The Women’s Court: A feminist approach to in/justice

Courts of Women, a new paradigm

In order to do justice to the multitude of victims who suffered during the 1991–1999 wars fought in the wake of the break-up of Yugoslavia, a regional initiative brought together a number of women and women’s groups from all successor countries. These groups and individual women had a long history of political alliances in antiwar and/or feminist activism, cooperation and exchange, and last but not the least, personal friendships based on these political choices.

Women’s courts’ have been in existence for two decades. The women’s courts represent ‘a global movement that seeks to relook at rights and other notions of justice from the lives and life visions of women – particularly from the global South’ (www.eltaller.in, 2013, emphasis added). ¹

From the first women’s court, in Lahore, Pakistan in 1992 to date close to 40 tribunals and/or courts have been organized: in 1994 in Bangalore, in India, then in Cairo, and Tokyo; and then again in Bangalore, in 1995, but also in 1995 in Kathmandu, followed by women’s courts in Beirut, Beijing, Nairobi, Cape Town (2001), Lusaka (2004) and so on. Most of these poignant gatherings were held in what is referred to as the global South, i.e. in Africa, South East Asia and Latin America. During these proceedings a staggering range of human rights abuses were named: war crimes against women, violence and crimes against women committed in the name of customs and religion, military violence against women and whole populations, economic violence and violations of workplace rights, domestic violence against women, abuse of women’s reproductive rights, crimes against native people, specifically political violence … the list which names injustices against women, but also includes whole populations, goes on: ‘from the violence of poverty, globalization and development, the violence of cultures, caste and racism to the violence of military sexual slavery, nuclearisation and of all wars’ (www.eltaller.in, 2013). In many cases the proceedings of the alternative justice demands led to concrete steps by either the national or the international judicial mechanisms.

After so many proceedings, and sessions these courts and tribunals have crystallized some basic principles. They are not convened by official institutions – national or international – but by women’s groups and organizations and they are marked by the process through which they are being built. The duration of this process is not predetermined or assumed, but is dependent on the context. Very much emphasis is laid on the process itself since the aim of the court is, to a large extent, achieved precisely through a series of mobilizing activities throughout the duration of organizing the court, almost as much as on its culmination, the event of the court proceedings itself. This is because the process is primarily devoted to raising awareness about the violations of human rights, the awareness of the community, local – or as the case may be – regional, but also raising the awareness of the international community. The core of the process is listening to women since it is their testimonies which are the heart of the court proceedings. The women whose voices are heard at these public hearings have suffered grave injustice, they have been deprived of their rights, in a way in which it sometimes becomes difficult to even name all the rights violations to which they have been subjected; it is therefore a loss of a right to have any rights at all (Arendt, 1968: 296). ‘The unique feminist methodology evolved by the Courts of Women revolves around weaving together the personal, the political, the affective and the aesthetic. It seeks to invite the audience to relook at these issues not as experts but as witnesses to the violence of our times’ (www.eltaller.in 2013).

One of the landmarks of the process is that in its extensive format great care is taken that it is inclusive, meaning that a great effort is made to give a voice to all whose voices which have not yet been heard and, if it were not for this court, would not be heard. The process involves a wide circulation of the relevant information, a series of round table discussions, public debates, workshops, seminars and educational activities. Raising the awareness of the public also works through art: theatre performances, film screenings and exhibitions. It is therefore also an event of aesthetic significance, using artistic performances to deliver and spread widely the message that injustice was inflicted.

Women’s courts and tribunals are to some extent structured as legal proceedings, but it is only metaphorically that they are designated as a court or a tribunal. Even as a metaphor it may be somewhat misleading since in one fundamental aspect these courts are structured almost in direct opposition to legally binding proceedings. Namely, these proceedings are not adversarial, have no official, executive punitive (state) power, and therefore cannot enforce their judgements. But what also follows from this concept is that, precisely for that reason, they do not have to take into account what is otherwise referred to as the recognized rights of the accused, the indicted perpetrators. The goal of the process is much less on the emphasis on individual names, rather it is focused on naming and, as precisely as possible, designating the social, political, economic forces which have offered structural support to, and thus led to, injustice. Mainstream judicial processes have quite rightly protected everyone’s indisputable right to be treated as innocent until proven guilty; however, it is almost a truism to remind ourselves that, while protecting this basic human right, these processes have all too often allowed for injustice to go unpunished and the rights of those who have suffered to go unrecognized. Women’s courts and tribunals have in that respect – while focusing on those who have suffered – for decades been a public conscience and a reminder of this suffering. Importantly, many women have perceived this as a support. It is understood that these courts and tribunals have never presumed to present in any way a substitute for official judicial processes, but to be an important and a much needed supplement to them.

The process is centred on those who have suffered injustice, and recognition of their rights which have been violated. Women’s courts consist of women’s testimonies. They testify to their grievances, they tell their stories publicly to an audience which will empathize and offer support. Importantly, these testimonials are not of those who are usually referred to as victims, but, very much so, stories of survivors. Moreover, these are the stories not only of survival, but of resistance. They are personal and politically relevant testimonies bearing in mind that substantial political changes are not going to be brought about by following familiar paths, which have all too often neglected injustice. Perhaps these changes may be brought about by taking steps, albeit small ones, which begin with establishing the power of naming, rewriting the past, introducing and establishing new subjects, new authorities of history, and thus shaping new possibilities in the present for the future.

The proceedings act in a way parallel to a jury, inasmuch as they render a judgement, publicly condemning the violence. And, importantly, these proceedings, besides testifying to personal stories, also include a relevant political analysis which provides a context for these individual testimonies.

What is the result? It raises the awareness of a wide community about the violations of human rights. This court does not render verdicts, nor does it pass punitive sentences. However it does issue public statements which reach a wide, often international, audience and bring pressure to bear, not only on the perpetrators, but also on the institutions and decision making bodies, national and international. It also often makes recommendations on the follow-up to these processes. ‘The Courts of Women are public hearings. They are sacred spaces in which we hear individual testimonies of survival and resistance that guide us in our search for new paradigms of knowledge and justice that challenges the one, scientific, neutral, objective, universal knowing as the only way to know’ (www.eltaller.in, 2013).

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After having followed and supported ICTY ² it became clear to women’s and feminist groups in successor countries of Yugoslavia that the processes conducted by the existing institutional system and embedded in the mainstream concepts of justice – despite its efforts and certain achievements – would not address all the grievances of those who had suffered. Moreover, the approach to those who had suffered would not be in compliance with feminist insights. Therefore, the injustices suffered called not only for extending the concept of transitional justice – which was also being built and challenged throughout the 1990s – but definitively invited a feminist intervention into conceptualizing justice, especially since ‘many victims of sexual violence who have testified before the ICTY have found their experiences as witnesses humiliating and disrespectful’ (Franke, 2006: 818).

The initiative to start the process of establishing a Women’s Court was first voiced in Sarajevo in 2000 and supported by over 100 participants at an international conference on the new paradigms of justice. It was put forward by Zarana Papic (1949–2002), a feminist activist and theorist from Serbia, and, Corinne Kumar, the international peace activist from India. For a period of time, after Zarana’s death, the initiative lay dormant and was postponed owing to other issues, assessed at the time as more pressing.

After Milosevic died in 2006 in The Hague without a conviction, Women in Black, the most persistent and uncompromising feminist pacifist group in Serbia, revived the initiative to work on the Women’s Court primarily citing the numerous crimes committed by the Milosevic regime, pertaining particularly to the crimes committed during the wars that came in the wake of the break-up of Yugoslavia in the 1990s. The fact that Milosevic was not pronounced guilty, and was not convicted of any crime amplified what most probably would have surfaced anyway: that the officially acknowledged judicial system or systems, national or international, do not suffice in the process of reaching justice. The main indictment, a crime against peace, was broken down into the following long list of injustices suffered by many, formulated then and reproduced here in no particular order, because it appeared to have been a simple outpouring of many women’s voices: ‘persecution of those who are different (ethnic, ideological, sexual), forced conscription, pyramid bank schemes, poverty, smuggling, corruption, sex trafficking, prostitution, hate speech, war propaganda, war mongering, abuse of the educational system, using the educational system as an instrument of war, destroying physical, emotional and moral integrity of women raped in war, abuse of medical and health institutions for war purposes, producing nationalism, racism (targeting Roma), restricting the freedom to move, terminating communications, exodus of the young generation, taking away the future, police brutality against peaceful demonstrations and defenders of human rights’ (Kovacevic et al., 2011: 134) etc., etc. This resonated with a need to extend the limitations of mainstream concepts of justice.

The original initiative was that this public hearing – tribunal and/or court – was to take into account the period from September 1987, when the notorious 8th Session of the League of Communists of Serbia marked the beginning of Milosevic’s rise to political power, until the end of his regime, in October 2000, and it was to cover the whole territory of what used to be Yugoslavia. Meanwhile the initiative has evolved and now, the Women’s Court is to extend into the first decade of the third millennium and thus cover the injustices inflicted during that period also. The proposal was that this women’s tribunal/court was to be founded as a coalition of civil society groups and peace activists of the whole region. This was, then, at the time of the first decision – as it is now – still a challenge.

However, in 2007 another, related initiative was proposed, the commission RECOM. ³ It was assumed that this commission would include all the elements of the proposed women’s tribunal/court; but owing to the overwhelming task it faced, it became clear that this would not be possible, and although many civil rights, feminist and pacifist groups continue to support this important initiative, some of them once again picked up the idea of Women’s Tribunal/Court, yet again as a supplementary proceeding aimed at achieving justice for victims. The discussions were renewed and the idea of the Women’s Court revisited and once again articulated through a process which took place in 2008 and 2009 in Zagreb and Belgrade in a series of informal meetings. The core group which initiated the Women’s Court included Nuna Zvizdic (Women to Women, Sarajevo), Biljana Kasic (Centre for Women’s Studies, Zagreb) and Stasa Zajovic (Women in Black, Belgrade). In 2010 other feminist groups and activists from the region joined in: Nela Pamukovic (Centre for Women War Victims-Rosa, Zagreb), Ljupka Kovacevic (Anima, Centre for Women’s and Peace Education, Kotor), Rada Boric (Centre for Women’s Studies, Zagreb), Igballe Rogova (Kosova Women’s Network) and Dasa Duhacek (Centre for Women’s Studies, Belgrade), who is also the author of this text.

Finally, in October of the same year in Sarajevo there was a preparatory workshop entitled ‘Court of Women for the Balkans: Justice and Healing’. It was an international meeting which brought together experiences from Mexico (Sylvia Marcos), South Africa ( Ivette Abrahams), Cambodia (Vichuta Ly), Iraq (Erman Khamas) and last but not the least the exceptional, worldwide experiences of Corrine Kumar (Kovacevic et al., 2011: 134).

The decision therefore was to establish a Women’s Court. What followed was a thorough research process devoted to gathering and systemizing a large amount of data on the previous experiences of alternative justice proceedings. These included data on the earlier women’s courts and tribunals from Lahore to Cape Town and New York: searching through archives, films and video material. This was a learning process which used as its primary source the documented experiences of women whose suffering as victims of human rights abuses has, during their participation in women’s courts, strengthened them to become not only survivors, but a part of the politically articulated resistance to injustice. Each painful story induced eruptions of indignation, sometimes rage, always empathy. It was followed by a discussion, and sometimes by heated debate and, it had a mobilizing effect leading to a logical outcome: what was to be done? It became clear that facing injustice may well, in and of itself, given time, slowly lead to politically relevant consequences.

However, during that period another perception became clear, that this region needed to build its own, context-specific approach to setting up the process and organizing a women’s court or a tribunal. Women in Black as a feminist pacifist group made this and the coordination of numerous activities their priority. Other groups continued to support the process actively, but the coordination and negotiation which accompanied all the stages was the process for which, from then forward, Women in Black assumed full responsibility. The first stage of the process has ended. By the end of 2010, when the activities intensified, the main parameters were set and we entered the second stage of the process. The claim was that it is a feminist approach to justice (Kovacevic et al., 2011: 134). However, it became clear that the approach is centred round injustice.

Theorizing in/justice: Mainstream and feminist approach

A court or tribunal, according to any standard dictionary definition, is designated as an ‘instrument for administering justice’. The fact that the process of establishing a Women’s Court does not follow the mainstream judicial procedure is not surprising; but then it does not even follow any mainstream concept of justice. However, it may be even more surprising that this process does not actually follow any other conceptualizations of justice, not even those which themselves do not quite fall into the mainstream theoretical debates on justice; and, which may, perhaps somewhat arbitrarily, and in reference to mainstream concepts of justice, be classified or just named, as concepts of transitional justice and feminist theories of justice.

The process of establishing a Women’s Court lies, or more precisely falls between the cracks of the existing concepts of justice and is not being built on the basis of any one of these concepts. In order to clarify this we need to look more closely into these concepts of justice. The first is the mainstream concept of justice, developed over the centuries through complex theoretical argumentation, and in its modern version practically implemented as a part of a modern, liberal and a presumably democratic state. The second concept belongs to theories of justice which are developed within feminist theories which are critical of the mainstream. And the third concept to consider is, historically speaking, a relatively new one – that of transitional justice. It is understood and almost a truism that none of these concepts of justice is uniform since each presents a roughly simplified generalization, just a tendency of a general approach.

Concepts and models of justice are many, and although some may share one or more attributes, they mostly differ, sometimes in a profound way. In order to fully assess the approach of the Women’s Court today we can go back to the early, perhaps even initial, approaches to this important topic offered to us in Greek philosophy. Two different venues may be singled out, one the approach of Heraclitus of Ephesus, who in his dynamic, complex understanding of our world did not use justice, but quite astutely injustice as a point of reference, and Plato, who in his vision of the ideal enveloped the world in an aspiration to, and requirement for, justice.

According to Clement of Alexandria, Heraclitus from Ephesus left us a fragment (number 23) which read ‘They/Men would not have known the name of justice if these things were not’, meaning that we (here using the term men generically) would not know of justice if it were not for the lack of it, or, more precisely if there was no injustice. Therefore, Heraclitus focused his attention on injustice. It is my argument that this makes him significant in our contemporary conceptualization of the issue in question and is directly relevant to the way the Women’s Court is conceptualized. Namely, the Women’s Court does not use the approach through the (abstract) concept of justice, but instead it is grounded in addressing (concrete) injustice. Of course, conceptually speaking it would be hard to move forward into the analysis of the phenomena of injustice without the notion of justice. However, what placing justice as the point of reference and the defining concept has led to is the following: as this abstraction of justice has become stronger, the injustices have been diminished and have even had a tendency to fade away before our very analytical eyes. This is the same ‘tendency in philosophical ethics that allows one, having proved that evil is conceptually impossible or theft a contradiction in terms, to disregard the fact that people continue to go around murdering and robbing each other’ (Denneny, 1979: 263, emphasis added).

Taking Heraclitus seriously suggests that beginning to contemplate the issues of in/justice precedes Plato and Aristotle. However, it is these two major philosophers who have articulated the main parameters for understanding the problems concerning justice today. They have both, albeit each in a different format, placed the concept of justice as an overarching virtue and a meta-norm. This direction may have led away from the perceiving of injustice and easily overlooking its existence, its myriad, ever multiplying appearances. Some of Aristotle’s conceptual distinctions have been – undoubtedly owing to their applicability – carried to modernity. One of them is distributive justice (Aristotle, 1976: 177). This approach to justice sets forth the criteria for allocating the goods, but also status, privilege, position. In modern and contemporary theories, distributive justice plays an important role and will be critically assessed by feminist theorists of justice.

Along similar lines in modernity, after rising above the concepts of divine justice, after introducing and legitimizing secularization, one of the key approaches to justice is based on social contract theories. At the core of the social contract is the concept of justice, where the contract is a framework for equal (individual) rights and the law governing the political community. However, if from the outset the basic suppositions for entering the contract (i.e. reason and moral judgement) are denied to any person – as they have been denied to many, based on gender, ‘race’ and class – then they have simply been left out of the contract (Pateman, 1988)

The key contemporary treatise on the subject of justice is A Theory of Justice, written by John Rawls. His focus is on the justification of justice as the underlying principle of social and community organizing: ‘Justice is the first virtue of social institutions’ (Rawls, 1971: 3), he claims. Although he further claims that his approach will also offer ‘principles that govern how we are to deal with injustice’, he does acknowledge a limitation in that for the most part he examines ‘the principles of justice that would regulate a well ordered society’ (Rawls, 1971: 3). Therefore in the concept of justice which Rawls presents, the main attributes of the modern approach are fully developed: it is grounded on the social contract and it is conceptualized as distributive justice.

Rawls’ theory of justice was the main point of departure for the first feminist analysis of mainstream theories of justice. Susan Moller Okin addressed justice from a gender perspective, her main argument being that ‘[a] central source of injustice for women these days is that the law … treats more or less as equals those whom custom, workplace discrimination, and the still conventional division of labor within the family have made very unequal’ (Moller Okin, 1989: 4, emphasis added). Although she was aiming at a comprehensive analysis, for the most part she focused on the private sphere and the family. It was her argument, later taken over by many, that the family in offering the first and the early experiences of systematic injustice in a life of a young person can hardly school anyone in the principles of justice. Rawls is credited for being the only theorist who ‘treats the family seriously as the earliest school of moral development’ (Moller Okin, 1989: 21). However, this did not aid him in perceiving injustice in the ways that the traditional family is fundamentally structured. As opposed to this, Moller Okin’s leading question is ‘how [then] are we to become just’ (Moller Okin, 1989: 21, emphasis in the original), obviously targeting the family as the format of naturalizing inequality and thus educating one to become accustomed to injustice.

To underline: all feminist theories basically originate in the experiences of injustice, but if they approach the issues at all it is to theorize the concept of justice. The intervention of the Women’s Court is that it throws light on the injustice. More to the point, feminist theories are all inspired, even provoked, implicitly if not explicitly, by the pervasive injustices of the whole social and political order, regardless of whether it is private or public. However not many feminist theories approach the problem of discrimination by naming it and conceptually defining it through injustice per se (or even justice). For example, Carole Pateman does not, although she challenges the foundations of the modern political order, i.e. the social contract does not use in any aspect the argument of justice, in her thorough analysis of the different forms of the construct social contract (Pateman, 1988). Naming injustice as a point of departure has been even less the case. And even when that has been on the agenda, some blind spots still remain.

Nancy Fraser, in her book which bears the title Justice Interruptus (1997), examines the contemporary social order in a period of post real socialism, where presumably even the concepts of social justice have faded away. Her approach is aimed at retaining the approach of social justice through the principle of redistribution, but also taking into consideration the principle which marks the possibility otherwise denied to many, i.e. the principle of recognition. Both demands are based on injustices, one of unfair distribution and another of denied recognition, and interpreted either as socioeconomic, or cultural and symbolic injustice. And although Nancy Fraser quite rightly explains that socioeconomic injustice is ‘rooted in the political-economic structure of society’ (Fraser, 1997: 13) and cultural/symbolic is ‘rooted in social patterns of representation’, her whole approach is geared towards balancing the injustices she is interpreting and not primarily to addressing the pervasive structural injustices of the social order, which she claims to acknowledge.

The other contemporary feminist theorists who have analysed justice also deserve to be singled out, although clearly coming from different theoretical positions: Martha Nussbaum and Iris Marion Young. Without addressing the unfolding of these theories in detail, we can say that the difference between these concepts is that Nussbaum retains the traditional central conceptual paradigms, whereas Young, among other things, invests in not only ‘displacing the distributive paradigm’ but also challenging the argument of the social contract theory – therefore questioning the central parameters of the liberal political theory.

Martha Nussbaum explicitly states that ‘[T]heories of social justice should be abstract’ (Nussbaum, 2006: 1). In that respect she stands apart from the approach of the Women’s Court, and, precisely along those lines moves on to state that ‘one of the strongest’ approaches to justice is the idea of the social contract theory. The requirement for justice is best met within the presupposition of the equal worth of all persons, and this is assumed to be the grounding of the modern social contract. However, Nussbaum also acknowledges that the public–private distinction – and the social contract rests on that distinction – has not recognized the equal worth of women, or to be more precise, has allowed the inequality of women, both in the private and the public spheres, which she, in part, does recognize: ‘Attending adequately to the problem of gender justice … involves acknowledging that the family is a political institution, not a part of the private sphere immune from justice’ (Nussbaum, 2006: 1). Nussbaum especially singles out Rawls, as the most persuasive author of this foundational political theory, although she notes that he does leave some issues unresolved. These issues – doing justice to people with impairments, different and all nationalities, members of all species – may be resolved, claims Nussbaum, through/by what she calls a capabilities approach, where justice is – or should be – the outcome. It may appear that Nussbaum is close the idea of the Women’s Court. (Nussbaum, 2000; 2006: 82). However, in this context the problem is in the following: ‘my capabilities approach is another member of this family [i.e. family of liberal conceptions] and thus my proposal to add to the Rawlsian conception advances, rather than displaces, Rawls’s larger project’ (Nussbaum, 2006: 6, emphasis added). Therefore, Nussbaum retains the traditional approach of liberal political theory where the social contract is the central conceptual paradigm, with its presupposition of the private/public dichotomy, and the implicit inequality of women. This approach does not recognize either the theoretical contribution nor the political implications of the sexual contract which underlies any form of the social contract (Pateman, 1988).

Although Iris Young does not discuss social contract theory extensively, she clearly states that it cannot serve as a point of departure in her theoretical approach to justice. Contractual relationships are for the most part established between individuals, as members of social groups, and not – as the theoretical assumptions underlying social contract would have us believe – between individuals who have formed associations. In order to explain this she differentiates between an association and a social group, precisely through a relationship which an individual establishes with them. ‘Individuals constitute associations, they come together as already formed persons and set them up, establishing rules, positions. … Groups, on the other hand, constitute individuals. A person’s particular sense of history, affinity, and separateness, even the person’s mode of reasoning, evaluating, and expressing feeling, are constituted partly by her or his group affinities’ (Young, 1990: 44–45, emphasis added). Therefore the position of the individual as a member of a social group – where s/he is within the social contract – allows for less possibility to challenge the existing political framework and the ossified social order of injustice. The problem with the distributive paradigm is that ‘it does recognize the limits of logic of distribution’ where the ‘scope of justice’ is identified with distribution, which has a ‘focus on possession’. The problem is not only that everything is assumed to be quantifiable and measureable, but that this reification of social life and relations and processes is reduced to ‘what individuals have, how much they have, and how that amount compares with what other persons have’ (Young, 1990: 25). Young concludes that neither the social contract nor the distributive paradigm can suffice in dealing with the structural injustice of the existing social order. It is the structural injustice to the individual which determines her theoretical position.

Stepping away from the theorizing about justice, instead of falling back on traditional philosophical theorein, as oriented towards looking, Young in this respect follows Lyotard; and he gives absolute priority to listening, precisely because this concerns ‘the game of the just. And in this game, one speaks only inasmuch as one listens, that is, one speaks as a listener’ (Lyotard, in Young, 1990: 4). Furthermore, Young goes on to emphasize that ‘[j]ustice … claims … are … calls, pleas, claims upon some people by others. Rational reflection on justice begins in a hearing, in heeding a call, rather than in asserting and mastering a state of affairs, however ideal. The call to “be just” is always situated in concrete social and political practices that precede and exceed the philosopher’ (Young, 1990: 5, emphasis in the original).

Although nominally Young appears to follow what has been the main political and ethical terminology, namely the concept justice, her concern is injustice. It is this core concept which defines her position. ‘Normative reflection arises from hearing a cry of suffering or distress, or feeling distress oneself. The philosopher is always socially situated, and if the society is divided by oppressions, she either reinforces or struggles against them. With an emancipator interest, the philosopher apprehends given social circumstances not merely in contemplation but with passion’ (Young, 1990: 5–6). This is why she goes on to address the structural problems of oppression and domination as defining issues of injustice. And, with this approach Iris Marion Young comes very close to the concepts of the Women’s Court: while pressing us to listen to those who have suffered injustice, she almost recycles the claim that ‘[t]he unique feminist methodology evolved by the Courts of Women revolves around weaving together the personal, the political, the affective’ (www.eltaller.in, 2013).

To conclude, the difference between Nussbaum and Young is that while the former is attempting to remedy the central paradigm of the social structures, the latter is questioning it and opening the possibly to subvert it. Therefore, with the exception of Iris Marion Young, for the most part, the feminist approach to justice and injustice has not overturned the mainstream approach.

Transitional justice

The events of the Second World War mark a turning point in questions of justice and injustice. When we claim this, we then refer to the following ‘facts [which] are: that six million Jews, six million human beings were helplessly … dragged to their deaths. The method employed was that of accumulated terror. First came calculated neglect, deprivation, and shame. … Second came outright starvation, combined with forced labor, when people died by the thousands. … Last came the death factories – and they all died together, the young and the old, the weak and the strong, the sick and the healthy; not as people, not as men and women, as children and adults, boys and girls, not as good and bad, as beautiful and ugly – but brought down to the lowest common denominator of organic life itself, plunged into the darkest and deepest abyss of primal equality, like cattle, like matter, like things that had neither body nor soul, nor even a physiognomy upon which death could stamp its seal’ (Arendt, 1994: 198).

Hannah Arendt at first responded to these facts with disbelief. It ‘was really as though the abyss had opened’ (Young-Bruehl, 1982: 185). She, as Giorgio Agamben after her, later articulated her response as a lack of – coupled with an absolute necessity to – understand/ing. ‘Thanks to a series of increasingly wide-ranging and rigorous studies … the problem of the historical, material, technical, bureaucratic, and legal circumstances in which the extermination of the Jews took place has been sufficiently clarified. … The same cannot be said for the ethical and political significance of the extermination, or even for a human understanding of what happened there’ (Agamben, 1999: 11, emphasis added). To aim was to look ‘[b]eyond the capacities of human comprehension … and beyond the reach of the human justice’ (Arendt, 1994: 198, emphasis in the original).

It is in recognition of these staggering, frightening events that the international community established a series of mechanisms and practices later to be designated as, and commonly referred to, as transitional justice. These practices were an attempt to establish or perhaps even restore justice but were, in effect, recognition and acknowledgement of injustices already committed. ⁴

Although the scope of issues addressed under the umbrella of transitional justice is built around the legal procedures, it was precisely because the laws and legislatures/judiciary, national or international, could never encompass the complexity of the problems – it is therefore for those reasons that the transitional justice widened its scope so that today it includes political, social, philosophical, historical and artistic approaches that need not be accurately placed under any of the aforementioned rubrics.

The legal approach remains the core of transitional justice. The precedent was the International Military Tribunal in Nuremberg which started at the end of 1945 and delivered its verdict almost a year later. It was clear not only from the first of such proceedings, but even more so in the aftermath of dealing with other post-totalitarian and post-dictatorship systems that the legal approach itself was first open to legal problems. Namely, one of the main principles of the rule of law is that one can be tried only under the laws valid at the time of the alleged criminal act (Teitel, 2000: 13). If we were to follow this principle we would have to conclude that no one accused in the Nuremberg Tribunal had broken any laws. The counterargument could only fall back on moral, or even more problematic, political rationale.

However, even if the legal system could provide an unproblematic framework it was evident in many cases of the violations of human rights that the legislature, in and of itself, cannot and will not respond to the need and expectation for justice, since history points out that whole communities deny even the fact that crimes did take place and consequently deny their responsibility for the crimes which were committed (Cohen, 2001). Moreover, the requirement for substantial changes of the political communities where such violations occurred would not undergo any substantial changes if a full scope of measures, well beyond the legal procedures, were not undertaken. Some of these measures and mechanisms, shaped over the second half of the 20th century experiences of unthinkable violations of human rights and challenges to humanity, included, but are not limited to: truth and reconciliation committees, lustration, opening secret police dossiers, rehabilitation of political prisoners, reparations, public apologies, archives, memorials and museums …

However, as significant as these extensions of legal measures were, they did not necessarily include a gender perspective. Transitional justice mechanisms attempted to remedy this, especially in the aftermath of the Balkan conflicts. ‘Efforts to “add gender” to transitional justice have been most prominent with respect to legal treatment of sexual violence in conflict. In the course of [the] 1990s the major focus of transnational feminist mobilization concerned the need to end impunity for violence against women.’ (Bell and O’Rourke, 2007: 26).

Even more importantly, the critique was that the concept of transitional justice should be reassessed, since it is ‘inevitably linked to a notion of what is the transition “from” and “to” ’ (Bell and O’Rourke, 2007: 35). This surfaces prominently with the idea of restorative justice. Namely, ‘the notion of “restoring” that lies at the heart of this conception of justice speaks of a return to a set of relationships that for women may have been fundamentally unjust’ (Bell and O’Rourke, 2007: 41, emphasis added). Following some of the historical instances it becomes clear that ‘rebuilding post conflict societies is almost inevitably a process of re-masculinization’ (Franke, 2006: 824).

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There is an important distinction between these two contemporary venues of conceptualizing justice, i.e. mainstream and transitional. Although they appear to be running along parallel lines in one important respect they are going in opposite directions and consequently often bypass each other. Namely, one is turned towards the future and the other towards the past. It is the conceptualization of justice in its normative format which aims at being generalizable in its prescriptive mode and it is turned towards the future. Transitional justice is inevitably turned towards the past. Moreover, it dwells in the past, because it is not so much about the justice, but precisely because it is about the injustice. It addresses the issues applicable only post festum, after the fact, it fills the gaps which appear to remain in time and are created by grave injustices, those which are already committed and are therefore irreversible. However, without addressing these injustices which to victims appear almost as gaps in time, are perceived as time stolen, it will hardly be possible to lay a solid foundation for the future. Unless dealt with, the past will remain in the present and the future will stay out of reach.

The Women’s Court, again

Whereas the international community had access to the full disclosure of all the violations of human rights throughout the 1990s during the break-up of Yugoslavia, through independent media, peacekeeping forces, human rights organizations, activists, researchers, the case was quite different with media manipulation of public spaces in the successor countries – and this refers mostly to Serbia. The problem of course was not that the facts on mass murders, genocide, forced exile, mass rape were not known. Anybody who wanted to know could have. But the political set-up created and manipulated by the Milosevic regime allowed for many who chose to deny these facts an easy way to do so. Without further extending the issue of civic responsibility and individual moral issues, the point here is that it was then, and even more importantly, still is possible to persist in maintaining this state of denial (Cohen, 2001). The consequences are dire: not any of the political, economic, cultural factors, or problems in educational systems or health care, can be fully explained, since they are left without any serious resolution as to their origins (for example, Serbia’s official statements about the 1990s still maintain that Serbia was not at war).

The Women’s Court in Serbia, definitely, but most probably in other successor countries also may contribute to dealing with this state of denial. And this would be its political significance. To reiterate: the initiative to set up a Women’s Court that was to follow from the wars fought after the break-up of Yugoslavia was present in the minds of feminist activists for almost a decade, but it was only after the meetings in 2010 that it entered the second stage and moved from an idea towards its realization. In the decade in which it first surfaced it appeared that the parameters were set and the way the Women’s Court was organized by El Taller would be strictly adhered to. However, from the outset of intensifying activities in the second decade the emphasis was on giving voice to the women from what was once Yugoslavia and thus articulating a context-specific process and it was agreed that Women in Black from Belgrade would coordinate activities on behalf of the Initiating Board. ⁵

The first round of intensified activities was focused on a series of seminars, with a double purpose, one to listen to women’s grievances and to hear from them the criticisms of their respective state institutions, but at the same time to inform and educate all activists who were involved in the experiences of alternative systems of establishing justice. The unprocessed grievances, unanswered resentments, processes of mourning which were rarely heard and almost never received a response – all these when carefully considered will comprise the contents of the Women’s Court proceedings. The point here is precisely that there was never any recognition of numerous – at times what even appears to be an endless number of – violations of human rights.

In the second half of 2011, a series of workshops/trainings were organized for many activists in order to assist them in preparing public presentations at the Women’s Court. Varied, numerous materials, such as videos, films, brochures, for these training seminars were all prepared and distributed by Women in Black. In a geometric progression, the number of public presentations of the initiative to hold a Women’s Court grew and spread the convincing stories of women’s response to violence and resistance to the violations of their human rights. Importantly, the feedback from these presentations also grew and the structure of the Women’s Court began to take shape. Namely, it became clear what the process of working towards the Women’s Court was bringing – the voices of many women from every part of what used to be Yugoslavia.

Besides the presentations of materials concerning the previous alternative justice systems, such as tribunals and courts, every public presentation included a discussion about the following issues: first and foremost, a response to the proposition of organizing the Women’s Court, and as the majority responded with a positive answer then the main question was which issues should such a court address, where should it be held, and which period of time should be covered. The issues were slowly articulated, taking shape and finally crystallized. The testimonies of witnesses would address the following violations of women’s rights: ethnic violence, militarism, gender-based violence (war rape, domestic violence, political repression of women human rights defenders) and economic violence against women. After a series of discussions each group, each country focused on gathering, documenting, as concretely as possible, individual stories of ethnic or economic or gender-based violations of human rights. It was also clear that they could not be easily differentiated, set apart, so that ethnic violence spilt over into poverty and economic deprivation, war rapes were ethnically motivated, and so on. Once thus specified, the activities in 2013 were focused, more and more, on bringing potential witnesses into the process of building up the Women’s Court for Yugoslavia, and listening to often painful stories of individual women, their grievances and resistances; this was becoming the core of the process. These women, regardless of the support of many other women around them, will have to face fears for their personal safety and the safety of their family members as they relive their traumatic experiences.

The time covered by the Women’s Court should extend into the last decade, since the conclusion is that peace is not just the absence of armed conflict, but much more. The locus of this important event had significance. The suggestions were either Belgrade or Sarajevo with directly opposing explanations, the first that it was ‘the belly of the beast’ regarding the wars fought in the 1990s, and the second that it was the city which suffered the most. This issue is not resolved to date, although the decision is more likely to be Sarajevo.

The number and the substance of activities organized in the region, and, to a large extent coordinated by Women in Black, as well as the local women’s groups, are impressive: there were 33 public presentations on the Women’s Courts and/or Tribunals organized in 28 cities, with the participation of close to 450 activists. However, if the total number of all activities (public presentations, consultancy meetings, seminars and workshops) connected to the process of preparing and organizing the Women’s Court is considered then these figures are even higher: 200 civil society groups have given their support in over 100 cities and towns of what used to be Yugoslavia; this included over 4000 participants and over 250 activists who had planned, organized and carried out all these activities (Report for 2013, zenskisud.org).

Parallel to the public presentations there were consultancy meetings among the organizers/leaders of these presentations. These meetings provided the much needed space and time for exchanges of sometimes very diverse experiences and responses to the presentations of the materials on women’s courts generally and also included the debates on the many aspects of organizing the Women’s Court in our region. These meetings led to the conclusion that the specificities of each context following from every successor country of Yugoslavia must be acknowledged and taken into account in the next steps of organizing this process. Thus the process became increasingly complex, inasmuch as the context here refers to the respective differences within different states, which in turn aspire to mark their national identities. As is known, but at this point needs to be underlined, the clear aspirations of making nation-states were not met in all cases during the wars in the 1990s. It is my assessment that these issues have been brought to bear on the identities and political choices of all the actors involving the conceptualization and will continue in organizing the Women’s Court for Yugoslavia. However this requires further clarification and caution since the process is still an ongoing one and the complexity of the issues can only grow in complexity, even become more entangled.

The assumed principle of the core group, though not explicitly formulated, albeit sometimes unfolded in its detail and articulated as a feminist code of this particular process, is that we will abide by our own political choices of peace and (feminist solidarity), consciously building a critical distance from our respective nationalist policies.

These issues will be raised against the backdrop of different, often divergent political settings and yet, the goal is that they remain in harmony though certainly (need) not be in unison. For example in Serbia the issues will be raised against the backdrop of strengthening nationalist, right-wing retrograde political forces; in Kosovo this is happening against the background of the founding of a young nation-state; in Bosnia in a somewhat dysfunctional political union of former war enemies coming from different ethnic/national/religious/cultural background, and so on. Yet, from each of these successor states there are one or more representatives on the Initiative Board, who have initially gathered as feminist activists with a long history of political alliances, camaraderie, mutual support throughout difficult times and last but most certainly not least – more than two decades of building personal friendships. There are, also, albeit to a much lesser extent, generational divisions, the core group belonging to the old alliances, and some younger activists joining in at a later date.

While refraining to pass any judgement whatsoever, or assigning any value judgement, we need to be aware that among these some are preoccupied with supporting their respective nation-states in the making; to make matters more complicated the nation-building process was and still is challenged, attacked, injured precisely by the states whose citizens are activists belonging to the same core group. Therefore the most challenging task will be to balance the loyalties, political and other choices and options within the process. These loyalties are diverging from one another. A concerted effort leading to a common goal of addressing different injustices will require extremely nuanced political options.

However the process is already well under way. If successful, it will be against all odds, and have the effect of a political miracle, comparable only to creating after the First World War, the country Yugoslavia from the opposing sides in the same war. At the same time it will be a concrete policy statement distinct from the abstraction of justice, and, in keeping with the theoretical standpoint of placing injustice as a point of reference in our real world.

During the recent period there were meetings of the Initiative Board. At one of the meetings in Skopje in February 2013 it was agreed that this group would be renamed the Organizing Board. The dates hereto only proposed were then agreed on by consensus: November 2014 was going to be the time when the Women’s Court for the crimes against peace during the period of 1991–1999 in the Balkans was going to be held. We have entered the third stage, leading to the final event, the Women’s Court. Meanwhile, the dates have been postponed to the spring of 2015, the main problem being that of raising funds to cover the minimum of expenses. The core group is still faced with a complicated task at hand, namely navigating through the maze of mapping the next very intense activities of the process leading to this event. This means continuing to listen and hear the voices of women, people whose rights have been denied, violated, pulling these voices together so as to create a harmony of strong, clear tones which will send an unequivocal message into the public space. The message should be an outcry against injustices.

The Women’s Court for Yugoslavia will not produce any names – since that is not the goal – but it will clearly point to and offer ample evidence of the institutions and forces within the public scene – the concrete social, economic and political forces which should bear the responsibility of decades of devastation. But what will give it strength is the passion of this older generation of feminists from what was once Yugoslavia. It will be a legacy of a generation of feminist activists who, consciously or unconsciously, are burdened with responsibility, even at times with a feeling of guilt, because they did not – regardless of the fact that they could not – prevent or save or rescue or guard against or stop the brutal conflicts. None of this was achieved despite decades of tireless peace activism. So, the feeling is one of having a debt. Now, instead of joining in the palliative simulations of political solutions – often project/donor driven – or useless prescriptions and so-called healing therapies, these women just want, before taking their leave of the public scene, to cry out at the top of their voices an articulate, loud, resolute no to all injustices.