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Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past

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... However, while the Rwandan government's approach to post-genocide justice and reconciliation has been widely lauded for its innovative use of community-based justice, questions remain about the true nature of reconciliation and the ethical implications of the restorative justice processes employed (Clark, 2010) (Huyse, L., 2008). While restorative justice generally emphasizes repairing harm, restoring relationships, and promoting collective healing, it is important to critically evaluate how these ideals translate into the Rwandan context. ...
... This section will explore how these relationships evolve over time, addressing the factors that influence trust-building, the complexity of forgiveness, and the long-term impact of trauma on both parties. Drawing on the work of scholars such as Des Forges (1999), Huyse (2008) and 5(2024) others, the next section will provide a framework for understanding the ongoing struggles of reconciling these deeply divided groups. ...
... In some cases, the idea of forgiveness was seen as a moral imperative, both for individuals and for the nation, but the emotional reality of this was far more complicated. Huyse (2008) discusses how the discourse of forgiveness was promoted by the Rwandan government as part of the broader reconciliation agenda but acknowledges that forgiveness is not a straightforward emotional or ethical act. While the state and international actors framed forgiveness as part of the healing process, in practice, many survivors felt that forgiveness would mean dismissing their pain and trauma, which they were not prepared to do. ...
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This paper explores the role of restorative justice in post-genocide reconciliation in Rwanda, focusing on its ethical implications and impact on community healing. Following the 1994 genocide against the Tutsi, Rwanda faced the challenge of addressing survivors' trauma, fostering national unity, and reconciling a divided society. Key initiatives, including the Gacaca court system, emphasized dialogue, accountability, and forgiveness to promote healing. Using restorative justice and social reconstruction theories as its conceptual frameworks, this study examines how restorative justice fosters trust, dignity, and relationship restoration, while addressing ethical challenges. Also, through a desk review of existing literature, reports, and case studies, this study synthesizes key findings on the effectiveness of restorative justice.
... The discourse on peace versus justice emphasises choices between retributive and restorative mechanisms of TJ (Sriram, 2009 Furthermore, Huyse (1995) argues that policy choices, concerning which TJ mechanisms to adopt, cover whether to remember or forget about past abuses and whether to impose sanctions on those responsible for committing atrocities. Moreover, truth commissions serve as a form of collective memory of the past, especially when they are followed by reparations. ...
... These challenges notwithstanding, Huyse (1995) argues that, in circumstances where it finds it hard to make payments to large numbers of beneficiaries of compensation, the state may opt for alternative forms. These would include but not be limited to subsidised medical and psychosocial treatment and reduced interest on loans for education and setting up businesses. ...
... These include memorials (monuments) in areas such as Mucwiny, Barlonyo and Lamwor, which suffered massacres (4MI030816A). It is important to recall Huyse's (1995) argument that monuments 'provide a channel for the expression of pain, frustration and anger'. The monuments therefore reflect the TJ interests of those victimised by the LRA. ...
Thesis
This thesis explores the extent to which existing national transitional justice policy frameworks structuring reintegration and integration interventions enable the effective or successful integration of children born in captivity (CBIC) in Uganda. These children were born to females subjected to ‘forced marriage’ to Lord’s Resistance Army soldiers while in captivity. Now living among the post-conflict communities of integration, the CBIC experience unresolved problems of stigma and discrimination. The thesis attributes part of the reason for this to a failure to distinguish between integration and reintegration as distinct processes in both academic analysis, policy and practice. Therefore, this thesis argues the need to distinguish between the processes, and contributes by developing a framework that can help the understanding of integration as experienced by Uganda’s CBIC. Secondly, the thesis responds to the scarcity of information on how reparation can address the plight of these children by suggesting a broad approach. This approach would enable both recognition and redistribution in response to the integration plight of CBIC living in Uganda. Therefore, this thesis has implications for academia, policy and practice. Empirical research was conducted among three post-conflict communities in Uganda using a combination of qualitative research methods in in-depth fieldwork that explored the integration of these children. The findings were analysed using qualitative content analysis and the outcomes presented in two sets of empirical chapters – one on integration and the other on reparations claims for these children. The empirical chapters from the three sub-regions consulted reflect the relevance of ensuring effective or successful integration for both CBIC and post-conflict communities of integration. The thesis concludes with the claim that, in fragile contexts where suitable transitional justice options for CBIC are not considered or adopted, existing policy and programme interventions encourage only a ‘shallow and unsustainable integration’. This requires a distinct conceptualisation and response to integration to enable the interventions to respond to the specificities of CBIC as beneficiaries of the process. By contrast, when reparations address the needs of CBIC, they foster recognition and redistribution, thereby leading to an improvement in integration towards a deep and sustainable state.
... Current scholarship on transitional justice (TJ) stops short of providing definitive answers to these questions although many scholars have investigated the conditions under which states pursue TJ. Much scholarship has focused on postauthoritarian societies, whereas relatively scant attention has been paid to TJ in postconflict societies (e.g., Grodsky 2010;Huntington 1993;Huyse 1995;Kim 2012;Nalepa 2010). This is puzzling, given that as illustrated in Figure 1, new postconflict cases significantly outnumbered new postauthoritarian cases in the 2000s (88 vs. 27). ...
... However, these studies find little correlation between conflict outcomes and PCJ. This is surprising given that scholars have long recognized the importance of the transition mode and power distribution in shaping opportunities for TJ processes (e.g., Huntington 1993;Huyse 1995;Snyder and Vinjamuri 2004). The questions raised above deserve further investigation. ...
... To this end, we combine research on TJ with research on postconflict stability and peace and emphasize the difference between postconflict and postauthoritarian circumstances: the government that carried out conflict tends to stay in power after a conflict, while a new regime confronts wrongdoings of its authoritarian predecessor after democratization. Building on the political explanation of TJ (e.g., Grodsky 2010;Huntington 1993;Huyse 1995;Nalepa 2010;Snyder and Vinjamuri 2004;Subotic 2009), we argue that decisions of whether to pursue justice and how to address past atrocities are driven by ruling elites' political interests and power, which are substantially shaped by the recent conflicts. Given the different natures of TJ strategies, the purpose and institutional means of addressing past atrocities vary significantly across postconflict environments. ...
Article
Why do some states pursue transitional justice (TJ) in the immediate aftermath of armed conflict while others do not? What drives a state to select a particular type of justice mechanism over another? Building on the political explanations of TJ, we argue that postconflict justice (PCJ) decisions are driven by the interests and power of political elites shaped by recently ended conflicts. Our empirical analysis shows that conflict outcomes and their subsequent impact on the balance of power between the government and rebel groups are the most important determinants of PCJ decisions. Domestic trials are most likely to emerge out of a decisive, one-sided victory while truth commissions and reparations are most likely to occur after a negotiated settlement. We also find that conflict severity interacts with conflict outcomes to affect PCJ decisions.
... As Huyse (1995) indicates, the initial success of transitional justice through prosecutions seen in post-World War Two ( More recently, the success of transitional justice has been questioned, especially with several scholars (Snyder & Vinjamuri, 2003;Brandon, 2007;Lind, 2009;) suggesting that there are no positive effects from transitional justice mechanisms. It is important to note that the success of transitional justice in Eastern Europe and Latin America occurred primarily in countries changing regimes from military dictatorships to democracy (Huyse, 1995). However, the transitions we see today are primarily from civil conflicts and election related violence with actors from previous regimes forming part of current regimes. ...
... Restorative justice mechanisms also encourage inclusiveness where victims will find closure and compensation without necessarily targeting one group. Huyse (1995) posits that countries that are undergoing transition need to establish legitimacy. Legitimacy could be established through democratic process that enable the government to gain both vertical and horizontal legitimacy. ...
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Abstract The purpose of this study is to assess culturally competent counseling strategies for male clients experiencing intimate partner violence. Intimate partner violence, also known as domestic abuse, battering or intimate partner violence occurs between people in an intimate relationship. In an African set up the male gender has been naturally looked at as the perpetrator, however, when the situation is different the male gender suffers shame, and stigmatization not only from the community but also in the help seeking behaviors. The fact that males can be the victims of domestic violence is increasingly recognized as a topic worthy of study and social scrutiny that can empower both therapists and clients in providing, seeking and receiving help. The study will be guided by the following objectives: to: understand intimate partner violence as experienced by men, how to Build trust and Rapport with male clients, Providing Support and Validation, and Developing Coping Strategies and Safety Planning. This study will adopt a Narrative literature review, with the aim to assess, critique, and synthesize the literature on Counseling strategies for male clients experiencing intimate partner violence in a way that enables new theoretical frameworks and perspectives to emerge. Key words: counseling strategies, intimate partner violence, coping strategies
... In this context, transitional justice literature provides some guidance in choosing response mechanisms by successor elites. According to Luc Huyse (1995), the justice choices made by the successor elites are generally determined by factors such as the legacy of the past repressive regime; the prevailing legal context during transition to democracy; the mode of transition unfolding and its effects on the regime change and balance of power between old and new elites. Olsen et al. (2010) empirically demonstrate that if it were a transition brought about by military victory, the new regime would have more opportunity to disband old security and military; can undergo strong transitional justice measures; and take other measures in a way that help consolidate its power. ...
... When the country has to decide to implement justice measures, numerous factors play out to determine the approach to be adopted (Huyse, 1995). These complex factors are interrelated, but their accurate weight of influence on the measures may also be different. ...
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The last decades witnessed the emergence of transitional justice as a global norm which obliges post-conflict transitioning states to address systematic past human rights violations through purposeful judicial and non-judicial mechanisms. While its typical architecture focused on formal transitions, the dynamics of non-regime transitions and compliance is often neglected in transitional justice literature, and the measures also signify manifold challenges. This article attempted to assess the beleaguered transitional justice measures implemented in Ethiopia’s current troubled non-regime transition which came after the authoritarian and Marxist TPLF/EPRDF regime has collapsed in 2018 after violent anti-government protest. Consequently, under the new hybrid elites’ leadership, host of justice measures were implemented but they unfolded in the absence of both typical transition and guiding transition roadmap. Through the lens of compliance and resistance, the article finds that rather than addressing legacies of atrocious past, the flawed and instrumentalist implementation of contested justice processes and the mismanagement of the narrow window of opportunity led to unprecedented societal violence and new political complexities. The Ethiopian case, therefore, reveals that seeking the retributive transitional justice measure in the absence of typical regime change and inter-elites bargain, and in an ethnically polarized political transition exacerbate inter-elite discord, bolster ethnic-supported resistance from predecessor elites, and harbors the risk of resurgence of new violence. Hence, it falls short of achieving the compliance with the transitional justice norm. Keywords: transitional Justice, compliance, challenges, Ethiopia, non-regime transition
... Further, any perceived successes of the old regime related to the economy or past conflict contribute to the "residual legitimacy" of the authoritarian state (González-Enriquez et al., 2001, p. 309). Huyse (1995) Some scholars pay closer attention to the extent of repression in authoritarian regimes to explain the adoption of transitional justice, arguing that the greater the repression, the more likely successor regimes will seek transitional justice mechanisms (Nino 1996;Huyse 1995). ...
... Further, any perceived successes of the old regime related to the economy or past conflict contribute to the "residual legitimacy" of the authoritarian state (González-Enriquez et al., 2001, p. 309). Huyse (1995) Some scholars pay closer attention to the extent of repression in authoritarian regimes to explain the adoption of transitional justice, arguing that the greater the repression, the more likely successor regimes will seek transitional justice mechanisms (Nino 1996;Huyse 1995). ...
Article
Transitional justice seeks to deal with legacies of the most brutal conflicts and political transitions within states; however, there is no one-size-fits-all approach. Post-conflict justice, as a subset of transitional justice, is concerned with justice mechanisms in the wake of armed conflict. Despite a growing literature exploring the conceptualization and effectiveness of transitional justice, less attention has been paid to the factors influencing the decision to adopt transitional justice and choice of mechanism(s). Further, theoretical understandings of how these choices ultimately contribute to the broader goals of justice, truth, and peace are limited. This study proposes domestic legal traditions as an explanatory factor influencing the pursuit of post-conflict justice. More specifically, I expect to find that states have preferred, or congruent post-conflict justice mechanisms based on their domestic legal traditions. To test this relationship, I develop a congruence variable to link domestic legal traditions to post-conflict justice mechanisms. I utilize the Post-Conflict Justice (PCJ) Dataset to test hypotheses regarding adoption and mechanism selection, finding that states prefer specific post-conflict justice mechanisms. More importantly, a survival analysis shows that the implementation of congruent post-conflict justice mechanisms increases the likelihood of longer-lasting peace in the post-conflict period. These findings provide key insights into important factors that can inform policy and best practices when considering the adoption and implementation of post-conflict justice.
... To explain the presence of these trials in Turkey today, I argue that redistribution of power among elite actors resulted in changes to the political opportunity structure available to prosecutors, and created a window of political opportunity for the advancement of justice-seeking litigation by rights groups (Tilly and Tarrow 2011). I also build on arguments made in the literature on power distribution theory-the claim that policy decisions regarding justice are determined mainly by domestic political power switches from previous authoritarian elites to a new government seeking policies to address justice (Zalaquett 1992;Pion-Berlin 1994;Huyse 1995;Nino 1996;Skaar 1999). I contend that changes in power distribution can alter the former rules of the game (such as de facto impunity for military officials), rendering them ambiguous for prosecutors and judges and ultimately allowing for individual activity that was previously high risk, such as the filing of indictments against military officials for human rights crimes. ...
... These trials are an exceptional example of domestic litigation for human rights abuses in the Middle East North Africa region (MENA), and to my knowledge have not to this point been examined in scholarly work. 22 To explain this phenomenon, I draw on literature citing power distribution theory-the claim that policy decisions regarding justice are determined mainly by domestic political power switches from previous authoritarian elites to a new government seeking policies to address justice (Zalaquett 1992;Pion-Berlin 1994;Huyse 1995;Nino 1996;Skaar 1999). I move away from the assumptions (inherited from the transitions literature) of a clear transition point, unilateral movement toward democracy, or even a general evolutionary trajectory of democracy over the long term. ...
Article
Domestic human rights trials are often conceptualized within the context of transition toward democracy. Yet, a recent cascade of trials in Turkey defies this argument. Between 2008 and 2015, Turkish courts oversaw fifteen trials examining individual criminal accountability for human rights violations carried out by the Turkish military during the conflict with the PKK in the 1990s. The cascade of trials has emerged and remained ongoing while the Turkish regime has become steadily more authoritarian. This article explains the emergence of these trials by the redistribution of power among elite actors, which created a window of opportunity allowing for ongoing legal mobilization to result in prosecutions. Drawing on original data from interviews conducted in Turkey between 2014–2015, this study demonstrates the importance of power redistribution for human rights during periods of democratic stagnation, while emphasizing the ability of trials to contribute to the contestation of hegemonic narratives.
... 53 Spain thus opted for a 'model of oblivion with partial rehabilitation' 54 and it is seen as the only country where a general impunity was explicitly declared and approved as such by all the democratic forces. 55 Albeit many scholars criticise this option as 'a third route towards impunity', 56 an 'amnesic transition' 57 or 'an imposed oblivion and granted impunity', 58 we should remind that it was taken in a historical moment in which the duty to prosecute and punish the alleged commission of international crimes, which we have recalled above, was far from being as firmly consolidated as it is nowadays. 59 In Spain, the prevention of criminal prosecution thus imposed by the Amnesty Law was confirmed by the later Law on Historical Memory (Law 52/2007, of 26 December, LHM), which provided a set of very needed measures for reparation (such as the withdrawal of coats of arms, insignias, and other objects that glorified Francoism), for re-integration and for building memory, all outside the area of Criminal Law. ...
... In either case, an elite strengthening its hold on power may find it effective to use material means to win and maintain the loyalty of holders of the commanding posts in society. Huyse (1995) provides evidence that the incorporation of large parts of previous elites, in particular the specialists, was a pragmatic decision taken all over Eastern Europe during the post-communist transition, while Mladjan (2018) describes the aforementioned tipping point in the process of elite change. Contemporary Montenegrin Politician Nebojša Medojević argues that, following the recent political change in Montenegro, key commanding posts have been kept by people loyal to the previous regime and that such an outcome is something on which the previous regime had been working for years before the Democratic Party of Socialists stopped being able to form the government in 2020 after 30 years in power (Apostolović, 2023). ...
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Moral capital is of great importance for both the economic and non-economic well-being of a society. However, moral capital is likely to erode during transitions, especially economic ones. The aim of the work is to determine the mechanisms through which the economic and political transition contributes to the erosion of moral capital, but also which measures can affect the rebuilding of moral capital. Analyzing individual cases, especially in Serbia, we draw general conclusions about the impact of economic and political transition on the decline of moral capital in transition countries. In this paper, we argue that the processes put in motion during economic and political transitions that lead to loss of moral capital are likely to result in a new equilibrium state. This state is characterized by the migration of the bearers of moral capital both to the margins of society and out of society and is highly unlikely to be reversed without a focused intervention by the state and society. We further argue that economic theory could both offer a justification for such an intervention and inform on the most effective way to conduct it. This is because the loss of moral capital can be seen as an instance of market failure in transition, one in which parts of the transitional elite are imposing a negative externality on the rest of society. Internalizing this externality-by making the culprits responsible could make the transition more successful; it would benefit justice and prosperity not only in the current economic transition but also in the future restructuring of the national economy and society. We argue that measures to restore moral capital ought to combine monetary transfers, improvement of institutional framework, and immaterial incentives with the aim of initiating processes that could benefit the whole society. Legally required monetary transfers should repair direct damage caused by corrupt actions, but should not benefit any particular individual, while immaterial incentives should be initiated both by the state and the wider society. We found out that activities of transition elites contribute to negative externalities, such as deterioration of moral capital, which results in less social and economic well-being. Additionally, we propose measures which can contribute to the internalization of these externalities.
... As the previous discussion illustrates, justice mechanisms that are implemented in democratic transitions are usually driven by key factors, including the balance of power between the old and new regimes, strategic preferences of incoming leaders, strong civil society movements, diffusion and the influence of international actors (Pion-Berlin 1994;Huyse 1995;Dancy and Poe 2006;Sikkink 2011;Kim 2019). Yet, justice processes may also emerge because of conditions that are separate from the conventional goals of a democratic transition. ...
... J.). Dies ist in Post-Konfliktländern mit einem instabilen Rechtssystem ein verbreitetes Phänomen (Huyse, 1995). In Liberia herrscht ein massives Gewaltproblem. ...
... The transitional justice has as primary typical and critical phenomenon that indicated by the term "lustration" (Cohen, 1995;Kritz, 1995;Crocker, 2001;Widner, 2001;Daly, 2001Daly, -2002Roche, 2005;Rohtarriaza, Mariezcurrena, 2006;Hafner, King, 2007;Clamp, Doak, 2012;Doak, O'Mahony, 2012;Palmer, Clark, Gran-Ville, 2012;Clamp, 2013;Daly, 2016;Nathan, 2020;Miller, 2021) (Huyse, 1995). A purge-type situation that unconditionally overcomes remembrance and silence, both formalized as the foundation of the new constitutional arrangement (Nathan, 2020). ...
Article
International criminal law constitutes, due to its intrinsic characteristics, a competition challenge at the universal level of norms and crimes which finds its most natural and logical manifestation through the final penalties provided for in the Statute of the International Criminal Court (StICC). The present work has as its object to analyze the punishment according to the StICC, the hypotheses of normative convergences that are established alongside the foreseen sentences, the jurisprudential cases, the verifiable convergences within the global international community where the sentences take place over the years, the path of harmonization, integration, evolution, development not so much of international criminal law but also of domestic law, the rationalization of accounts with internal justice which is never eliminated by the international one, snubbed towards a type of annihilating a priori inevitable phenomena against the impunity, the continuous violence against human rights and the strength of the victors and hegemons.
... The current chapter does not deal with issues of apology, forgiveness, or reconciliation, although they are part of the transitional-justice vocabulary (Kritz 1995). Nor does the chapter focus on the strategies developed by the successor state's political elites ( Huyse 1995 ). Here, the focus is on legal solutions to a previous regime's mass violation of human rights. ...
... For some time, transitional justice scholars have recognized that transitional justice policies were the product of the balance of power, which referred to the relative power of incoming and outgoing elites at the time of the political transition (Benomar 1993;Huntington 1991;Huyse 1995). However, as transitional justice policies evolved so did the understanding that the balance of power was not a static phenomenon. ...
Article
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Transitional justice processes take on a range of different forms. Much attention is paid to their face value rather than the underlying characteristics that embody the true nature of these mechanisms. This articles argues that more attention needs to be paid to one underlying factor that has critical implications for the role of transitional justice in shaping new political dynamics: the impartiality or selectiveness of transitional justice processes. Using a comparative analysis of state-sponsored transitional justice in twelve African countries, we explore the contextual factors that appear to impact on impartiality, in order to make sense of the politics that shape transitional justice. The findings suggest that impartial transitional justice appears to flow from processes where the power balance is more equal, a situation that appears enhanced in contexts where there is some degree of democracy leading up to the transition, where the conflict was in the form of repression rather than civil war, and where change came as part of a reform process, rather than a military victory. This raises serious questions about which contexts may be amenable to effective transitional justice processes, while also highlighting the danger of political manipulation of transitional justice.
... Most of the theorizing about amnesty has come from studies following transitions to democracy. Many researchers emphasise the conditions of the previous regime, arguing amnesty is more likely the longer a regime has been in power, with repression further in the past, and after a high level of atrocities (Elster, 2004;Gonzalez-Enriquez et al., 2001;Huyse, 1995;Olsen, Payne, & Reiter, 2010a). However, other researchers take a more strategic view of amnesty and focus on the process of transition, arguing that amnesties are primarily given to incumbents leaving power who have the potential to disrupt the democratization process (Huntington, 1991;Kritz, 1995: xxxi). ...
Thesis
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This thesis examines the use of amnesty as a tool for ending civil wars. The thesis is innovative in its focus on amnesties during civil wars and their impact on conflict termination. I examine the conditions under which governments grant amnesties, and the various mechanisms through which amnesty acts as an incentive to stop fighting. I then study how international laws and norms against impunity for atrocious crimes influences the use of amnesty. The thesis combines in-depth quantitative and qualitative analysis by using statistical analysis of all conflict episodes from 1975-2011, as well as an intensive study of the peace negotiations in Colombia. The thesis has a number of innovative findings. I show that governments are more likely to use amnesty as an instrument of war, and they use it to pick off weaker groups with whom it is easier to settle. Secondly, I find that amnesties are effective both as a direct incentive, but also because they give the government military advantages. Thirdly, I demonstrate that governments balance amnesty against other transitional justice measures to avoid giving political concessions. The thesis makes various contributions to different literatures. To the transitional justice literature, I bring a comprehensive study of amnesty during civil war, and empirical findings on its determinants and effectiveness. To the civil war literature, I bring a theory of amnesty as an incentive in conflict termination, and a model of the impact of legal intervention as an external action. Overall, this thesis offers both a comprehensive study and theoretical insights into the use of amnesty during civil war.
... Zakonski neregulirane provjere su se temeljile na sumnjivim, politički motiviranim dokazima, što je sveukupno pridonijelo širenju ozračja sumnje. Deseci hiljada, prethodno neprovjerenih, imena kandidata za "saradnju" su kružile u medijima, uzrokujući velike materijalne i nematerijalne štete pojedincima i organizacijama (Huyse, 1995) Nakon dvije sedmice, niko od zastupnika nije podnio ostavku, pa je Komisija javno objavila imena 10 zamjenika ministara za koje je utvrđeno da su sarađivali sa StB (Bren, 1993:17). ...
Thesis
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Ovaj rad je posvećen tematici demokratske tranzicije u bivšim komunističkim zemljama Srednje Evrope. Oslanja se na teorijsku i praktičnu aplikaciju zakona o lustraciji u zemljama Srednje Evrope nakon sloma komunističkog režima, s posebnim osvrtom na zakonodavstvo, pravni okvir i provođenje procesa lustracije u Češkoj Republici.
... Following Luc Huyse (1995), 7 truth is both retribution and deterrence; the truth always serves as trouncing the punisher and deterrence. Moreover, the spectrum of retribution-reconciliation, responsibility or ideal attitude we take is selective punishment, a model that emphasizes formal responsibility or legal selectively. ...
Article
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The law on human rights court has brought the new hopes for certain people have suffered because of the human rights violation happened in the past government (before the law enacted in the years of 2000). The demand of justice has been made by victims, the families of victims and other sympathetic parties by bringing those who have violated human rights in the past. The demand for justice does not only focus on human rights violations, which occurred in the past but also similar human rights violations that will occur in the future. The existence of a permanent Human Rights Court seems to imply that human rights will be upheld and protected. The resolution of past human rights violations via a conflict approach is preferable for the national reconciliation. The resolution of past human rights violations through extra-judicial organizations is an advanced step towards resolving the case, whereas a conflict approach can be used to settle the case. The existence of the Human Rights Law provides a new frontier in implementing the principle of restorative justice in the approach of case settlement. It is hoped that such restorative justice can create a political balance between the past and the future.
... However, the strong state authority needed to prosecute all human rights violations as well as any other offence also constitutes a potential source of power abuse (Zalaquett 1995;Huyse 1995). If new democracies that are not particularly restrained by circumstances choose to punish unreasonably many or breach legal principles, a transitional justice process even may create new unfairness that can be labelled transitional injustice (Borge 2012). ...
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Using transition theory from political science, this paper analyses how the lives of children of Norwegians punished for collaboration with the German occupant were adversely influenced by transitional justice after the return to democracy in 1945. The paper highlights how the complexity and hectic character of such regime changes are associated with a high risk for unintended social outcomes, a risk that has received little attention in the study of transition processes. Findings indicate that in order to avoid harmful consequences for children, careful and long‐term thinking is essential when new democracies select a transitional justice strategy.
... 64 According to Luc Huyse, prosecution is 'by far the most radical interpretation of acknowledgment and accountability.' 65 Prosecutions in the transitional justice context have been at the national, but most prominently at the international, level. Ostensibly following the 'justice cascade,' 66 the Abubakar regime also commenced the prosecution of a handful of notorious military and security operatives of the penultimate military regime. ...
Article
Adoption of the colonial template of governance by successive postcolonial governments in Nigeria has limited the ambit of transitional justice, rendering it incapable of addressing the root causes of systematic abuses and conflict in the country. Pathologies of colonial injustice and violence were transmitted into governance in the postcolony and this structural continuity has locked down the prospect of justice and reforms as an integral part of the governance complex. Critical analysis of the Nigerian experience calls attention to the need for transitional justice theory and praxis to engage with the colonial legacy in nonsettler, postcolonial societies. Understanding and engaging with the colonial legacy is critical to the prospects of successful transitional justice in postcolonial polities. © The Author(s) (2018). Published by Oxford University Press. All rights reserved.
... One of the most popular explanations for the implementation of post-conflict trials revolves around the intensity of civilian victimization during the conflict. 3 Previous research has found that the magnitude of death and destruction within a country during its civil war are positively associated with the implementation of trials. High levels of conflict severity and civilian victimization are important conditions in the establishment of trials because this violence causes groups within and outside the war-torn country to call for justice in the name of the victims. ...
Article
Why do some countries implement trials to punish perpetrators of state-sponsored mass killing during civil war? A common explanation is that domestic and international demand for justice pressures the government to implement trials. However, this demand is unlikely to produce prosecutions because state-sponsored violence during fighting provides elites incentive to conceal information after war. The revelation of information concerning the government's atrocities could result in renewed domestic instability or international sanction. Therefore, a government that has committed atrocities during the civil war, and emerges victorious from the conflict, should be unlikely to pursue trials in the aftermath of the war.
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El capítulo destaca la importancia de compartir los resultados de investigaciones académicas con las personas que contribuyeron a su elaboración, utilizando el cine como herramienta efectiva. La colaboración entre fuentes primarias y la academia es crucial para enriquecer el conocimiento. Se resalta la necesidad de evitar el extractivismo epistémico, especialmente en contextos como El Salvador. Las artes visuales facilitan la difusión de hallazgos a personas sin acceso a medios tradicionales.
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Attention to Uganda’s children born of war, also known as children born in captivity – to former child soldiers, emerged, following the publication of a thesis on Uganda's forgotten children born of war was fronted by Apio (2007). From that time, various academic researchers have analysed the plight of these children and their findings have influenced interventions targeting them. However, progress has still left some of the areas that were not at the epicenter of the war at the margins. Teso was as well intensely affected by the war but because it was not at the epicenter of the war, it fell through the cracks. This article uses empirical data analysed from Teso sub-region, as part of a study on children born of war in Uganda. These indicate that the plight of these children is not different from those in Acholi and Lango sub-regions, and also provide additional insight that is essential for the broadening of knowledge on the subject. This paper argues for academic and development practitioners to pay attention to the needs of Teso’s children born of war - as a precursor to their sustainable integration and post-war justice benefits like reparations. Received: 29 December 2023 / Accepted: 25 February 2024 / Published: 6 March 2024
Chapter
This article examines the relationship between the peace negotiations and the ICC's investigations following the opening of an ICC investigation into the situation of Ukraine. The article first examines the impact of international criminal prosecutions on peace negotiations and peacebuilding. It then identifies the developing international norms that limit the use of amnesty in transitional periods and explains the forms of amnesty that are permissible under international law in the context of transitional justice. It then reviews the impact of peace negotiations and amnesties on the consideration of the interests of justice at the ICC. Finally, it discusses possible means of accountability in the Ukrainian situation.
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El objetivo de este artículo es analizar el aporte que puede ofrecer a los procesos de justicia transicional las orientaciones y mecanismos de la justicia restaurativa, para negociar la paz en conflictos armados. Para lo cual se usó una metodología cualitativa con diseño descriptivo y exploratoria, con un enfoque histórico y con fuentes secundarias consistentes en tratados internacionales, estudios, acuerdos de paz y experiencias comparadas. Análisis en el que se concluye que los conflictos armados son parte de la historia de la humanidad, siendo el siglo XX unos de los más letales, frente a los que se requiere para mitigar sus graves consecuencias, implementar procesos de justicia transicional, la que necesita incorporar como uno de sus formas de intervención, mecanismos de justicia restaurativa, doctrina que mediante procesos de negociación mediada, permita esclarecer la verdad, reparar a las víctimas, preservar la memoria histórica y construir caminos de paz.
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The article carries out a philosophical and legal analysis of existing approaches to the definition of "transitional justice" and forms the author's position regarding its understanding. Two features of the emergence of the model of transitional justice are singled out: 1) the studied model is built on practical experience, and later became the basis of theoretical studies on transitional justice; 2) this model arises at the initiative of the international community as a reaction to repeated violations of human rights. It was determined that despite the general nature of the definition of transitional justice defined by the UN, many researchers criticize it for the following reasons: firstly, its content does not cover the occasions of changes in political regimes during which human rights were violated; secondly, it does not indicate the admissibility or inadmissibility of using the concept of transitional justice during an armed conflict, or the possibility of its application only after the end of the conflict; thirdly, the definition defined by the UN does not reflect the relationship between transitional justice and international law. The author's definition of transitional justice is proposed, it is a set of tools, processes and mechanisms aimed at overcoming the consequences of human rights abuses in the context of armed conflicts and/or changes in political regimes, which consist, first of all, in bringing to justice those guilty of committed offenses, compensation for damage (as moral and material), establishing the truth about the circumstances in which human rights were violated, achieving reconciliation and establishing justice.
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This article offers a socio-legal reflection on the relation between law, state obligation, and attempts to institutionalize collective memory. As the question of memory institutionalization becomes most pertinent in the context of regime change that imposes on an incumbent government certain expectations for addressing the past, the article considers this research problem from the perspective of transitional justice theory. The transitional justice paradigm allows for an interdisciplinary consideration of the topic. Special attention is paid to legal norms and mechanisms directed towards establishing authoritative knowledge about the past. The emerging principle of the right to truth is presented as an integrating and rights-based perspective from which to approach societal demands for acknowledging injustices of the past. Measured against the fundamental rights that lie at the heart of transitional justice theory, three types of truth revelation procedures are presented. The article shows that the relationship between law and memory – which is often reduced to one of political instrumentalization – should, in accordance with the values of a liberal democracy, be reframed from the perspective of individual and collective rights. The article seeks to contribute to the field of memory studies in the social sciences by exposing functions of legal norms and mechanisms that are often overlooked when discussed from the perspective of the politics of memory.
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The development of transitional justice measures can be fully understood only when one takes into account the values, rationales and justifications that lie at the roots of various ways of dealing with past wrongs. Seeing transitional justice as an ontologically complex structure, the article aims to relate the legal instruments that concentrate on past abusers to the axiological layer of settling accounts with the past. In order to do so, three basic models of transitional justice – a retribution model, a historical clarification model and a thick line model – all based on the measures implemented during democratic change, are presented. Then, with the use of a classic division between consequentialist and deontological argumentation, the article describes transitional justice justifications. Next, the values emblematic for each of the models are identified. Finally, the article proposes a structure of transitional justice moral reasoning that may guide transitional decision-making process on the axiological level. [Oñati Socio-legal Series, 2016, No. 6(3), pp. 584-606]
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International and Transnational Crime and Justice - edited by Mangai Natarajan June 2019
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The concept of transitional justice has been associated with the periods of political change when a country emerges from a war or turmoil and attempts to address the wrongdoings of the past. Among various instruments of transitional justice, truth commissions stand out as an example of a non-judicial form of addressing the crimes of the past. While their setup and operation can be criticized on different grounds, including excessive politization of hearings and the virtual impossibility of meaningfully assessing their impact, it has been widely acknowledged in the literature that the Truth and Reconciliation Commission in South Africa can be regarded as a success story due to its relatively strong mandate and widespread coverage and resonance it had in South African society. We would like to compare this commission from the 1990s with a more recent example, the Brazilian National Truth Commission, so as to be able to address the question of incorporation of gendered aspects in transitional justice (including examination of sexual violence cases, representation of women in truth-telling bodies, etc.), since gender often remains an overlooked and silenced aspect in such initiatives. Gendered narratives of transitional justice often do not fit into the wider narratives of post-war reconciliation. A more general question addressed in this research is whether the lack of formal procedure in truth commissions facilitates or hinders examination of sexual crimes in transitional settings.
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Objectives Why do states create a truth commission after political transition? This article answers this question by testing three key theories after surveying the existing literature: transnational advocacy networks, the balance of power between old and new elites, and diffusion theory. Methods Cox proportional hazards models were used to explain the adoption of a truth commission. I used the Transitional Justice Database Project database on truth commissions in 71 countries that became democracies between 1980 and 2006. Result Strong evidence supports transnational advocacy networks and diffusion explanations. First, active domestic and international advocacy is a key factor. Second, diffusion theory is supported, as establishing a truth commission in neighboring countries is a relevant factor. Transitional countries are most sensitive to truth commissions adopted in culturally similar countries. Conclusion I found empirical evidence supporting the relevance of diffusion, domestic advocacy groups, and international actors.
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Lustration is a mechanism of transitional justice and a legal process that addresses the question of suitability of former regime officials for public posts in a new democratic society. It is a procedure of the official assessment of an individual’s integrity, in view of his or her past record of involvement with the communist secret security services. Questions to be addressed when discussing and analyzing the lustration process relate to its basic notion and meaning. One has to determine what constitutes the choice of lustration model, its targets, (both individuals and institutions); official lustration authority; legal procedure and appeal; timing and duration; outcomes, and finally types of actions. The main objective of this article is to explore basic theoretical and conceptual aspects of the lustration on the process of democratic consolidation.
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Dieses Kapitel geht der Frage nach, welche Auswirkungen nationale Strafverfolgungen aufgrund von Menschenrechtsverletzungen sowohl bei den Opfern als auch in der Gesellschaft haben. Das Hauptziel der Arbeit besteht darin, zu analysieren, welche Bedeutung diese Gerichtsverfahren für die Opfer haben, welche Dynamiken sie entwickeln, welche Risiken sie darstellen und welche Auswirkungen sie haben. Hierfür fokussiert sich dieser Aufsatz auf den Fall Argentiniens, wo seit 2006 systematisch im ganzen Land Strafprozesse wegen Menschenrechtsverletzungen geführt werden, die während der letzten argentinischen Militärdiktatur (1976–1983) begangen wurden.
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Immediately after the fall of the Iron Curtain, 'memory' became the key notion for approaching the communist past. The 'rediscovered memory' of East Europe (Brossat et al.1990) became the subject of numerous articles and books. Scholars analysed the collective/individual/national/historical memory of communism from different angles: nostalgia versus amnesia (Troebst and Brunnbauer 2006; Todorova and Gille 2010), mediums of remembering or 'genres of representation' (Todorova 2010), public monuments of the communist era (Losonczy 1999; Ladd 2002; Combe, Dufrêne and Robin 2009), communism as a lieu de mémoire (Znepolski 2004) and public policies on memorializing communism (Esbenshade 1995; Verdery 1999; Maurel and Mayer 2008). A few scholars have focused on the decommunization process and its legal and political ramifications (Welsh 1996; Huyse 1995). © 2015 Malgorzata Pakier and Joanna Wawrzyniak. All rights reserved.
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As Christine Bell writes in her 2009 overview of the field of transitional justice (TJ), it is unclear whether in practice transitional justice is “‘good’ (an extension of human rights discourse, or necessary for democratization or peace), ‘bad’ (imperialist, hegemonic, impunity serving or promoting a dangerous legal exceptionalism) or a value-neutral tool with which both ‘good’ and ‘bad’ goals can be pursued” (Bell, 2009, p. 6). Despite this uncertainty within the field itself, the existing transitional justice literature and much of the discussion surrounding it throughout the world has proceeded with the assumption that transitional justice is implemented to advance the normatively “good” goals of the liberal peace—namely, (1) promoting truth and reconciliation, (2) preventing the resumption of armed conflict, and (3) increasing democratization and civic participation. While there is no doubt that these are some of the main motivations of the international community as well as the donor agencies that support transitional justice, these need not be the motivations of the implementing governments themselves, and this should cause us some concern.
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It is very likely that the month of May 2013 will forever be remembered as a landmark date of reckoning with the crime of genocide. On 10 May in Guatemala City the the three-judge First High-Risk Tribunal A sentenced the former president and chief of staff Efrain Rios Montt to 80 years imprisonment for his involvement in the targeted attacks on indigenous communities in the period between 1982 and 1983 when he was in power. Human rights advocates and opponents of impunity applauded this decision because for the first time in history a former head of state was convicted of genocide. The cheerful outbursts were short in duration, however, because less than two weeks later, on 21 May, the five-judge Constitutional Court quashed the earlier decision for not respecting the right to a fair trial of all the accused and ordered a complete retrial. This time supporters of the former president expressed their sympathy and satisfaction in clear terms (Open Society Justice Initiative).
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