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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 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 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): 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 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 Series of military trials in 1945 - 1946 Held by the Allied forces 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 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 War crimes Crimes against humanity Legacy of phase I Judicial categories to qualify mass violence Basis of modern human rights law 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 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 1948, promulgation of the : - Convention on the Prevention and Punishment of the Crime of Genocide - Universal Declaration of Human Rights 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 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 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 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 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 Exacerbate tensions rather than promote reconciliation ? Very high cost Length of the trials 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) 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 Legitimizing nascent democracy and adherence to the rule of law What kind of justice policy during a political transition ? National trials Truth Commissions 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) 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 Ambiguity of « truth » Highly depending on the positions / power held by the people responsible for HR violations => partly the product of political compromises Truth versus justice bargaining 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) 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 Hybrid Court (International criminal law + Cambodian Penal Code) 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)