsky and Jasmina Brankovic deftly frame climate policy debates in their groundbreaking study, The Global Climate Regime and Transitional Justice.
Tarique Niazi, Ph.D., is a Professor of Environmental Sociology at the University of Wisconsin, Eau Claire. He specializes in resource-based conflicts.
MEMBERS of Parliament’s police committee, the new Deputy Minister of Police Maggie Sotyu and police secretariat officials pronounced themselves disappointed this week when the Centre for the Study of Violence and Reconciliation’s report on why crime in South Africa is so violent was released.
They clearly all wanted a magic wand from the academics – David Bruce and Adele Kirsten – who compiled the study, and there wasn’t one. Indeed, after a particularly robust engagement, Bruce told the committee that worldwide there had been many studies done on violent crime and no one had yet come up with an answer.
Committee chairman Sindi Chikunga and Freedom Front Plus MP Pieter Groenewald wanted to know why crime in South Africa was so often accompanied by hideous cruelty. They said the study had failed to find an explanation as to why victims of crime are so often tortured.Indeed, this is a good question. The study reported that the history of structural violence inherent in the way in which colonialism and apartheid worked lay at the heart of the matter.
I suppose the idea is that if you are the victim of institutional violence simply because of your race then it legitimises violence on a personal level.Also, people would have observed brutal state action from police and other departments where there were no consequences. In short, impunity.Also connected to violent crime in the study were things like poverty, education, the destruction of family structures through the migrant labour system and, curiously, the abuse of alcohol by young mothers – often accompanied by domestic violence. Still further reinforcement.
While accepting the bona fides of the research done, it would be nice if the further research which the CSVR said was ongoing could provide answers to some of the questions. For example, there are places in the world where there is far more poverty than in South Africa but where there is less violent crime.It would also be interesting to find out what role is played by the fact that South Africa negotiated its revolution rather than fighting to the end. Is there a sort of feeling that violence is justified because there were no real winners and losers in the revolution?
There were some startling findings which should sound some alarm bells, one being that more than a third of the perpetrators of violent crime are 19 years and younger. That is truly scary and it points to problems with education and socialisation.
Having said all that, the criticism of the report does seem to be unfair. It is an astonishing piece of work and really does serve the vital function of bringing together what we know about violent crime in the country and putting it in an accessible form in one place.
There have also been complaints that R3.5- million of public money was spent and not much achieved. Also unfair. Anything that contributes to a better understanding of where we are and why we behave as we do is worth every cent.
In The Herald
Johannesburg - South Africa's "gender machinery" is in "disarray" with it not even being clear who is co-ordinating the 16 Days of Activism campaign, a group of NGOs said on Wednesday.
"At a time when it is most needed, participants noted, the national gender machinery is in disarray," read a statement from Gender Links and the Centre for the Study of Violence and Reconciliation (CSVR).
"There is a lack of clarity on which agency is driving the 16 Days of Activism campaign, which used to be housed in the department of local government, following the establishment of the ministry of women, children and disability in April this year.
"The ministry has yet to hold a consultation with civil society organisations. There has also been a deafening silence on the status of the 365 National Action Plan to End Gender Violence adopted in March 2007 and co-ordinated by the National Prosecution Authority (NPA)."
They said there is also still no specific "domestic violence" category which would enable monitoring of the crime. They called on the government to resuscitate the 365 Day National Action Plan to End Gender Violence.
'We can prevent violence'
Their statement followed a three-day symposium convened by the CSVR under the banner "We can Prevent Violence". They also called for the establishment of a special fund to end gender violence, in line with regional and international commitments.
In addition they called on Fifa to use the World Cup 2010 to send out strong messages in support of the campaign to end gender violence as well as HIV/Aids.
They said the 12% increase in reported rape cases to 71 500 from April 1, 2008 to March 31, 2009 may in part be due to the expanded definition of rape under the new act. The figures are unacceptably high and likely to be understated due to under reporting.
Government was also still "well behind" in reaching the target of 81 one-stop centres for addressing gender violence by 2010 provided for in the National Sexual Assault Policy.
The 16-Days campaign takes place every year from November 25, the International Day of No Violence Against Women.
It runs until December 10, which is International Human Rights Day.
Is he an astute politician who speaks to ordinary people's concerns, or a dangerous populist who may be undermining the Constitution? Jacob Zuma's controversial remarks on the pre-election campaign trail that has taken him around the country have left in their wake a number of questions - and while his comments may have hit the right spot with his audiences, constitutional experts and gender rights activists are not amused. The ANC president told a rally in the Western Cape last weekend that truant learners and pregnant teenagers "should be caught and sent to faraway boarding schools by force until they get degrees".
He accused teenaged mothers of abusing the government's child grant and talked about "a war on street kids". He also repeated previous remarks, including one that crime suspects enjoy too many privileges. But since he sensationally pronounced last year that he was willing to reconsider the death penalty, there has been little indication of how he wants to get this past the country's progressive human rights Constitution. The man is certainly playing to his audiences across South Africa's deep social divides. His allegorical, vernacular rally style contrasts sharply with his measured and reasonable utterances last week at the Cape Town Press Club, where his audience was a world apart from the mostly poverty-stricken people who turn up at rallies. Constitutional and human rights experts believe Zuma's campaign approach to be "dangerous" and "populist", one that's testing the limits of the country's Constitution. Some are incensed by Zuma's suggestion that teenaged mothers should be separated from their babies. "There is a complete lack of acknowledgement of the responsibility of the father in any of this. Teenage girls are a nice, easy cheap target and it plays to a conservative populism to bash teenage girls," is the verdict of Lisa Vetten, senior researcher at the Tshwaranang Legal Advocacy Centre to End Violence Against Women. "Frankly, for the ANC Youth League to have not said anything about this either, just goes to show how much they care about the difficulties that face adolescent girls. Why girls fall pregnant is a lot more complicated than we think." Two legal commentators say they believe aspects of Zuma's statements may be in conflict with the country's Constitution. University of the Western Cape constitutional expert, Professor Pierre de Vos, says if Zuma indeed meant that women should be forcibly sent away for education, he was making them into "criminals" when they were not accused before the law - "even more grave if it is directed at pregnant women". "It is obviously preposterous, because you once again make women the scapegoats and the men (who made them pregnant) get away scot-free. It is the old patriarchal approach," said De Vos. While acknowledging that the scope of teenage pregnancies was a shame to society, Unisa's Professor Shadrack Gutto said the ANC president's solution was not necessarily "child friendly", did not address the root causes of the problem and "from a constitutional legal perspective (was) very problematic". "As a safeguard you should build in the question of development of children," suggests Gutto. "In legal terms, the interests of the child (babies) come first, and critical to that is the interests of the child, for instance, in breastfeeding. "We know breastfeeding is universally acknowledged to be better for the child than other forms of feeding (although) other forms are not necessarily bad for the child." He said in this context, the statement "could violate the constitutional principle of protecting the rights of children" even before considering the interests of the mother. From the child's point of view "the statements are unfortunate and in many ways opposite to the principles of law". "We need proper reflection really on this issue - which is a populist statement not properly thought through," he suggested. But ANC national spokesperson Carl Niehaus believes Zuma has been misunderstood. The comments - often mistranslated - are derived from listening to communities where the problem of teenage pregnancies "means that mothers and grannies then have to look after the children of their children" and teenage mothers are stigmatised. Niehaus said Zuma was merely raising real concerns in communities that beg for a response from the government. He said that when teenagers leave a community to give birth, they are seldom welcomed back "because there is a kind of social sanction". "It is first of all not an attitude to let men walk off scot-free. It is important that young men are also kept responsible. The suggestion is not at all to withdraw the children by force, but where possible for them to be taken into a new community where they will be able to grow with the children," he explained. On the ANC president's statements that the rights of criminals should be curtailed, experts argue that this will not solve the underlying problem of weak judicial and police systems that result in offenders walking free. But what it does do is infringe on people's constitutional rights. The constitutional legal basic rights of all persons have limitations, stresses Gutto. "But then to be saying criminals should not have rights, really the ANC president is speaking in a language (that) I think is contrary to our Constitution and the principles of the right to freedom of movement and the rights of expression and freedom of association, which will be severely limited." Centre for the Study of Violence and Reconciliation's senior researcher David Bruce says that while there's evidence that a control-orientated approach to criminal justice is likely to convict more criminals, it also comes at the cost of convicting higher numbers of people who are innocent. Bruce warns that a human rights approach, however, depends on a criminal justice system which is staffed by people who are highly skilled and knowledgeable. South Africa has been struggling to get this right, but all efforts must be exhausted before we start intruding on human rights, he stressed. "Incarceration is a process which brutalises people. We are living in a country that is already severely brutalised. So we need to be very wary of it," he said. De Vos says it's a "typical politician's quick-fix" answer to complex problems in our deeply unequal society. But Niehaus stressed that Zuma had been trying to respond to communities' serious battles against crime and to encourage discussion about whether this could be dealt with "in a tougher way without transgressing the Constitution". Gutto also acknowledges the flip-side - that South Africa offers little for victims of crime. "If you put all those together, you can see where the sentiment is coming from - but the ANC president should not be speaking so loosely." Niehaus denied Zuma was being populist. "It is more about being sensitive to the issues being raised in townships and rural communities where things are really difficult. "These are really issues that I think he is quite right to raise," he stressed.This article was originally published on page 17 of Cape Argus on November 14, 2008
There was no need for court action to force the Gauteng provincial government to keep open temporary safe sites for refugees and asylum seekers until they were reintegrated into communities, spokesperson Thabo Masebe said on Monday. He was reacting to the announcement that the Wits Law Clinic and Consortium for Refugees and Migrants in South Africa (CoRMSA) were bringing an urgent application in the Pretoria High Court. They want the government ordered to communicate and implement a reintegration strategy which protects the rights of all, and to restore and not dismantle the Rifle Range temporary safe site until the reintegration strategy is in place.
"I don't know really what these people are looking for," said Masebe. There was no need for them to take court action, he said. "All they had to do was come to us." More than 62 people died, hundreds were injured and tens of thousands displaced in a wave of xenophobic attacks which started in Alexandra, Johannesburg on May 12 and spread to the rest of the country. The displaced have been housed in temporary shelters set up throughout the province since then. "All the shelters are still open, including the Rifle Range shelter," said Masebe. However, he explained that when people left any of the shelters any excess tents were folded up. Of about 1 700 refugees and asylum seekers at the Rifle Range camp at the height of the crisis, only 250 remained, he said. The rest had left after refusing to accept temporary identity cards from the Department of Home Affairs or finding alternative accommodation in their communities. Elsewhere in the province, there were still about 3 000 occupants of the safe shelters. "It's going down because people are leaving every day," he said, adding that 10 families left the Rand Airport camp on Friday alone. The government's key role had been to create conditions in all communities - starting with those where there was violence - for people to return to their homes, Masebe said. "They should be safe to do so. They should not fear that somebody will attack them again," he said. This had involved talking to the communities, which the provincial government had started in May. "It's not something that starts and stops. It starts and continues," he said. "I don't know what plan they are looking for." Civil society organisations have come out in support of the court action. While the need for legal action was regrettable, it was needed in the absence of the government's formal communication on a reintegration strategy, said the Reintegration Working Group. The group includes representatives of, among others: the Anglican Diocese of Johannesburg; the Somali Community Board; the Refugee Ministries Centre; the Coalition Against Xenophobia; His People Church; the Centre for the Study of Violence and Reconciliation; Mthwakazi Arts and Culture; and the Salvation Army. Masebe said the various groups could assist the government as political organisations and community organisations had done from the start. "That process goes on." In addition, the provincial government was talking to displaced people still at the shelters and who could not reintegrate on their own to find out what kind of help they needed. This included assistance with the building of shacks destroyed in the violence - in Ekurhuleni, communities were already helping in rebuilding efforts - or finding alternative accommodation. "There is no way as government, there is no way we are going to keep the shelters on a permanent basis.". The government did not want to create as permanent, separate settlements for foreign nationals, he said, adding that the government would oppose the court action. "It is not properly informed." - Sapa
In the Independent Online
Police corruption is likely to skyrocket if the Scorpions are closed down, the Centre for the Study of Violence and Reconciliation (CSVR) stated in a submission to parliament. "The SAPS is already riddled with corruption and is very bad at addressing the issue," CSVR senior researcher David Bruce argued. He said that corruption within the service could only be properly addressed if investigating units, with the "investigative sophistication" of the Scorpions, were allowed to remain independent of the police. The CSVR submission is but one of many which the chairperson of the National Assembly's Safety and Security Committee, Maggie Sotyu, expects to be waiting for her when she return to parliament next Tuesday.
The public has until Monday to make submissions concerning their views on whether the Directorate of Special Operations (Scorpions) should be closed and merged into the SAPS as called for by ANC resolutions passed at its December conference. The CSVR said that while it recognised that there were problems with the way the Scorpions were managed - as highlighted in the Khampepe Commission's report - these should be addressed without dissolving the unit. Closing the unit would do nothing to reduce the risk of the state abusing its power in the future by using similar units for its own political gain, the CSVR argued. "Creating a single agency with a monopoly of investigative powers is more likely to accentuate the problem," the CSVR said. Groups within the ANC along with the ANC's alliance partners have accused President Thabo Mbeki of using the Scorpions to carry out his political agenda against ANC leader Jacob Zuma. Meanwhile the Centre For Constitutional Rights (CFCR) on Wednesday described cabinet's decision to close the Scorpions as "irrational and arbitrary". It added it had a duty to draw attention to "conduct inconsistent with the constitution".This article was originally published on page 3 of Pretoria News on July 24, 2008
Brian Indrelunas The government should meet its "international obligation" to criminalise torture, says SA Human Rights commissioner Leon Wessels. He called explicitly outlawing torture "an international obligation" after speaking to representatives of non-profit groups and government departments at a seminar. "We can't just subscribe to the international rhetoric (without) ensuring that torture becomes a statutory crime," he commented. The Constitution lists the right not to be tortured and police policies refer to torture specifically, but "all other policy is devoid of the language", said Lukas Muntingh of the Civil Society Prison Reform Initiative. CSPRI and the Centre for the Study of Violence and Reconciliation (CSVR) hosted on Tuesday's seminar, which explored civil society's role in preventing torture.
Published on iol.co.za
Chomiak.L (2017). Tunisia: The Colonial Legacy and Transitional Justice.
Kambala.O. (2017). Benchmarking the Role of African Youth in Transitional Processes.
Yusuf. H. (2017). Nigeria: The Colonial Legacy and Transitional Justice.
Schkolne, Maya. 2015. Practitioner Perspectives on Transitional Justice: Tunisia. Cape Town: Centre for the Study of Violence and Reconciliation and Goedgedacht Forum for Social Reflection.
Brankovic, Jasmina, and Hugo van der Merwe. 2014. “Transitional Justice in Post-Conflict Societies: Conceptual Foundations and Debates,” in Moving Beyond: Towards Transitional Justice in the Bangsamoro Peace Process. Davao City: forumZFD Philippines.
Part of a publication that outlines transitional justice in the context of the current Bangsamoro peace process in the Philippines, this chapter provides a brief overview of the conceptual evolution of transitional justice. It then discusses challenges likely to be met in post-conﬂict transitional settings - namely, multiple armed groups, legal pluralism, ethnic and religious tensions, socioeconomic marginalization, and gender inequality - along with some of the strategies used to address these challenges.
Van der Merwe, Hugo, and Jasmina Brankovic. 2014. “Transitional Justice and Human Rights,” in SAGE Handbook of Human Rights, ed. Anja Mihr and Mark Gibney. Thousand Oaks, CA: SAGE Publications.
Presenting a brief, political history of transitional justice, this chapter shows the ways in which transitional justice is caught between international human rights' normative claims and local norms and constraints regarding delivering justice. The chapter was published in the SAGE Handbook of Human Rights, a two-volume set that analyses human rights issues of both contemporary and future importance.
Centre for the Study of Violence and Reconciliation and Zimbabwe Lawyers for Human Rights. 2013. Returning to one another: Easing engagement about things that matter: A treasure trove of ideas and exercises to build community and hold conversations that matter. Centre for the Study of Violence and Reconciliation and Zimbabwe Lawyers for Human Rights: Johannesburg.
Centre for the Study of Violence and Reconciliation and Zimbabwe Lawyers for Human Rights. 2013. At the confluence: Where human rights and conflict transformation meet: A selection of content and exercises that explore working at the confluence of human rights and conflict transformation. Centre for the Study of Violence and Reconciliation and Zimbabwe Lawyers for Human Rights: Johannesburg.
Centre for the Study of Violence and Reconciliation and Zimbabwe Lawyers for Human Rights. 2013. Framed! How the human rights framework shapes our engagements: A treasure trove of ideas and exercises to explore the framework that human rights offers. Centre for the Study of Violence and Reconciliation and Zimbabwe Lawyers for Human Rights: Johannesburg.