Transitional Justice

Church of Sweden Apologizes to Sami for Involvement in Colonial Oppression & Past Abuses

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By Ebba Lekvall, Essex Law School

“Today, we acknowledge [these past abuses], and, on behalf of the Church of Sweden, I apologise.”

Those were the words of the Archbishop of the Church of Sweden, Antje Jackelén, as she led the reconciliation service in Luelå Cathedral this past Sunday (23 October), and officially apologised to Sweden’s indigenous population for the Church’s involvement in past colonial oppression and abuses. This is part of the Church’s reconciliation process and efforts in dealing with a dark past that has included forced Christianisation, destruction and desecration of Sami religious places and objects, active participation in grave looting in search of Sami remains, deprivation and suppression of Sami identity and culture.

The Sami are the only indigenous people of Europe and their traditional land – Sápmi – stretches across half of modern-day Norway and Sweden, as well as part of Finland and Russia. It is estimated that there are around 100,000 Sami in Sápmi, with 20,000-40,000 in Sweden.

Source: https://samer.se/karta

The Sami are believed to have lived on this land for thousands of years. In Sweden, colonisation of Sápmi began in the early 14th century but really took off in the 17th century when silver was discovered. This led to Sami populations being driven further to the north and west, which led to centuries of conflict between the Sami and colonisers as the Sami saw their rights, including to land and water, being curtailed. These rights are still being violated today in breach of international human rights law and Sweden has been criticised by the UN Special Rapporteur on the rights of Indigenous Peoples for its treatment of the Sami, including for the lack of protection for their right to their lands and resources.

The Church of Sweden was instrumental in the oppression of the Sami, who were forced to convert to Christianity (through methods like fines, imprisonment and even the death penalty) and to attend church, where their language and traditional joik singing was banned. As part of the Christianisation of the Sami, the Church also defaced Sami religious sites and destroyed drums used in traditional ceremonies. This contributed to the loss of traditional Sami religion and culture.

In addition, the Church was the main force in organising so-called “nomad schools” for Sami children, which were run between 1913 and 1962. Like the residential schools for indigenous children in Canada, these were boarding schools and based on racist ideology. However, unlike the Canadian schools, the purpose was not necessarily to assimilate Sami children into Swedish citizens. Rather, the schools in Sweden were created based on the understanding that reindeer-herding Sami should live according to what the Church considered to be as close to their nature as possible, whereas non-nomadic Sami should be assimilated into white Swedish society. Therefore, the children of reindeer herders were sent to the nomad schools, where they were provided sub-standard education, where Swedish was the language of instruction and where their own language was banned. Consequently, generations of Sami lost their language.

The Church was also involved in other racist policies. In 1922, the State founded the Institute for Eugenics. Its director, Herman Lundborg, believed in racial purity and argued that ideas about the equal worth of peoples was an illusion (he became an inspiration for German eugenics researchers whose work laid the foundation for many Nazi policies). Lundborg conducted his “research” on the Sami people which led to trauma, lasting generations. He travelled to Sápmi and measured skulls and faces of the Sami, and also collected information about eye and hair colour. He photographed each person, sometimes naked, and a catalogue of pictures with public access is still kept at the library at Uppsala University. Church representatives had a close relationship with Lundborg and they acted as points of contact between Lundborg and the schools and villages he visited.

While the State has remained largely silent and has yet to apologise, the Church has taken the lead in redressing past abuses against the Sami and has begun a reconciliation process which has included mapping its involvement in abuses and holding Ságastamallat (conversation or dialogue in Sami) – where testimonies have been collected about the experiences of the Sami and consequences of the Church’s abuses. The first one took place in October 2011 and the second took place 21-22 October. Two more Ságastamallat are planned – one in 2026 and one in 2031. The Church will then have spent 20 years working on the process of reconciliation.

The current (and retiring) Archbishop has, for many years, made repeated public comments about the Church’s past abuses against the Sami, and called for Sweden to deal with its colonial past. Under her leadership, the Church published a White Paper – “The Sami and the Church of Sweden” – where the Church “examines its guilt and responsibility towards the Sami in [Sweden’s] colonial past.” The White Paper documents past abuses and violations committed. The Church has also published a book about the nomad schools – “When I was eight, I left my home and I have still not returned” – which contains ten testimonies from persons who attended these schools. In the preface, the Archbishop wrote: “The Church took part in the colonisation of Sápmi and actively contributed to exercising power and control over the Sami. We delivered theological thought models that could justify the colonial system. Church representatives also had a driving role in the creation of the nomadic schools at the beginning of the 20th century.”

Last November, the Church made an official apology in Uppsala Cathedral, the seat of the Archbishop. This apology was repeated this Sunday in Luleå – which was symboliccally important as Luleå is located in Sápmi. Both apologies were made in Church services that were live streamed and still available online. The services were conducted in both Swedish and Sami. Importantly, the traditional joik was also included, as were several testimonies, including about experiences in the nomad schools and a poem about the racial policies of the Church. Others spoke about the loss of identity across generations, and how the loss of language and land (including land still owned by the Church) has contributed to the loss of culture.

The Archbishop’s apology acknowledged that the Church “has contributed to and legitimised oppression” and that the apology was only one step “forward on the long road of reconciliation.” As part of this road to reconciliation, and linked to the apology, the Church also made eight commitments, including to increase knowledge and awareness of the Church’s historical abuse against the Sami and the consequences of this and to expand knowledge of and respect for the principles of indigenous rights within the Church of Sweden and in society, as well as to preach the Gospel in the Sami languages and in the Sami cultural context, with respect for the Sami spiritual and ecclesiastical tradition.

After centuries of oppression at the hands of the Church, this public apology is an important step in the work done by the Church as part of the ongoing process of reconciliation. However, the Archbishop also acknowledged that “we cannot determine how you will receive this apology. It is not our place to demand to know when a response will be given and what that response will be.” Representatives of the Sami Parliament in Sweden have said that in order for the Sami people to accept the apology, practical action from the Church is needed. It remains to be seen whether the Church is able to deliver on its eight commitments and how the apology will be received by Sami communities.

In further developments, and perhaps spurred on by the Church’s work, the government agreed with the Sami Parliament last year to create a truth commission to “identify and review from a historical perspective the policies the Sami were subjected to and the subsequent consequences for the Sami people.” Commissioners were appointed in June 2022 and are expected to deliver their report in 2025. Little information is currently available about the commission, including details about its mandate, but it does not seem to include a mandate to recommend reparations.

Given the State’s history of dragging its feet when it comes to acknowledging responsibility for its abuses against the Sami, both past and present, and the fact that it refuses to ratify the ILO 169 Convention on indigenous rights, this is perhaps unsurprising. But it would be a missed opportunity nonetheless. At the very least, any reparations provided to the Sami should include acknowledgement of responsibility and an apology. With the Church leading the way, one can only hope the State follows suit.

Reparations Before The International Criminal Court: Who Are The Victims of Cultural Heritage Destructions and How Should Their Harm Be Addressed?

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Source: Wikimedia Commons

Ahmad al-Faqi al-Mahdi (Mr. Al Mahdi) was brought to the International Criminal Court to stand trial for his involvement in the destruction of several historical and religious sites in Timbuktu (Mali) during an armed conflict in 2012. This was the first time in the history of international criminal justice that an individual was prosecuted for the destruction of cultural heritage alone.

Following his guilty plea and conviction in 2016, the case moved on to the reparations phase where the focus was that of redressing the harm caused to victims. Therein, the unprecedented nature of the Al Mahdi case led to an equally unprecedented question: who are the victims of cultural heritage destruction?

Drawing upon her personal involvement in the case as a Court-appointed expert, Dr. Marina Lostal, Senior Lecturer at the University of Essex, has published an article explaining how this question was resolved and the practical challenges it posed during the implementation phase.

The challenges encountered are labeled as ‘monumental’ because they had one thing in common: the amount of theoretical thinking and reflection that they deserved was inversely proportionate to the urgency with which they had to be addressed and the precedent they would establish. To surmount this, drawing from the author’s background, the Trust Fund for Victims turned to academia and consulted with scholars.

The article focuses on three of such challenges:

(i) whether ‘unborn children’ should be included in the pool of victims given that cultural heritage is meant to be preserved for the benefit of future generations;

(ii) what place women ought to occupy in the implementation of reparations, despite the customary practices of side-lining them; and

(iii) the decision of whether to memorialize events surrounding the crime.

On the latter point, the article introduces the concept of ‘restorative agency’, a working principle that was adopted in the context of memorialization measures to ensure that victims are given a platform to decide, not a decision.

Lastly, Dr. Lostal’s article provides a framework to demonstrate the level of complexity involved in the implementation of any Court-ordered reparations and reveals some of the work of the Trust Fund for Victims, one of the Court’s least comprehended creations.

Article full citation: Marina Lostal, Implementing Reparations in the Al Mahdi Case: A Story of Monumental Challenges in Timbuktu, Journal of International Criminal Justice, Volume 19, Issue 4, September 2021, pp. 831–853, https://doi.org/10.1093/jicj/mqab064

Whose Perception of Justice? Real and Perceived Challenges to Military Investigations in Armed Conflict

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States must investigate possible violations of international humanitarian law in armed conflict, and many of them use military procedures for all or part of the investigation process.

Particular tensions can arise with regard to the perception of justice in the context of military judicial procedures, especially surrounding questions of independence and impartiality.

In her new article, Claire Simmons, Senior Research Officer at the University of Essex School of Law and Human Rights Centre lays out the international legal framework which should be used to solve these challenges.

The article argues that a State must address both the specificities of military institutions and the need for a perception of justice by the affected communities in considering the proper administration of justice in armed conflict.

Here is a 30-second video summary of Claire’s article:

The article is published in a special edition of the International Review of the Red Cross on Emerging Voices of International Humanitarian Law, Policy and Action, and can be accessed here for free.

The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law

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Photo by Sergio Torres

Dr. Eliana Cusato, who is currently appointed as a Marie Skłodowska-Curie postdoctoral fellow at the Amsterdam Center for International Law, authored a new book titled The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law. Her book was published by Cambridge University Press in September 2021.

The interrelation of ecology and conflict has been the object of extensive study by political scientists and economists. From the contribution of natural resource ‘scarcity’ to violent unrest and possibly armed conflict; to resource ‘abundance’ as an incentive for initiating and prolonging armed struggles; to dysfunctional resource management and environmental degradation as an obstacle to peacebuilding, this literature has exerted a huge influence upon academic discussions and legal/policy developments.

While international law is often invoked as the solution to the socio-environmental challenges faced by conflict-affected countries, its relationship with the ecology of war and peace remains undertheorized. Drawing upon environmental justice perspectives and other theoretical traditions, the book unpacks and problematizes some of the assumptions that underlie the legal field.

Through an analysis of the practice of international courts, the United Nations Security Council, and truth commissions, the book shows how international law silences and even normalizes forms of structural and slow environmental violence (notably, uneven access and distribution of natural resources; less visible forms of violence associated with the environmental aftermath of wars).

This, in turn, jeopardizes the prospects of creating more peaceful societies, while perpetuating deeply rooted inequalities. Ultimately, the book urges us to imagine entirely different legal notions of justice, peace, and security in times of ecological disruption.

By drawing upon extra-legal fields of inquiry (e.g., the literature on environmental security, the political economy of civil wars, the resource curse, and environmental peacebuilding), the book strives to refine extant understandings of how international law conceptualizes and regulates the ‘environment’ before, during, and after armed conflict.

By engaging with some of the international legal order’s most pressing concerns – rising intra-state violence, environmental degradation, resource depletion, and their interaction – the book opens intellectual spaces for rethinking current approaches to the ecological challenges of our hyperconnected world and their adverse impact on the most marginalized peoples. As such, it offers a critical companion work to related titles and, at the same time, pushes the research envelope further and in new directions.

E Cusato, The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law (CUP 2021)

The book will be of interest to academics and students across different disciplines, primarily international law, but also peace and conflict studies, political theory, and international relations. It will also prove useful as a reference for policymakers and practitioners working at the intersection of environmental issues, human rights, and peace and security within international organisations/tribunals, governmental departments, think thanks, and NGOs.

Dr. Eliana Cusato is currently on academic leave from the Essex Law School.

Towards Consolidating Synergies Between Business and Human Rights and Transitional Justice

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Photo by Dan Schiumarini

By Hobeth Martínez Carrillo, Sabine Michalowski and Michael Cruz Rodríguez

Last October, the UN Working Group on Business and Human Rights launched its report ‘Business, human rights and conflict-affected regions: towards heightened action’. From a transitional justice perspective, the report is hugely important, not only for addressing the lack of attention paid to how businesses contribute to or are linked to human rights violations in conflict settings, but also for dedicating a whole section to reparation and transitional justice. Stressing the importance of engaging with transitional justice as part of business and human rights and considering synergies between the two fields is essential to improve the accountability of businesses and other economic actors for their role in conflict-related human rights violations, provide victims with reparation and prevent recurrence of these violations. Although the report makes a significant step in the right direction, a lot remains to be done to fully integrate lessons from transitional justice into business and human rights frameworks.

Transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. Unlike the field of business and human rights that focuses much of its attention on corporate actors, in transitional justice processes, victims occupy centre stage. This is so because transitional justice deals with the aftermath of massive violations of human rights where a substantial number of people suffered abuses. It addresses victims’ quest for justice, finding out the truth of what happened and why, and redresses the harm they suffered. Giving attention to victims is a moral duty to dignify them as part of a democratic society, a prerequisite to the kind of social reconciliation needed in societies torn apart by violence and, more substantially, a right and a correlative state obligation. As a consequence, victims must be at the forefront of any intervention in post-conflict societies, whether they aim to provide redress for so-called blood crimes or address more structural violations to transform the social contexts that were conducive to conflict.

In transitional justice contexts, businesses and States’ heightened due diligence to prevent human rights violations makes sense precisely because it would help to avoid the victimisation of civilian communities and contribute to achieving guarantees of non-recurrence, transitional justice’s forward-looking pillar. But where violations have already taken place, as is always the case in transitional justice contexts, a consequence of heightened due diligence must be to engage with transitional justice processes, guided by victims’ demands.

Additionally, current transitional justice theory and practice is moving towards a holistic model of transitional justice that is built on the four pillars of truth, justice/accountability, reparation and guarantees of non-recurrence, which operate side-by-side and complement one another to address as best as possible, central demands of victims and societies trying to overcome civil wars. We are pleased that the UN Working Group’s report adopted our suggestion to embrace the holistic approach to transitional justice  as part of the application of the UN Guiding Principles on Business and Human Rights by embedding the four pillars of transitional justice, all of which contribute to the reparation of victims, into the Guiding Principles’ remedy pillar. Nevertheless, we believe that there is still more room for businesses to meaningfully engage with transitional justice processes.

Ideally, all actors in societies should contribute to transitional justice mechanisms. However, the expectation is even greater for powerful economic actors who could have benefited from past contexts of violence and that can also find more business opportunities or get access to natural resources as a result of pacification. It is also important to bear in mind that post-conflict reconstruction and transitional justice processes often exist side-by-side and that businesses cannot forego their responsibility to engage with transitional justice processes through contributing to post-conflict reconstruction, but rather have an important role to play in both. While post conflict reconstruction is a complex process aiming at rebuilding a country’s social, economic and political institutions, transitional justice primarily addresses injustices committed during the conflict period and victims’ demands in that respect.

Finally, transitional justice practice has taught us that neither conflicts nor transitions can be easily confined within temporal limits. It is not only difficult to determine the precise moment when a conflict starts or finishes, but the end of a transition period is also often unclear. Armed confrontations might persist despite the formal end of a conflict by a ceasefire or a peace accord, and relapsing into conflict remains a common feature of countries that have endured a civil war. Successive waves of armed confrontations in the Colombian conflict might be a good example of such a ‘conflict trap’, as it has been coined, while legal cases open before Argentinian courts against the former military involved in crimes committed during the 1976-1983 dictatorship might also exemplify the long duration of transitional justice efforts.

What, exactly, this implies for business and human rights of course depends on the particular context, but a couple of insights are worth considering. On the one hand, businesses’heightened duty of due diligence persists despite the formal end of a conflict because confrontations, and therefore the risks of human rights abuses might continue. On the other hand, early engagement with transitional justice mechanisms might benefit businesses by preventing future social or legal demands for justice, truth or reparations that were unaddressed at early stages of the transition. The Apartheid Litigation in US courts is a good example here, as it shows that multinational businesses’ lack of-engagement with reparations as part of the South African transitional justice process led victims to seek other routes to achieve accountability and reparation.

Consolidating synergies between business and human rights and transitional justice, which until recently have been two separate fields of practice with little exchange, requires more conversations between practitioners working in both fields. Inspired by advances in business and human rights and the growing recognition of the role of business in human rights violations, transitional justice has been broadening its scope to include businesses in its remit, still facing many challenges in the process, as the Colombian example shows. At the same time, the willingness of business and human rights to engage with transitional justice is exemplified by the Working Group’s report. These are steps in the right direction but continued efforts to bring the two disciplines together are crucial in strengthening the efforts of both areas to improve business accountability.

About the authors:

Hobeth Martínez Carrillo is senior research officer at the University of Essex and Senior Atlantic Fellow for Social and Economic Equity (AFSEE), Sabine Michalowski is Professor of Law and Co-director of the Essex Transitional Justice Network (ETJN), University of Essex and Michael Cruz Rodríguez is senior research officer at the University of Essex. Michael holds a PhD in Law from the Universidad Nacional de Colombia.

This post was first published on the Business and Human Rights Journal Blog and is reproduced on our blog with permission and thanks. The original post can be accessed here.