24
1, Winter 2017
APPLIED ANTHROPOLOGY IN
TRANSITIONAL JUSTICE
By Jaymelee J. Kim
Abstract
The dissonance between local
and global transitional justice
imperatives has been the source
of interdisciplinary debate with
scholars highlighting the tensions
between theory and practice.
While researchers such as Sally
Merry have discussed the human
rights practitioner as a transla-
tor between global international
human rights norms and local
cultural understandings, little has
been said regarding the potential
for anthropologists to translate
transitional justice between the
state and survivors. This article
demonstrates the need for ap-
plied anthropology in transitional
justice models, illustrated with
data drawn from the Canadian
national transitional justice con-
text. In this project, ethnographic
data gathered from 2011-2014 is
used to analyze the independent
assessment process, or monetary
reparations process. Using this
example, I demonstrate a need for
anthropological “translators” who
can assess need, evaluate risk,
and utilize a participatory action
approach in transitional justice
development.
Key words: transitional justice,
Canada, participatory action
Introduction
P
ost-conflict reconstruction and the
aftermath of mass violence cross
sub-disciplinary bounds to garner the
attention of both research and praxis
oriented anthropologists. While the
application of transitional justice has
increased, the role of anthropologists,
PRACTICING ANTHROPOLOGY
arguably, has not. Scholars have noted
anthropology’s lack of, albeit growing,
engagement with this temporary justice
model (Hinton 2011). Thus, the ques-
tion is put forth: how can anthropolo-
gists apply their knowledge and skills
to the process of transitional justice?
To answer this question, data and
analysis are drawn from approximately
twelve months of fieldwork conducted
in Canada between 2011 and 2014.
Ethnographic data collection relied on
informal and semi-structured inter-
views, observation, and participant-ob-
servation that occurred primarily in the
lower mainland of British Columbia.
Participants included, but were not lim-
ited to, facilitators of the various tran-
sitional justice mechanisms, religious
leaders, Indigenous community leaders
and members, and a number of grass-
roots organizations. Findings suggest
the need for anthropological engage-
ment in transitional justice processes to
assess need and risk while utilizing a
participatory action approach.
The Canadian Case
At the time of the study, Canada had
incorporated transitional justice at the
national level to provide redress for
the human rights violations manifested
through the creation and use of Indian
Residential Schools. As the result of a
class action lawsuit, the 2006 Indian
Residential School Settlement Agree-
ment outlined a response to the forced
assimilation, physical abuse, sexual
abuse, neglect, and violence that oc-
curred in government-sponsored and
church-administered Indigenous board-
ing schools. It should be noted that
other aspects of colonial or settler co-
lonial policy were not included in this
lawsuit; accordingly, the mandate of
the settlement agreement was specifi-
cally limited to the residential schools.
For those unfamiliar with transitional
justice, methodologically, it is often
Vol. 39, No.
described as a framework designed to
provide redress for rights violations that
a population experiences under its own
government. Originally created to fa-
cilitate government transition into a de-
mocracy, it is now applied to a plethora
of contexts (Hinton 2011). In pursuit of
three goals (i.e., justice, accountability,
and reconciliation), transitional justice
employs a wide array of mechanisms.
Judicial international criminal tribunals
may be established to try war criminals,
or governments may create investiga-
tive truth commissions charged with
collecting testimonies, evaluating docu-
mentation and archival evidence, and
generating informative reports. Another
commonly seen mechanism in transi-
tional justice models includes amnesty
for perpetrators with the hope of ex-
tracting more information by removing
a fear of punishment. Some have argued
that amnesty may also aid in societal
unification between individual victims
and perpetrators who were once in
conflict with one another. Reparations,
which may or may not be monetary,
may also be used, as survivors have lost
family members and familial breadwin-
ners, suffered trauma, and lost land or
resources. Finally, memorialization or
commemoration projects seeking to
prevent historical revisionism, to honor
the dead, or to remember the events
that transpired may be incorporated
into the process. This not a comprehen-
sive outline of examples but highlights
commonly seen mechanisms that can be
utilized.
In the Canadian context, a truth and
reconciliation commission (TRC) was
put in place and tasked with record-
ing survivor statements, documenting
how many children reportedly died or
disappeared during residency at the
schools, hosting seven national events,
establishing a national research center,
and utilizing an Aboriginal advisory
board. Commemoration grants were
also awarded under the auspices of the
Vol. 39, No. 1, Winter 2017
TRC, supporting an array of projects
that ranged from hosting conferences
to creating art entrenched in symbol-
ism. Finally, a common experience
payment was made to survivors, and an
independent assessment process was
formed to allow individual cases of
sexual and physical abuse to go before
the court. The common experience
payment provided a base payout of
$10,000 with an additional $3,000 per
year of residential school attendance.
Additional monetary funds awarded
during the independent assessments
reportedly could reach $150,000.
As the described transitional justice
model was unfolding at the local, or
ground, level, the impetus for this
article stemmed from primary research
questions which asked what stake-
holder perspectives were, how they
were consistent or in conflict with one
another, and if and how the transitional
justice process furthered structural
violence or revealed persisting settler
colonial power dynamics. These ques-
tions were inspired by Sally Merry’s
(2006:39), Transnational Human
Rights and Local Activism: Mapping
the Middle, in which Merry describes
human rights practitioners as trans-
lators who “refashion global rights
agendas for local contexts.” In other
words, Merry describes the human
rights practitioner as one who poten-
tially puts local level issues into global
human rights context and vice versa,
bridging the middle space between
international human rights laws and
norms and the local cultural under-
standings of violence. Inspired by the
notion of human rights being translated
through an intermediary, the research
here questions stakeholder perspectives
to identify how anthropologists could
and do translate justice. Ethnographic
data collection occurred during the
active period of Canada’s transitional
justice process, and the potential for
anthropology to engage transitional
justice models is assessed.
Transitional Justice in Practice
The presence of applied anthropol-
ogy in transitional justice mechanisms
PRACTICING ANTHROPOLOGY
was evident in Canada, yet anthro-
pological engagement in the process
and creation of transitional justice
was not. First, a number of anthro-
pologists completing applied work in
the transitional justice process were
identified, and these anthropological
roles took many forms. Some were
volunteers, students, employees of the
TRC, or subcontractors. The examples
of anthropology in practice repre-
sented many subdisciplines, most of
which are relatively unsurprising. For
instance, historic archaeologists and
archival anthropologists were tasked
with sifting through residential school
records and establishing a database
of information, archaeologists exca-
vated residential school sites seeking
evidence in the material culture left
behind, and others still were charged
with investigating what happened to
the children who did not return home
from the residential schools. The latter
also left room for forensic archaeolo-
gists and biological anthropologists
who may be needed for future grave
documentation and excavation of the
residential school cemeteries. As these
informants were encountered in the
field, it became clear that anthropol-
ogy was being applied much as it is
described by Clyde Snow, Mercedes
Doretti, and others who investigate
mass graves, gather historical evi-
dence, and interview witnesses.
These expected forms of applied
anthropology were readily observed
in the shifting mechanisms of transi-
tional justice. However, what could
not be found were anthropologists
specifically acting as translators. This
is not to dismiss the reports of the truth
commission which outlined recom-
mendations and suggested government
action. Rather, the translators that exist
between the local and the national
were absent. These anthropologists
would, in theory, be translating “down”
information from the government-level
actors about the transitional justice
process, halting the often rapid prolif-
eration of misinformation, explaining
options, and in general facilitating the
flow and comprehensibility of informa-
tion. Similarly, anthropologists were
25
not found translating “up” information
from the ground level to the govern-
ment level. Information that would oth-
erwise be translated up would include
the expectations for, needs of, potential
risks for, and understandings that sur-
vivors held regarding the transitional
justice process. It is here in the middle
ground that there was absence of, but
potential for, true participatory action
approaches and applied anthropology
in a form described by Merry.
For example, when discussing the
independent assessment process with
lawyers and survivors, there was a
clear need that could be filled by the
anthropologist working in that middle
space. Reportedly, there was a training
session for lawyers who represented
the government and for judges presid-
ing over the individual hearings; this
training focused on providing histori-
cal context and discussing the breadth
of power that a judge had. In efforts to
accommodate survivors, proceedings
were held in a variety of locations in
an effort to make plaintiffs more com-
fortable, and plaintiffs were allowed to
bring people with them to the hearing.
However, there was little concern with
uniformity in proceedings or outcomes.
As both lawyers and survivors recount-
ed, the outcomes of similar cases that
had comparable evidence and crimes
could vary at the extremes. Indigenous
community members were aware of
this, and it generated further lack of
confidence in and mistrust of the gov-
ernment as well as a feeling of contin-
ued injustice. As mentioned before, the
widely recognized goals of transitional
justice include accountability, justice,
and reconciliation. When inconsisten-
cies like these existed, the legal system
failed to meet these goals.
Amongst lawyers, some held a strict
interpretation of the law and followed
precisely with conservative interpre-
tation, while others did not. When
interacting with survivors who brought
their cases to court, some attorneys
struggled to stay within the bounds of
the law while still maintaining a spirit
of reconciliation. In an interview, one
lawyer relayed that in an independent
assessment hearing, the court did
26
not find in favor of the survivor. The
lawyer lamented over the fact that
the survivor reiterated that he simply
wanted an apology from the govern-
ment and recognition of the crimes
he suffered. The lawyer, as a repre-
sentative of the government, could
not apologize on behalf of Canada,
as the hearing did not find in favor of
the residential school survivor. Yet, in
the spirit of reconciliation, the law-
yer mailed a copy of Prime Minister
“Had anthropologists been utilized at the start of the
transitional justice process, then a participatory ap-
proach could have been used in conjunction with as-
sessments of risk and need, potentially identifying and
preventing negative outcomes.
Stephen Harper’s national apology to
the survivor. This apology was per-
formed by the prime minister in 2008
and well-known, if not well-received,
amongst the Indigenous community.
While this course of action is poten-
tially problematic on several fronts, it
also demonstrates further inconsistency
among the legal representatives, as this
was an individual choice on the part of
the lawyer.
Other problems generated by the
independent assessment process that
were reported include traumatization
from reliving the abuses when prepar-
ing the documentation and testimony
and increased suicide rates amongst
survivors who participated in the inde-
pendent assessment process. For many,
the circumstances of their abuse and/or
rape was never discussed with family,
including immediate relatives such as
spouses or children. Nor for many have
the traumatic events been processed
through mental health services. One
should not dismiss the fact that a
number of individuals have processed
and come to terms with the events in
their life, but for those who had not,
PRACTICING ANTHROPOLOGY
they now needed to relay their experi-
ence to a lawyer, the court, and most
likely their families. Subsequently, the
monetary awards often lacked substan-
tial impact, as funds—when awarded—
were quickly exhausted via distribu-
tion through generations of family
members, and increased instances of
drug overdose occurred as those with
substance abuse problems fueled their
additions to deadly levels with settle-
ment award money.
”
Further concerns of Indigenous
community members included the fact
that physical and sexual abuse were
restricted by legal definitions. For
example, one survivor shared that as a
child in the Indian residential school,
she had teeth pulled out as a form of
punishment. To her extreme dismay,
this alone did not constitute physical
abuse; rather, it was viewed as practic-
ing medicine without a license, and
her claim did not qualify for monetary
reparations. Access to the independent
assessment process was made further
challenging by lack of English profi-
ciency, ranking of the types of abuse
on paperwork, ability to find or access
legal advising, and loss of monies due
to lawyers illegally and excessively
billing. In this portion of the research
study, inconsistencies amongst and be-
tween lawyers and judges was evident
and readily reported by informants,
illuminating “unanticipated” negative
outcomes of the independent assess-
ment process. Clear gaps in com-
munication and expectations existed
between those driving the process and
those experiencing transitional justice
Vol. 39, No. 1, Winter 2017
at the local level, revealing an oppor-
tunity for anthropological engagement
that had been missed.
The Middle Space
Had anthropologists been utilized
at the start of the transitional justice
process, then a participatory approach
could have been used in conjunction
with assessments of risk and need,
potentially identifying and preventing
negative outcomes. Participatory action
oriented research is designed to place
the power of the research in the hands
of the participants and, in this instance,
those most impacted by transitional
justice measures (Cornwall and Jewkes
1995). Needs and risk assessments of
Indigenous communities would also in-
form potential impacts of the selected
or desired transitional justice measures.
For instance, a needs assessment could
have easily led to the recommenda-
tion of pairing financial planners with
awardees. The findings of the case
of Canada are reflective of an issue
raised concerning the excavation of
mass graves, another traditional tool of
transitional justice. Practitioners and
scholars have questioned the legal im-
perative of grave excavation and body
repatriation as it stands juxtaposed
with humanitarian needs of surviv-
ing communities (Doretti and Burrell
2007; Stover and Shigekane 2002).
Similarly, Aronson’s (2011) research
concerning the South African transi-
tional justice process and its outcomes
evaluates the ability of the needs and
desires of relatives of the missing to be
met. In Theidon’s (2013) work in Peru,
she describes how the transitional
justice process often essentialized the
female experience of conflict into that
of a sexual assault victim, failing to
acknowledge the other experiences
and resulting long-lasting effects of the
violence. While surely no implementa-
tion will be perfect or able to meet all
stakeholder needs, research continues
to demonstrate disconnect between
survivor needs and transitional justice
imperatives. Scholarly debates are in
many ways refocusing, shifting away
from universalism-particularism or
Vol. 39, No. 1, Winter 2017 PRACTICING ANTHROPOLOGY 27

global-local dichotomies; yet, the
middle space between global and local,
between government and ground level,
still requires much attention, as tran-
sitional justice continues to prolifer-
ate across geographical, political, and
cultural frameworks.
Without understanding the middle
space and bridging both the literal and
figurative gap between the “top” and
the “bottom,” unmet needs and negative
impacts, such as those seen in the inde-
pendent assessment process, abound.
Negative outcomes then become part
participatory action approach could be
utilized to identify community needs
and potential risk created by proposed
action. Moreover, participatory action
models require revisiting the communi-
ty and research questions, allowing for
continual modification and response
to both anticipated and unanticipated
outcomes.
Anthropological methods and
analyses are well-suited to identify
community needs, potential problems,
the formal transitional justice process.
Rarely were there individuals who
supported it fully, and quite common-
ly, informants openly disagreed with
its use.
With an obvious disconnect from
Indigenous needs and lack of regard
for potential negative impacts, first
and foremost, the Indian Residential
Schools and their redress are viewed
by many Indigenous people at the
ground level as part of a colonial

“Anthropological methods and analyses are well-suited

of what Scheper-Hughes and Bourgois
(2004) describe as a continuum of vio-
lence which encompasses violence in all
its forms, including the almost invisible
microaggressions and everyday vio-
lence, overt physical violence, socially
embedded structural violence, and mass
violence such as genocide or ethnic
cleansing. Violence moves through
this continuum as structural, state, and
settler-colonial violence reproduce
themselves and result in situations that
foster further forms of violence, causing
continued harm and undue suffering for
Indigenous peoples. Thus, it is in this
middle space that community-engaged
anthropological practice could sig-
nificantly contribute to the transitional
justice process and attempt to stymie
the recreation of violence.
In Canada, the transitional jus-
tice process is often discussed as
an Indigenous-driven endeavor as
it resulted from court negotiations,
culminated in a settlement agreement,
and was influenced by a roundtable
of Indigenous leaders in the decision
making process. However, this alone
is not sufficient. Aside from significant
discrepancies between what Indigenous
leaders requested and the end result
of the settlement agreement, leader-
ship also does not necessarily reflect
the voice or needs of individuals. The
question of whose voices count and to
what degree is a continued critique of
transitional justice models, including
those that often tout a victim-centered
approach (Lundy and McGovern 2008;
Robins 2011). Preceding transitional
justice implementation, and arguably
during transitional justice planning, a
to identify community needs, potential problems, and
translate transitional justice from both the top-down and
bottom-up. …Without covering all the aspects of tran-
sitional justice nor every type of practitioners encoun-
tered, overall, it could be seen that anthropologists as
translators could and should be inserted before the start
of transitional justice implementation. ”
and translate transitional justice from agenda and continued violence.
both the top-down and bottom-up. In Examples of continued human rights
the example illustrated here, the op- violations include the disproportion-
portunity to utilize anthropologists in ately high removal of Indigenous
the independent assessment hearings children from their homes and placed
had been missed. Without covering all into state care or the dispropor-
the aspects of transitional justice nor tionately high rates of poverty and
every type of practitioners encoun- unemployment and lack of access to
tered, overall, it could be seen that housing and water faced by Indig-
anthropologists as translators could enous women (Coulthard 2014).
and should be inserted before the start These are structural issues within
of transitional justice implementation. Canadian culture that the transitional
Were governments to use a partici- justice model is unprepared to ad-
patory action approach, then needs, dress. Thus, from this perspective,
expectations, and understandings of the government cannot be sincere in
the community could be instituted any attempt at redress for the resi-
in each mechanism of transitional dential schools or else ongoing rights
justice from the start. Limitations of violations would cease. Further,
the government and the bounds of the negative impacts of transitional
transitional justice could be translated justice mechanisms reveal disregard
into the local dialogues as well. The on the part of the government, as
need for this was evidenced as most these impacts propagate harm against
informants voiced displeasure with Indigenous peoples.
28
Conclusion
Transitional justice was viewed by
many as a settler, or Western, institu-
tion that replicated a business model,
rather than an Indigenous approach.
It represented yet another form of
colonization and domination. Infor-
mants relayed that, as it was structured,
the transitional justice tools failed to
address Indigenous needs and instead
served the government, or settler class,
through providing what social scien-
tists would describe as symbolic and
political capital. For many, the transi-
tional justice process failed in one or
more of the following ways: to pro-
mote Indigenous values and lifeways,
to address structural and physical
violence experienced by Indigenous
peoples, to engage the settler society,
or to instigate social change. Where the
state attributes redress and reconcilia-
tion to the transitional justice model, it
is viewed by many Indigenous peoples
as yet another settler colonial mecha-
nism of the state.
If indeed transitional justice can
be separated from structural violence
or settler colonial agendas, then there
must be needs and risk assessments
as well as continued engagement
with the survivors—in this case, the
Indigenous peoples of Canada. The
task of translation presented here
extends beyond Merry’s discussion
of vernacularizing human rights to
examine the cultural and communica-
tive gap between governments and
the local level. While transitional
justice in Canada has provided posi-
tive outcomes, especially concerning
the arduous task of documentation
and individual healing, at the ground
level many do not find justice, ac-
countability, or reconciliation. With
the middle space unbridged, transi-
tional justice becomes assimilated
into Scheper-Hughes’ and Bourgois’
(2004) continuum of violence; it pro-
duces—rather than alleviates—harm.
Transitional justice, often lauded as a
tool for peacebuilding, individual and
social reconciliation, and an instru-
ment for redress after mass violence,
risks not only failing to meet its goals
PRACTICING ANTHROPOLOGY
but can become a tool for violence to
continue in its shifting forms. As is
seen in the case of the independent
assessment process, both new and
old forms of violence proliferated
throughout the Indigenous communi-
ty. Without engagement with surviv-
ing communities, transitional justice
recreates architectures of power and
reinforces the patterns of structural
and state violence. Thus, based on
findings discussed here, it is recom-
mended that anthropology actively
utilize participatory action models,
needs evaluation, and risk assessment
to engage the middle space of transi-
tional justice.
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Jaymelee J. Kim (kim@findlay.
edu) is an assistant professor in the
Department of Social, Behavioral,
and Justice Sciences at the Univer-
sity of Findlay. She is a political and
legal anthropologist trained in both
biological (forensic) and cultural
anthropology. Her work traverses
anthropological subdisciplines and
geographical regions to analyze
human rights, structural violence,
settler colonialism, forensic inter-
vention, and social justice issues in
“post-conflict” and “post-colonial”
contexts. Contested communication,
expectations, and perceptions of
various stakeholders in these con-
texts inform her research. n