Download Genealogy of transitional justice

Clotilde Riotor, EHESS, Teaching Assistant, Washington
University in St. Louis, « Law and Culture » (Prof. Kedron
Thomas), 2012-2013
TRANSITONAL JUSTICE
&
POLITICS OF RECONCILIATION
Transitional Justice
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The range of approaches that States may use to
address past human rights violations includes both
judicial and non-judicial approaches after :
International War
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Civil war
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Authoritarian regime
Genealogy of transitional justice (Ruti Teitel
2003)
3 phases identified by Teitel, which are loosely organized
chronologically (their respective legacies overlap)
Phase I (1945-1950):
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Transitional justice becomes understood as both
extraordinary and international
Symbol: The Nuremberg Trials
The Nuremberg Trials
Failure of past initiatives
Treaty of Versailles (1919) :
« Germany accepts the responsibility of Germany and
her Allies for causing all the loss and damage to
which the Allied »
=> After WWI, Collective sanctions levied against
Germany as a nation came to be perceived as a
basis for the frustration that fueled Germany’s role
in World War II
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National prosecutions did not deter future carnage.
National justice (within he framework of the Treaty
of Versailles) was displaced by international justice,
eschewing national prosecutions
Instead, seeking individual criminal
accountability for the Reich’s leadership
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Series of military trials in 1945 - 1946
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Held by the Allied forces
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Prosecution of prominent members of the political,
military, and economic leadership of the Nazi
Germany
12 of the accused were sentenced to death, 7
received prison sentences, 3 were acquitted
24 accused, including :
Hermann Göring,
Commander of the
Luftwaffe 1935 - 1945
Rudolph Hess, Deputy
head of the Nazi Party, in
1941 fled to Great Britain
to try to negotiate peace
and was captured by the
Allied
Indictments
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Participation in a common plan or conspiracy for
the accomplishment of a crime against peace
Planning, initiating and waging wars of aggression
and other crimes against peace
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War crimes
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Crimes against humanity
Legacy of phase I
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Judicial categories to qualify mass violence
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Basis of modern human rights law
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Raphael Lemkin coined the term "genocide" in
1943. Lemkin's idea of genocide became one of the
legal basis of the Nuremberg trials.
Legacy of phase I
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Article 6 of the London Charter (August 1945)
Crimes Against Humanity :
" Murder, extermination, enslavement, deportation,
and other inhumane acts committed against any
civilian population, before or during the war, or
persecutions on political, racial or religious
grounds in execution of or in connection with any
crime within the jurisdiction of the Tribunal, whether
or not in violation of the domestic law of the country
where perpetrated"
Legacy of phase I
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1948, promulgation of the :
- Convention on the Prevention and Punishment of
the Crime of Genocide
- Universal Declaration of Human Rights
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Institutional devices to criminalize State
wrongdoings as part of a universal rights scheme :
- International Tribunals
- International Criminal Court
Legacy of phase I
The Cold War put an end to the internationalism of this
postwar phase of transitional justice
From the 1990s, the creation of International Justice
Courts drew directly on this legacy
International Tribunals
International Criminal Tribunal for the
former Yugoslavia
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Established in 1993 by Resolution 827 of the
United Nations Security Council
Located in The Hague, the Netherlands
Jurisdiction over four clusters of crimes committed
on the territory of the former Yugoslavia since 1991:
grave breaches of the Geneva Conventions,
violations of the laws or customs of war, genocide,
and crimes against humanity
International Tribunals : International
Criminal Tribunal for Rwanda
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Located in Arusha, Tanzania
Established in November 1994 by the United Nations
Security Council, Resolution 955
To judge individuals responsible for the Rwandan
Genocide and other serious violations of international
law in Rwanda, or by Rwandan citizens in nearby
states, btwn 1 January and 31 December 1994
Has finished 50 trials and convicted 29 accused .
Another 11 trials are in progress
Famous case: "hate media trial" : 3 leaders of "Radio
Mille Collines" found guilty of genocide and incitement
to genocide in 2003
The International Criminal Court
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A permanent international criminal court.
The Rome Statute of the International Criminal
Court came into force in 2002
Prosecute only crimes committed on or after 2002
Official seat : The Hague, Netherlands
Juridiction
- The accused is a national of a State party
- The alleged crime took place on the territory of a
State party
- The Prosecutor can initiate investigations proprio
motu on the basis of information on crimes within
the jurisdiction of the Court received from
individuals or organisations. (Kenya 2010, Ivory
Coast 2011)
- A situation is referred to the Court by the United
Nations Security Council.
Examples of Security Council resolutions : Darfour
2005, Lybia 2011.
Example : Katanga and Ngudjolo Chui case
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The accused were participants in the Ituri conflict, DRC,
which is a State Party to the Rome Statute
In 2007, Pre-Trial of the ICC
The accused were surrendered to the Court by the
Congolese authorities
Criticisms
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Exacerbate tensions rather than promote
reconciliation ?
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Very high cost
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Length of the trials
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May provide a forum for the accused to become a
focus of sympathy and admiration (TPIY : Milosevic
was acting as his own defense attorney in court)
Phase II (from the 1980s)
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Period of accelerated democratization and political
fragmentation : “third wave” of transitions (Samuel
Huntington, 1991)
Collapse and disintegration of the Soviet Union
End of military juntas in South America, nascent
democracies
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Legitimizing nascent democracy and adherence to
the rule of law
What kind of justice policy during a political
transition ?
National trials
Truth Commissions
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An official body, often created by a national
government, to investigate upon human rights abuses
within a country over a special period of time.
Argentina established the first transitional commission
of inquiry : the « Nunca Mas » commission. Not aimed
at reconciliation.
Construct an alternative history of past abuses
Popular where the former regime cause disappeared
persons (« desaparecidos ») or repressed information
about its persecution policy
Truth Commissions
Ouganda 1974
Rwanda 1993
Bolivia 1982-1984
Germany 1994
Argentina 1985
Ethiopia 1994
Uruguay 1985
Haïti 1996
Zimbabwe 1985
Burundi 1996
Philippines 1987
Sri Lanka 1997
Ouganda 1995
Equateur 1997 (unfinished)
Nepal 1991
Guatemala 1999
Chad 1991
Nigeria 2000
South Africa 1992 &1993
Panama 2001
Salvador 1993
Ghana 2005
Serbia and Montenegro 2005
Desmond Tutu, anglican bishop:
"Without forgiveness there can be no future for a
relationship between individuals or within and
between nations." (2000)
"There are different kinds of justice. Retributive justice
is largely Western. The African understanding is far
more restorative - not so much to punish as to
redress or restore a balance that has been knocked
askew." (Recovering from Apartheid, The New
Yorker, 18 November 1996) (This is actually a very
political definition of « African » justice.
« Retributive » versus « restorative » justice
(Albert Eglash, 1977)
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Emphasis on the
criminal / perpetrator
Crime is a violation of
the law
Focus on the victim
Crime is an act against
another person and the
community
Punishment of the
guilty ones is the best
answer to crime.
Reparation
Intentionality
Emphasis on dialogue
and negotiation
Healing
Criticisms
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Ambiguity of « truth »
Highly depending on the positions / power held by
the people responsible for HR violations => partly
the product of political compromises
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Truth versus justice bargaining
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Controversies around the issue of amnesty
Phase III : normalization of transitional
justice
End of the 20th century
This phase combines elements of phase I & II and
also new ones
Globalization
Heightened political instability and violence
International conflicts => intra-state conflicts
Rise of humanitarian law
But also :
Emphasis on 'bottom-up" and local approaches.
Fragmentation of transitional justice initiatives
And importance of the local context - « hard » cases
of legal pluralism (typically custumary + national
law)
These devices are more and more be established in
the midst of violence (ex : reconciliation
ceremonies in Central African Republic, during the
civil war 2013-2014) (personal hypothesis)
Transitional Justice


The range of approaches that States may use to
address past human rights violations includes both
judicial and non-judicial approaches after :
International War

Civil war

Authoritarian regime
Example : Extraordinary chambers in
Cambodia (Khmer Rouges Tribunal)
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Agreement between the Royal Government of
Cambodia and the United Nations in 2003.
Try serious violations of Cambodian penal law,
international humanitarian law and custom
recognized by Cambodia, committed between
1975 and 1979
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Hybrid Court
(International criminal law + Cambodian Penal Code)
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Rehabilitative victim support
Media outreach for the purpose of national
education
Truth and Reconciliation Commissions
“ Reconciliation is not a new idea, but implementing a
Truth and Reconciliation Commission is a brand new
thing”
Aniceto Guterres, CAVR chairman (East Timor), 2005.
List (year of establishment)
Chile 1991
South Africa 1995
Peru 2001
Sierra Leone 2002
Morocco 2004
East Timor 2001
Togo 2009
Brasil 2011
Colombia 2011
Criticisms
Risk of « culturalization » & folklorization of peace
initiatives => depoliticized understanding of past
violence
Gacaca in Rwanda : numerous cases of retaliation
East Timor : No infrastructure to disseminate publics
hearings
One example of failed initiative I have been
studying : TRC project in Indonesia (cancelled in
2006 ) : NGOs filed a suit against the perceived
« bargaining » reparations/ amnesty / truth.
Problem : Reconciliation = a justice
bypass ?
Not that simple :
- Hybrid systems : complementarity with retributive
justice (South Africa, East Timor, Rwanda)
- Limits of liberal and « top-down » peace-building
approaches (Chandler 2013)