Religious and Cultural Traditions in Transitional Justice

by Landon E. Hancock and Aysegul Keskin Zeren
from Journal of Religion, Conflict, and Peace

Transitional justice mechanisms are typically created to aid societies moving from authoritarian rule or as part of a post-conflict reconciliation process. For the most part their construction reflects one of two trends that have developed in the wake of the Second World War. The first is the legacy of the Nuremberg Tribunals, established in order to reassert the rule of law and, to a lesser extent, to legitimize post-Nazi Germany’s government as separate from that which prosecuted the war and conducted the Holocaust.^[1] The second is the rising use of truth commissions, originally used as alternative mechanisms when tribunals proved difficult or impossible to implement, but increasingly seen as valuable in and of themselves as mechanisms for inducing healing and reconciliation.^[2]

Much has been written about the relative strengths of tribunals versus truth commissions. Which, for instance, delivers more justice? Which provides for more long-term reconciliation? Or how do both mechanisms operate in the same environment?^[3] One area explored less often is the cultural relevance of each of these mechanisms and whether or not there is a “good fit” between any particular transitional justice mechanism and local cultural and religious traditions. A few studies have examined the role of religion itself—as separate from culture—focusing largely on the role of religion in the South African Truth and Reconciliation Commission; but to date none has tackled the larger issue of culture.^[4]

This paper seeks to problematize the role of religious and cultural traditions in transitional justice mechanisms, paying attention to the nature of local traditions, the extent to which they are reflected in the chosen mechanism, and the overall result in terms of meeting the stated goals and satisfying the affected populations. In doing so, we will apply portions of a framework developed by Julie Mertus to examine the effectiveness of international tribunals by matching their functions to interested audiences. Mertus’ examination compares six functions common to tribunals with the interests of three broad constituencies: the international community, local power brokers, and survivors, victims and bystanders.^[5] Our examination uses Mertus’ ideas that transitional justice mechanisms have the ability to speak for and to serve different populations. However, since we are extending our examination beyond tribunals to encompass truth commissions and other local mechanisms, we are moving beyond her six functions to focus largely on the extent to which mechanisms receive the approval of different constituencies and whether a high degree of congruency between the mechanism and local religious and cultural traditions results in a higher degree of approval by survivors, victims and bystanders than those mechanisms that seem otherwise to be primarily serving the international community.

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by Syed Manzar Abbas Zaidi in the Journal of Religion, Conflict and Peace

The word jihad derives from the Arabic root jhd, signifying intense struggle or effort. It has the connotations of a moral struggle within one’s own self, besides denoting an armed struggle. It thus carries the hermeneutical meaning of a moral endeavour directed toward one’s own improvement or self-elevation on a moral plane, which Muslim jurists of eminence have been quoted as calling jihad-e-akbar, or greater jihad. On the other hand, preparations and participation for defense against an armed conflict that is the consequence of foreign aggression has been known as qitaal, or jihad-e-asghar, lesser jihad.

Islam does not lay down boundaries between religious and social values; its laws cover not only ritual, but practically every aspect of life, including the mundane. Four main sources of Islamic law, in decreasing order of importance, are 1) the Qur’an as the supreme source; 2) sunnah, or the life of the Prophet as an example to be followed; 3) the consensus of Muslims as a community or a polity (ijma‘); and 4) reasoning by analogy, with precedents by scholars or jurists (qiyas). Another important source that has been relegated to lesser importance, but perhaps which is most important in the prevailing context, is ijtihad. This is the process of making a legal decision by independent interpretation of the legal sources in the context of prevailing circumstances. In the absence of ijtihad (adjudication), Qur’an, sunnah, ahadith and ijma‘, representing a substantial core of Islamic literature, amount more or less to dictates of shari‘a, unless an existing decision is changed on the basis of further adjudication. This is because shari‘a law, within the confines of Qur’an and sunnah, and supplemented by ijma‘ and qiyas, serves as the only legal framework within which the public and private aspects of life are regulated for those living in a legal system based on Islamic principles of jurisprudence, and for Muslims living outside the domain. Thus, in the absence of ijtihad, emphasis shifts heavily to the texts, doctrines, and precedents rather than adjudication based upon existing circumstances, which was the forte of ijtihad. With the closing of the gates of ijtihad from about the tenth century onward, the centuries of intellectual evolution that characterized the hitherto progressive Islamic juristic discourse suffered an irreversible setback. Simultaneously, emphasis gradually shifted to greater reliance on the existing body of literature and thus on formal textualism, particularly involving the Qur’an, often selectively.

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by R. Scott Appleby in the Journal of Religion, Conflict and Peace

While hardly new in world politics, religion has returned in force to the international agenda. The Shi‘ite revolution in Iran (1978-1979) and the political awakening of the New Christian Right in the early eighties in the United States roughly coincided. Both events surprised journalists and politicians who bought in to a version of the secularization thesis and therefore underestimated or ignored the enduring power of religion to mobilize protest movements. The nineties saw the increasing prominence of Hamas (Sunni), Hezbollah (Shi‘ite), and Gush Emunim (Jewish) in shaping the conflict in the Middle East, the electoral and cultural successes of militant Hindu nationalism in India, and the spread of Sunni Muslim radicalism, Al-Qaeda style, in parts of the Middle East, Africa, and South Asia.

Yet the U.S. government was slow to respond effectively to situations where religion played a major role. Even after the establishment of the Islamic Republic of Iran in 1979, it was commonplace to hear U.S. officials describe the Ayatollah’s revolution as fundamentally a secular movement—a socio-economic protest cloaked up in pseudo-religious wrappings. There is perhaps no more eloquent testimony to the secular bias that has distorted U.S. foreign policy than the fact that the word “religion” does not appear in the index Diplomacy, Henry Kissinger’s encyclopedic account of American statesmanship, published in 1994. Nor does it appear in the index to Paul Collier’s recent book about world poverty, The Bottom Billion, despite the fact that many of the conflicts involving religious actors occur in underdeveloped countries.

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