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Generations of Transitional Justice in the World
Abstract
The objectives of the paper are to investigate the axiomatic truth and record the human wrongdoings of the past, deliver justice to the victims at present, make perpetrators accountable and initiate generous change in the rule of law for prosperous, peaceful and harmonious nation. The state-of-the-art paper is prepared based upon literature review, exchanging and sharing, and a practical observation approach rather than theoretical-analytical conception, except Generation. An interdisciplinary (politico-legal) word, ‘Transitional Justice’ (TJ) is healing the violations and/or abuses of yesterday, investigating and reconciling today and hoping to protect the tomorrow for not only a few privileged, but for the people of all Generations. The Generation tends to ascertain cause, nature, degree and patterns of identity-based crimes and genocide, determine the role of perpetrators and analyze the impact of the Truth Commission. Generally, Generation refers to the biological age groupings (20 to 30 years) that live together and share similar characteristics – attitudes, behaviors, contexts, sufferings and cultures. The paper reviews over 90 TJ countries in Five Generations (I, II, III, IV and 0), starting from the post-World War II to the present day world. Generation-I presents a genesis of TJ, a notion changed from the holocaust to the retributive justice which comprises the analyses of Nuremberg Trial and Tokyo Tribunal. Rather than making the main perpetrators involved in World War (WW) II accountable, the Nuremberg Trial has been a holier-than-thou betrayal to the Germans by a pseudo trial, and immunity to ‘French, Soviet Union, Americans, British and Japanese Emperor’ and Geneva Convention violators owing to a high political masquerading and retribution. Generation-II reveals a notion changed from internecine war crimes to humanitarian justice. It compares and contrasts the functions of the Truth Commissions that have a direct structural link with perpetrators’ four Ds (viz. delay, deceive, deny and dilute) approaches of TJ. Beyond domestication, TJ is an international human rights law, international criminal law and international humanitarian law. TJ has been more political in nature and less legal in practice. Generation-III tends to a notion changed from domestic criminal jurisprudence to international tribunal justice. The western developed and non-signatory nations of the Rome Statute try hard to establish and control the International Criminal Court (ICC) to their bad relation with post-conflict countries. Generation-IV discloses a notion changed from sectarian violence to reconcile justice. In such cases, non-state elite actors normally engage against the weak and poor people to prove their superiority conducting communal apartheid and cultural genocide. Lastly, Generation-0 (Zero) refers to a notion changed for justice establishing the Truth Commission. Truth Commissions have been unable to identify and investigate the human rights violations and/or abuses in the post-conflict periods, despite huge national and international pressures. Generally, what for transitional justice: victor (perpetrator) or loser (victim and or survivor)? The answer is: ‘world’s Transitional Justice ironically ensures freedom to the perpetrators further limiting justice to the poor and weak victims and society at large’ in all Generations. On the other, the universe moves towards the identity-based multi-polar new world order setting owing to innumerable interests and practices of the Transitional Justice system.
... The UNMIN served in Nepal fro m January 23, 2007, to January 15, 2011 ( for 3 years, 11months and 3 weeks). It had init ially registered 32,250 MA co mbatants but only 19,602 (61%) were verified, co mprising 4,008 minors -late recruits, stationed in 7 main and 21 satellite cantonments(Pathak, December 12, 2012). Second, 18-years o ld a former child soldier (Manju Gurung) who was escaped fro m Shaktikhor cantonment in Chit wan was invited to the 6341 meetings of the UN Security Council as a special guest on the init iative of the UN Special Rapporteur on Children in Armed Conflict on June 16, 2010. ...
The objectives of the paper are threefold: a) to find out the axiomatic truths, investigating crimes committed in the past; b) to examine the steps of the trial to the perpetrators for accountability and to deliver justice to the victims without prejudice at present; and c) to foster peace, human security and harmony for not repeating crimes in future. This state-of-the-art paper is prepared based on archival literature review, exchanging and sharing, Rome Statute defined functions and a practical observation approach rather than theoretical conception. The Hague Court gathers and scrutinizes testimonies, questioning victims and witnesses and analyzes the shreds of evidence of a suspect’s innocent or guilty. The examination and investigation guided by Rome Statute jurisdiction shall initiate on five criteria: (i) State Party, (ii) Declaration of Acceptance, (iii) Situation Referring by the UNSC, (iv) Transnational Crimes and (v) Petition by Victim/Representative. As of December 2019, 123 countries have become the Member States to the Rome Statute, but China, Iraq, Israel, Libya, Qatar, USA and Yemen voted against the treaty. So far, the Office of the Prosecutor (OTP) has opened official investigations for 12 situations and additional nine situations for preliminary examinations. The OTP closed seven situations: Gabon, Honduras, South Korea, Venezuela and Registered Vessels (Comoros, Greece, and Cambodia) from preliminary examinations. Till date, 45 suspected persons have been warranted by The Hague Court including the Presidents of Sudan, Kenya, Ivory and Libya. Out of 45 accused persons, proceedings against 50 per cent (22) have been completed. Four countries including South Africa and The Philippines have withdrawn from the Rome Statute. Burundi who has been the first country to refer the situation to the Court became the first nation to leave Statute. The case of Bangladesh/Myanmar is the newest one. Ukraine has accepted the jurisdiction of Statute but failed to ratify it. The longest length of the preliminary examination is holding by Afghanistan, but the Pre-Trial Chamber dismissed its report over the influence of the USA’s power and politics. Reparations against three rebel leaders, i.e., Thomas Lubanga, Germain Katanga and Ahmad Al Mahdi for victims were pronounced by The Hague Court. Warrants of arrest along with red corners notice are issued to four (two each from Libya and Sudan) suspected individuals. The Hague Court’s investigations should be evidence-based, not target-based unlike toing and froing of registered vessels of Comoros, Greece and Cambodia. The superior complexity of the Prosecutor Fatou Bensouda and advertisement of her photos in all official statements are to be ended.
Ante un trasfondo de orden internacional de futuro y contornos inciertos, pero también de muy probable inestabilidad generalizada en gran parte del Sur Global, Europa y África se encuentran en un proceso de reconfi guración de sus relaciones. Es un proceso que requerirá tiempo, dada la larga trayectoria de relaciones entre los continentes y la impronta de jerarquías y desigualdades construidas históricamente, y es un proceso necesario precisamente para superar ese legado. Esta nueva edición del Informe África, a través de sus ocho capítulos, aborda diferentes temáticas centrales en esas relaciones: desde desafíos globales como son la lucha contra el cambio climático, la salud, o las relaciones económicas, hasta desafíos políticos a los que se enfrentan diferentes países y regiones, para resolver los confl ictos que los atraviesan y consolidar procesos que reviertan en el bienestar del conjunto de la población. Las diferentes contribuciones de los nueve autores que participan en el informe ponen asimismo de manifi esto cómo las desigualdades siguen marcando los vínculos entre los dos continentes, y varios de
ellos ponen además el foco específi camente en la región del Sahel.
In 2006, the Government of Canada announced the approval of a final Residential Schools Settlement Agreement with the collaboration of the four churches responsible (United, Anglican, Presbyterian, Catholic), the federal government and residential school survivors. Schedule "N" of the Agreement lists the mandate of the TRC; therein, the TRC states one of its goals as: (d) to promote awareness and public education of Canadians about the system and its impacts. Can education - as the TRC hopes to engender - truly be transformative, renewing relationships and promoting healing in the process of forging these new relationships? The literature reviewed and the conferences attended highlighted that generating empathy may be a necessary ingredient for the instigation of social change, but is insufficient. Transformation through education, or reconciliation through truth-telling, testimonial reading and responsible listening would mean claiming a genuine, supportive responsibility for the colonial past. Educational policy and media initiatives are fundamental to creating awareness, developing public interest and support of the TRC's recommendations. However, authors also stress the importance of critical pedagogy in the whole process of truth and reconciliation, and that real reconciliation would require confronting the racism that initiated these institutions and allowed for a decontextualization of their impacts.
Co-authored with Vasuki Nesiah
The article is an attempt to interrogate Zimbabwe’s national unity and reconciliation efforts through one of its key organs, the National Peace and Reconciliation Commission (NPRC). It contends that while the NPRC potentially represents a first attempt at resolving Zimbabwe’s violent past, the central premise on which both the Commission and the government’s broader national unity and reconciliation policy are based is critically flawed. The unity that the government seeks to achieve as a vehicle for reconciliation relies upon a negation of accountability, itself a core component of national healing and reconciliation that allows for an open and honest engagement with Zimbabwe’s dark and gruesome past.
In 2016 three African states namely South Africa, Burundi and The Gambia submitted written notifications of withdrawal from the Rome Statute of the International Criminal Court (Rome Statute) to the Secretary-General of the United Nations pursuant to Article 127 of the Rome Statute. Although the African Union welcomed and fully supported the three withdrawal notifications and considered them as ‘pioneer implementers’ of its ‘Withdrawal Strategy’, The Gambia and South Africa withdrew their notifications of withdrawal. Some other states – Kenya, Namibia and Uganda – have made threats to submit withdrawal notifications. This article examines four issues arising out of the said withdrawal notifications. First, why did the three states submit withdrawal notifications from the Rome Statute? Second, what is the impact of the three states’ withdrawal notifications? Third, is the African Court on Human and Peoples’ Rights (or the yet-to-be-established African Court of Justice and Human and Peoples’ Rights) a suitable African regional ‘alternative’ to the ICC? Finally, what steps might be taken to avoid, or at least minimise, further withdrawals in the future and to avoid impunity of perpetrators of international crimes in states that have withdrawn from the Rome Statute?
The Commission for Truth and Justice (CVJ) issued in 2008 the report titled "Anive Haguä Oiko /So that it does not happen again" that documented serious violations of human rights perpetrated during the 35 years of Stroessner's dictatorship. As an exercise of transitional justice, the commission becomes an opportunity to energize a social debate about the past. This study reflects the emotional impact and the levels of social sharing associated with the commission in a sample of victims of repression (54.9 %) and nonvictims (45.1 %), with different levels of participation in commemoration activities. The results indicate that for victims the participation in rituals of commemoration increases the level of social sharing and makes salient emotions of those who are mobilized. The perception of effectiveness in the CVJ as a measure of transitional justice is related to this emotional arousal and social sharing and varies depending on the level of participation in collective rituals of the population. Whereas for nonvictims participation in rituals of commemoration increases the perceived effectiveness of the commission through social sharing and emotions of guilt and shame, among victims participating in commemorations reinforces perceived effectiveness of the commission through social sharing and expressing emotions of guilt, anger, and fear.
Certain truth and reconciliation processes around the world remain understudied. This means that valuable lessons for transitional justice processes elsewhere are not learned. This article therefore examines lessons from the Togolese Truth, Justice, and Reconciliation Commission (CVJR). It examines the historical context of violence in Togo in order to understand why the country decided to establish a truth commission and looks at how previous inquiries established the need for such a process. Other issues examined are the CVJR's mandate, the time period provided to do its work, and the pros and cons of the choices made with respect to these matters. The article looks at the powers of the CVJR, its recommendations, and examines issues related to truth recovery, victims' needs, and the Commission's ability to combat impunity. Finally, the Commission's effectiveness and legacy for the country are assessed. The article argues that for an under-resourced process the commission performed well in some areas but not so well in other areas. It is argued that it was a useful process in some respects, but that more could have been done had the process optimally worked. The article provides lessons that can be ascertained from the Togolese process.
We examine the origins, processes and outcomes of the Mauritian Truth and Justice Commission’s (MTJC), examination of slavery, indentured labour and their contemporary effects. It has not been considered a success by any commentator. We therefore ask how far James L. Gibson’s application of legitimacy theory to ‘Truth Commissions’ has purchase in this context and whether it was cynically motivated. We use MTJC documentation, extensive interviews and newspaper reports to show that Gibson’s theory provides insight into MTJC outcomes while demonstrating that politico-economic power structures were crucial. Conversely, the MTJC does not sit easily in Van Zyl’s ‘cynical operation’ category.
Transitional justice and reconciliation processes have become central to postconflict peacebuilding in Africa. Yet these processes are contentious on numerous levels: Firstly, they reveal tensions between local and external actors both in terms of how they are conceptualised and how they are actualised. Secondly, they reveal the gap between what these processes are imagined to achieve and what they are actually able to achieve. Thirdly, they reveal the difficult fit between decisions made between elite actors and the implementation of these decisions in local contexts. The case of Burundi, and its proposed truth and reconciliation commission, illustrates all of these. Tensions between the Burundian government, local NGOs and external actors such as the United Nations, the European Union and donor countries in relation to transitional justice and reconciliation processes is starkly evident. Ambitious mechanisms, such as a truth and reconciliation commission, are being implemented with imagined outcomes which they are unlikely to achieve. The decisions that have been made between elite actors leading to the implementation of this commission and other similar mechanisms reveal that these mechanisms are not necessarily a good fit in Burundian communities. This paper will explore the challenges, opportunities, and leasons learnt in relation to transitional justice and reconciliation processes, specifically refering to Burundi's mediation process, peace agreement, and truth and reconciliation commission and the act that accompanies it. It will also consider some of the traditional approaches to transitional justice and reconciliation such as the possible role of the bushingantahe and the work of local NGOs.
In human culture, storytelling is a long-established tradition. The reasons people tell stories are manifold: to entertain, to transfer knowledge between generations, to maintain cultural heritage, or to warn others of dangers. With the emergence of the digitisation of media, many new possibilities to tell stories in serious and non-entertainment contexts emerged. A very simple example is the idea of serious gaming, as in, digital games without the primary purpose of entertainment. In this paper, we introduce the term serious storytelling as a new potential media genre – defining serious storytelling as storytelling with a purpose beyond entertainment. We also put forward a review of existing potential application areas, and develop a framework for serious storytelling. We foresee several application areas for this fundamental concept, including wellbeing and health, medicine, psychology, education, ethical problem solving, e-leadership and management, qualitative journalism, serious digital games, simulations and virtual training, user experience studies, and online communication.
Truth and reconciliation commissions (TRCs) as transitional justice and conflict resolution mechanisms, have gained international prominence, especially following South Africa’s much publicised TRC experience. Among other things, TRCs are expected to contribute to democratic consolidation by correcting the historical narrative, acknowledging past human rights violations and fostering a human rights culture in nascent democracies. This was the spirit in which Ghana’s National Reconciliation Commission (NRC) executed its mandate from 2002 to 2004. However, a decade after the commission issued its final report, this article reflects on the failure of the Ghanaian state to disseminate the report. It is argued that the failure to disseminate the NRC Report could jeopardise the commission’s potential contributions to sustainable reconciliation, human rights and democracy in Ghana. This article accounts for the failure to disseminate the report, and makes corrective recommendations as well as suggestions for future research.
The International Crimes Tribunal in Bangladesh was re-established in 2010 in order to hold the perpetrators of the 1971 War accountable for international crimes; namely, war crimes, crimes against humanity and genocide. The Trial has already begum to operate and has been dealing with various challenges. The basis of the trial proceedings is the International Crimes (Tribunal) Act 1973. The Parliament of Bangladesh enacted the Act in accordance with international law shortly after the War. This paper assesses the key legal issues that arise from the context of the 1973 Act, and will provide a reflection on trial proceedings in light of international law. It concludes that any initiatives to address the impunity of perpetrators and offer redress to the victims of gross human rights violations should be applauded, while any trial proceedings that do not follow appropriate standards for a fair trial and offer the right of due process should be deprecated.
The Kosovo Early Warning System Project is aimed at building the capacity of local analysts to foresee potential crises, and based on its findings to advise on crisis prevention policies. The Reports are intended as strategic planning, response, and policy tools for development and peace-building actors in Kosovo by deriving recommendations for preventative measures from trend analysis and monitoring of key sector indicators of fundamental conflict-causing factors.
The Early Warning System Project is a UNDP regional initiative; at present most SEE UNDP Programmes produce Early Warning Reports on a periodic basis. The Kosovo Reports are cofunded by USAID and UNDP, and implemented by the Institute for Development Research “Riinvest” and independent Kosovo analysts.
In April 2012, Angola celebrated ten years of a peace deal which contained an amnesty law. The Angolan government has over the past ten years demonstrated to be unwilling to prosecute perpetrators of war crimes. Potential war criminals currently (still) take important positions in the Angolan government or live as well known public figures in- and outside Angola. The author analyses that especially a lack of domestic interest in doing justice and third countries’ interests in Angola’s oil reserves might serve as an explanation why up to this moment no justice has been done. The Angolan case illustrates how international actors may react by taking a ‘one-day principled position’ when it comes to calling for prosecution. Potentially hampering fragile peace negotiations, critique on the blanket nature of the amnesty is before and immediately after the peace process voiced, not to be repeated anytime, anyplace, anywhere.
This article analyzes the efforts of organized indigenous peoples to exercise their own forms of law and justice within the context of social violence and impunity that characterizes postwar Guatemala. Through an ethnographic exploration of alternative justice practices in the region of Santa Cruz del Quiché, it aims to contribute to discussions around the ‘anthropology of the state’. Specifically, the article describes some of the different phenomena or social forces that compete to exercise sovereignty in the region and reflects on what these reveal about the nature of the contemporary state in Guatemala.
This article uses an ethnographic description of a provincial public hearing in Sierra Leone to explore the paradoxical fact that in truth commissions, the truth is seldom told. It argues that the truth was not told for a variety of reasons, some of which are related to the special circumstances of the District, some to the problematic relationship of the Truth and Reconciliation Commission with the Special Court, some to organizational infirmities of the TRC itself, and some to the fact that public truth-telling lacks deep roots in the local cultures of Sierra Leone. By contrast, a staged ceremony of repentance and forgiveness on the final day struck resonant chords with the participants and succeeded in forging a reconciliatory moment. The implication, argues the article, is that in certain circumstances ritual may be more important to reconciliation than truth.
An eventual sustained democratic transition process in Zimbabwe may include a ‘truth and reconciliation’ commission. The need for—and possible form of—any such institution is situated in a number of discussions: the balance of principle and pragmatism that peace deals sometimes require; comparative experiences in other societies and the promise and limits of institutional modelling; the dynamic between global expectations or prescriptions and ground-level exigencies; the interface of international criminal law and institutions with national-level justice processes; the content of the State's international legal duty to afford a remedy. In considering the extent of an international normative framework limiting the justice options of transitional States, a certain margin of appreciation may be appropriate or necessary to enable a society to reconcile with its violent past on its own terms.
This Article re-conceptualizes the idea of transitional justice mechanisms as varying approaches meant solely to address the legacy of abuse in one nation, and proposes that transitional justice mechanisms can also encompass regional and transnational efforts to respond to mass human rights violations occurring across societies. This Article focuses on the challenges posed by trials and truth seeking mechanisms in conflicts where massive human rights violations have occurred across nations and argues that where these mechanisms have been established without regard to the regional or transnational nature of human rights violations, such mechanisms will encounter problems of coordination including legal primacy, information sharing, and access to detainees. This Article analyzes these critical issues by examining the transitional justice mechanisms in Liberia and Sierra Leone and highlights the challenges posed by the failure to take a regional approach. The Article proposes that adopting a regional approach when designing transitional justice mechanisms in the aftermath of mass atrocity across societies is the best means for achieving long-term peace, stability, and respect for human rights within the affected region.
em>The objective of this paper is to explore the initiatives and practices of different countries in truth seeking. Many countries during the post-conflict, colonial, slavery, anarchical and cultural genocide periods establish the Truth Commissions to respond to the past human wrongdoings: crimes and crimes against humanity. Enforced Disappearances (ED), killings, rapes and inhumane tortures are wrongdoings. Truth Commission applies the method of recovering silences from the victims for structured testimonies. The paper is prepared based on the victim-centric approach. The purpose reveals the piecemeal fact-findings to heal the past, reconcile the present and protect the future. The study covers more than 50 Commissions in a chronological order: beginning from Uganda in 1974 and concluding to Nepal in February 2015. Two Commissions in Uruguay were formed to find-out enforced disappearances. Colombian and Rwandan Commissions have established permanent bodies. The Liberian TRC threatened the government to submit its findings to the ICC if the government failed to establish an international tribunal. The Commissions of Bolivia, Ecuador, Haiti, former Yugoslavia and Zimbabwe were disbanded, and consequently, their reports could not be produced. No public hearings were conducted in Argentina and former Yugoslavia. It is noted that only 8 public hearings in Ghana, 8 national hearings in East-Timor and 15 in Brazil were conducted. Moroccan Commission held public hearings after signing the bond paper for not to disclose the names of the perpetrators whereas Guatemala did not include the perpetrators’ names in the report. The Shining Path’s activists are serving sentences based on civil-anti-terrorist court, but Alberto Fujimori is convicted for 25 years. Chadian Commission worked even against illicit narcotics trafficking. The UN established its Commissions in Sierra Leon, El Salvador and East-Timor, but failed to restore normalcy in Kosovo. Haiti prosecuted 50 perpetrators whereas Guatemala prosecuted its former military dictator. The Philippines’ Commission had limited investigation jurisdiction over army, but treated the insurgents differently. In El Salvador, the State security forces were responsible for 85 percent and the non-state actors for 15 percent similar to CIEDP, Nepal. The TRCs of Argentina, East-Timor, Guatemala, Morocco, Peru and South Africa partially succeeded. Large numbers of victims have failed to register the complaints fearing of possible actions. All perpetrators were controversially granted amnesty despite the TRC recommendation in South Africa. The victims and people still blamed Mandela that he sold out black people’s struggle. Ironically, the perpetrators have received justice, but the victims are further victimized. As perpetrator-centric Government prioritizes cronyism, most of the Commissioners defend their respective institution and individuals. Besides, perpetrators influence Governments on the formation of Truth Commission for ‘forgetting the victims to forgive the perpetrators’. A commission is a Court-liked judicial and non-judicial processes body, but without binding authority except Sierra Leone. Transitional Justice body exists with a five-pillar policy: truth, justice, healing, prosecution and reparation. It has a long neglected history owing to anarchical roles of the perpetrators and weak-poor nature of the victims. Almost all TRCs worked in low budget, lack of officials, inadequate laws and regulations, insufficient infrastructures and constraints of moral supports including Liberia, Paraguay, Philippines, South Africa, Uganda and Nepal. The perpetrators controlled Governments ordered to destroy documents, evidences and testimonies in their chain of command that could have proven guilty to them.</em
p> Enforced D isappearance (ED) is a crime against humanity. It has been a long, but neglected history. It is a denial of all access to the families, lawyers and the like. The families of ED persons recall the whereabouts the fate of their loved ones dawn to dusk. A total of 54 post-countries have experienced having Truth Commissions. Such Commissions identify, investigate and reveal the past wrongdoings hoping to resolve crises. Out of these, 15 Truth Commissions were or are formed focusing more on ED persons to provide justice to the families of the victims and to end impunity prosecuting the (alleged) perpetrators. Ironically, the (alleged) perpetrators have received justice, but families of victims are further victimized. The paper is prepared based on the victim-centric approach following the human security theories: Freedom to Perpetrator, Freedom of Perpetrator-Victim, and Freedom at Victim. The Freedom to Perpetrator includes Algeria, Colombia, East-Timor, El Salvador, Jambu-Kashmir, Pakistan, South Africa, Sri Lanka, Uganda and Uruguay; Freedom of Perpetrator-Victim comprises Argentina, Bolivia, Chile and Peru; and Freedom at Victim consists of Nepal. Besides, amnesty and reconciliation measures were studied to analyze the failed, moderated and successful Truth Commissions. Nepal’s disappearance Commission has neither amnesty nor reconciliation provision. </p
For over 60 years, lawyers and historians have discussed the credibility and repercussions of the Nuremberg Trial (1945–1946). The Nuremberg Trial at the International Military Tribunal was conducted by the four Allied Powers to try the upper echelon Nazi war criminals following the Second World War. The London Charter, drafted by the Allies, outlined the trial procedure to be adopted, and provided certain guarantees in an attempt to secure a fair trial for the 22 defendants. This article examines the history of fundamental due process rights (recognised in both Continental Europe and Common Law jurisdictions) and analyses the extent to which these rights were breached at Nuremberg. It argues that the defendants' procedural due process rights were partially protected at Nuremberg, although there were gross breaches of particular fundamental due process rights. This article further argues that despite the defendants being afforded more rights than they could have expected given the circumstances, such breaches significantly compromised the integrity of the trial.
Remaking Transitional Justice in the United States: The Rhetoric of the Greensboro Truth and Reconciliation Commission explores rhetorical attempts to authorize the Greensboro Truth and Reconciliation Commission-a grassroots, U.S.-based truth commission created in 2004 toredress past injustices in the city. Through detailed rhetorical analyses, the book demonstratesthat the development of the field of transitional justice has given rise to a transnational rhetorical tradition that provides those working in the field with series of "enabling constraints." The book then shows how Greensboro stakeholders attempted to reaccentuate this rhetorical tradition in their rhetorical performances to construct authority and bring about justice, even as the tradition shaped their discourse in ways that limited the scope of their responses. Calling attention to the rhetorical interdependence among practitioners of transitional justice, this study offers insights into the development of transitional justice in the United States and in grassroots contexts in other liberal democracies. The volume is a relevant guide to scholars and practitioners of transitional justice as it brings into relief mechanisms of transitional justice that are frequently overlooked-namely, rhetorical mechanisms. It also speaks to any readers who may be interested in the communicative strategies/tactics that may be employed by grassroots transitional justice initiatives. © Springer Science+Business Media New York 2013. All rights reserved.
After a period of mass atrocity committed at the hands of the State, societies are left trying to find a way to deal with what has taken place. Many States have attempted to utilise a form of the truth commission as an instrument of social learning and political change. Acknowledgement is central to this process. Such commissions in both Uganda and Chile were tempered with societal realities and met with varying degrees of success.
This chapter examines the unique contributions made by youth participants at the Truth and Reconciliation Commission (TRC) in the Solomon Islands. In doing so, it challenges the rigid victim/perpetrator binaries traditionally employed to describe young people’s participation in transitional justice. These identity descriptors become problematic when they fail to account for the realities of youth’s conflict experiences. This chapter argues that youth are political actors with the capacity to contribute to transitional justice in diverse and surprising ways. It suggests that understanding their interests and motivations, distinct from children, provides a more holistic and inclusive narrative of youth in transitional contexts. In the Solomon Islands, the inclusion of youth hearings at the TRC provided young people with a forum to construct their justice narrative, distinct from children. Yet, the Final Report’s chapter on children held steadfast to the rigid victim/perpetrator classifications. This chapter draws on the language used by different stakeholders at the TRC to highlight the complexities associated with creating a holistic narrative of youth participation. With this in mind, it examines the challenges associated with the emergence of competing conflict narratives, specifically, the stories told about youth and those by youth.
Few issues of transitional justice are as highly charged as those surrounding the relationship between forgiveness, amnesty and justice, particularly where human rights violations have occurred. This has especially been the case where truth and reconciliation commissions have been concerned. This chapter examines the place of forgiveness and amnesty in the transitional justice processes of the Solomon Islands. It argues that like other cases of transitional justice that have gone before it, the Solomon Islands finds itself engaged in a precarious balancing act between the often competing demands of inter-personal and societal forgiveness processes. It demonstrates, on the one hand, that the idea that societal reconciliation is not possible without state-level forgiveness in the form of amnesties remains pervasive among some members of the Solomon Islands community including, unsurprisingly, many ex-combatants who hope to benefit from proposed amnesty laws. Yet, on the other hand, it also argues that unlike some other TRCs that have gone before it, the Solomon Islands TRC marks a turn away from the sort of overt, state-sanctioned, institutionally led forgiveness practices that drew sustained criticism in previous cases (such as those of El Salvador and South Africa). In particular, the Solomon Islands TRC has set itself apart from the South African model on which it was based by explicitly opposing amnesties for ex-combatants and for arguing that without justice, forgiveness alone is unlikely to achieve reconciliation for the Solomon Islands.
The ‘Serious Crimes Process’ in Timor-Leste, consisting of Special Panels and a Serious Crimes Unit, was established in 2000. This hybrid court involves both national and international justice elements: the Special Panels have two international judges and one Timorese judge. The Timor-Leste process operates within the domestic judicial system of Timor-Leste. The Panels are ‘localized’: they are positioned in the country where the crimes were committed. This case also involves the parallel creation of two Truth Commissions.
Several initiatives to create a national Truth and Reconciliation Commission (TRC) for Bosnia and Herzegovina were launched between 1997 and 2006, but none came to fruition. This article explains the rationale behind the pursuit of a truth-telling mechanism alongside the International Criminal Tribunal for the former Yugoslavia (ICTY), as well as the resistance to such initiatives both internationally and domestically. It argues that, despite the considerable efforts of external actors to create a TRC for Bosnia, the project foundered for three principal reasons: political resistance, institutional rivalry between the ICTY and the TRC project, and the TRC project's lack of legitimacy, notably among Bosnia's victim associations. The history of the failed TRC project in Bosnia holds important lessons for ongoing truth-seeking attempts in the region and beyond, and highlights problems that arise in postconflict societies with a high level of international involvement.
The Tokyo International Military Tribunal (IMT) (1946-1948) is a neglected topic in the literature on post-war international criminal law. Condemned by its critics as 'Victors' Justice' and expediently forgotten by its erstwhile supporters, it is commonly thought by those who recall it at all that it was little more (and probably less) than a footnote to the International Military Tribunal at Nuremberg. This work seeks to dispel this widely held belief by showing the way the Tokyo Tribunal was both similar to and different from its Nuremberg counterpart, the extent to which the critiques of the Tokyo IMT have purchase, and the Tribunal's contemporary relevance. The book also shows how the Tokyo Tribunal needs to be approached not as a monolithic entity, but as being made up of many different and often contradictory parts. The prosecution, defence, and judicial arms of the tribunal both differed with each other on many points of procedure, law, and fact, but also differed inter se, and the book shows how these differences had an impact on the proceedings. It is a comprehensive legal analysis of the Tokyo IMT, covering its law, theory, and practice and the lessons it may teach those formulating, prosecuting, and defending international crimes today. It also places the trial in its political and historical context. The work is based in part on extensive archival research undertaken by the authors.
Advocates of the 'Nuremberg legacy' emphasize the positive impact of the individualization of responsibility and the establishment of an historical record through judicial procedures for 'war crimes'. This legacy has been cited in the context of the establishment and operation of the UN ad hoc International Criminal Tribunals in the 1990s, as well as for the International Criminal Court. The problem with this legacy, however, is that it is based solely on the experience of West Germany. Furthermore, the effect of the procedure on post-conflict society has not been empirically examined. This book does this by analyzing the Tokyo Trial, the other International Military Tribunal established after the Second World War, and its impact on post-war Japan. Madoka Futamura examines the short- and long-term impact of the International Military Tribunal for the Far East (the Tokyo Trial), on post-war Japan, in order to improve the understanding of and strategy for ongoing international war crimes tribunals. War Crimes Tribunals and Transitional Justice will be of much interest to students of war crimes, international law, transitional justice and international relations in general.
Kenya has been riddled with conflict and violence throughout its brief history as a nation. The 2007 post-election violence in Kenya, however, was of a different magnitude. In this paper, I perform an analysis of the conflict to examine why widespread violence erupted in the wake of Kibaki's presidential reelection. I look at the history of the conflict, examine stakeholders, and employ a variety of conflict analysis tools in an attempt to get to the root of the cause of the conflict.
In May 2012, Liechtenstein became the first State to ratify amendments to the Rome Statute of the International Criminal Court (ICC) that seek to activate the Court’s jurisdiction over the crime of aggression. The amendments, which were adopted by consensus at the ICC Review Conference that met in Kampala, Uganda, in 2010, establish definitions for “act of aggression” and “crime of aggression,” and provide the Court with jurisdiction even in the absence of a referral from the Security Council. At the same time, the States Parties decided that the ICC’s jurisdiction over this crime will not become operative until at least thirty States ratify the amendments and until there is a further decision by the States Parties sometime after January 1, 2017. Even then, the ICC’s jurisdiction will be limited over this crime: there are exceptions available for States Parties who wish to avoid exposure to the Court’s jurisdiction and the jurisdiction will not extend to States that are not Parties to the Rome Statute.Despite the progress at Kampala, considerable uncertainties and ambiguities exist concerning the process for activating the jurisdiction, the manner in which the jurisdiction operates once it is activated, its institutional effects on the Security Council and the ICC itself, and its long-term implications for the jus ad bellum. As such, those interested in the effective functioning of the ICC’s jurisdiction over the crime of aggression, and in the efficacy of international norms on the use of force generally, should not view Kampala as the final word on the crime of aggression, but as an opportunity to continue to grapple with the very real and very challenging issues that still remain.
Siegfried Groth, Namibia — The Wall of Silence. The Dark Days of the Liberation Struggle (David Philip, Cape Town; Peter Hammer Verlag, Wuppertal, 1995), 206 pp., N$/R78.00, ISBN 3–87294–708–8.
In the period after civil war or mass atrocity, trials and truth commissions have been used in a growing number of societies to try to bring about social repair and acknowledgement. Unfortunately, they often fail. The Haitian commission nationale de vérité et de justice sought to identify instigators, criminals, and accessories to the serious human rights violations and the crimes against humanity that had been carried out during the coup d'état, from September 29, 1991 to October 15, 1994, both inside and outside of the country. However, the Commission was beset by a number of problems that resulted in its ultimate failure to achieve goals including acknowledgement and reconciliation. This article considers those failures, and the lessons that can be learned from its experiences.
1This article examines the contributions to transitional justice made by the National Commission on the Disappearance of Persons
(CONADEP) in Argentina; a commission established in December 1983 by then constitutional president, Raúl Alfonsín, to investigate
the fate of the disappeared. In particular, the article analyzes how CONADEP's inquiry simultaneously served the functions
of creating a new public truth about the crimes – which were based on secrecy, the destruction of evidence and concealment
by the state – and of collecting essential legal evidence necessary for the prosecution of perpetrators. Finally, it explains
the success of the inquiry, which was a result of the combined efforts of Alfonsín's democratic administration and the Argentinian
human rights movement.
This article is published by invitation in a special symposium issue of the John Marshall Law Review entitled “International Law in the 21st Century: The Law and Politics of the International Criminal Court.” The article compares the International Military Tribunal (also known as the Nuremberg Tribunal) with the International Military Tribunal for the Far East (also known as the Tokyo Tribunal), the two ad hoc international war crimes tribunals the Allies established after World War II to prosecute suspected atrocity perpetrators from Nazi Germany and Imperial Japan, respectively. The article examines these two tribunals’ similarities and differences, especially as they relate to the tribunals’ designs, staffs, and operations. The article concludes by suggesting that future research should consider whether and, if so, how similarities and differences between the Nuremberg and Tokyo tribunals affected their results, including their durations and judgments.