Transitional Justice

Amnistia i responsabilitat civil

by Daniel Vallès

Should the UN promote International Order or Individual Justice?

by Jonny McCormick

Essay

Amnesties with Shelf Lives? Problematizing the Use of Amnesties in Transitional Justice

by Mark Kersten

MSc International Relations Dissertation and paper presented at ISA 2011 in Montreal

Abstract
Have we seen the end of amnesties? Do amnesties eventually expire, resulting in statesconfronting their... more Abstract
Have we seen the end of amnesties? Do amnesties eventually expire, resulting in statesconfronting their pasts? Despite an increased expectation that past atrocities should be prosecutedthrough human rights trials, states continue to grant amnesties for human rights violations and pastamnesties often remain in place. Nevertheless, the practice of granting amnesties been exposed tonumerous challenges in recent years. This paper explores two cases, those of Spain and Argentina,where amnesties were issued but the past was nonetheless revisited. How can we explain this phenomenon? The paper argues that these developments are not the result of an international normregarding a duty to prosecute. State practice suggests that such a norm is far from crystalized.Revisiting the past, the paper argues, is better explained by the context-specific dynamics within statesemerging from violent political conflict and authoritarianism. States are more likely to confront their past when their fear that doing so will result in a return to violence and instability dissipates. They mayalso be more likely to demand a confrontation with the past, not through prosecution, but through adesire to know the truth and in demanding a 'right to truth'. This poses a serious quandary for Transitional Justice researchers concerning the sustainability of amnesties: states may continue to grantamnesties but eventually seek to confront their past. Only a highly contextualized approach to cases of transitional justice which looks beyond legalistic reasoning can understand the decisions and dilemmasinvolved in confronting the past.

A Fatal Attraction? The UN Security Council and the Relationship between R2P and the International Criminal Court

by Mark Kersten

Transitional Justice in Cambodia: The Coincidence of Power and Principle

by Kirsten Ainley

For publication in Renee Jeffery ed. Transitional Justice in the Asia-Pacific (under review).

More than thirty years after the Khmer Rouge was responsible for the deaths of over one and a half million people, and... more More than thirty years after the Khmer Rouge was responsible for the deaths of over one and a half million people, and after two amnesties for Khmer Rouge crimes were enacted in Cambodia, the Extraordinary Chambers in the Courts of Cambodia (ECCC) has been established, ostensibly to help heal the trauma of victims of Khmer Rouge atrocities and bring about justice. This chapter outlines the key features of the ECCC and assesses its successes and failures according to its own mandate. It goes on, however, to argue that accepting the restricted mandate of the court is a mistake, as it prevents a full discussion of accountability in Cambodia. I argue that the establishment of the ECCC represents less a victory for victims or for advocates of transitional justice than it is a reflection of the interests of the Cambodian government and those international actors who collaborated with a series of repressive regimes in Cambodia, including the current Hun Sen regime. By agreeing to a limited regime of transitional justice, the government has diverted diplomatic and donor attention away from allegations of corruption and human rights abuses in the present, towards its role as ‘saviour of the nation’ in the past. The international community is keen (now) to promote justice in Cambodia, and has significant resources available with which to incentivise or coerce domestic actors to allow a fair and independent court, but seems unwilling to use them. Unfortunately, international principle has coincided with domestic power in a way that does little for the victims of atrocities in whose name the ECCC was established.

Excesses of Responsibility: the Limits of Law and the Possibilities of politics.

by Kirsten Ainley

Published in: Ethics and International Affairs, 2011 25 (4) pp 407-431

Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given... more Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given effective jurisdiction over it. This article argues that the move to individual responsibility leaves significant ‘excesses’ of responsibility for war crimes unaccounted for. When courts do attempt to recognize the collective nature of war crime perpetration, through the doctrines of ‘command responsibility’, ‘joint criminal enterprise’ and ‘state responsibility’, the application of these doctrines has, it is argued, limited or perverse effects. The article suggests that instead of expecting courts to allocate excesses of responsibility, other accountability mechanisms should be used alongside trials to allocate political (rather than legal) responsibility for atrocity. The mechanisms favored here are ‘Responsibility and Truth Commissions’, i.e. well-resourced non-judicial commissions which are mandated to hold to account individual and collective actors rather than simply to provide an account of past violence.

Equality and the Rule of Law in Classical Athens

by Paul Gowder

In this paper, I defend three claims.

First, contra some classicists and legal historians, classical... more In this paper, I defend three claims.

First, contra some classicists and legal historians, classical Athens during the democratic period substantially satisfied the demands of the rule of law (excepting its treatment of women, noncitizens, and slaves). I show that arguments to the contrary mostly represent an unduly narrow conception of what might count as law in Athens, one that inappropriately excludes common-knowledge social customs.

Second, Athenians saw the rule of law as serving the equality of mass and elite, oligarchs and democrats: there was no contradiction (again contra some classicists) between the democratic power of the masses and the rule of law. This equality consisted in two topoi frequently deployed in the Athenian legal and social discourse. First is the respect topos, according to which the laws represent respect for the democratic polis. To disregard them is to reveal one's lack of respect for the polis and one’s oligarchic character. Second is the strength topos, according to which the laws are the way that the democratic polis exercises its power: weak members of the masses cannot stand up to strong members of the elite alone, they need the backing of the whole community, and that backing is coordinated through the law; to undermine the law is thereby to undermine the political power of the masses.

Third, this connection between equality and the rule of law explains the most striking fact about Athenian legality, to wit, the otherwise puzzling effectiveness of the amnesty enacted for crimes committed under the Thirty Tyrants. The strength topos explains why the democrats in Athens refrained from avenging themselves against the Thirty despite their opportunity to do so: by doing so, they would have undermined the law, and thereby their own equality. The strength topos led the Athenians to take the internal point of view on the law.

The account of the rule of law deployed in this paper is that developed in my Equality Under the (Rule of) Law, also available here. This paper serves the function, in part, of demonstrating the cross-cultural applicability of the conception of the rule of law developed in that paper.

Tesina 2012 - Abstract, summary, index of authorities

by Margherita Melillo

Constructions of Legitimacy, the Charles Taylor Trial

by Tim Meijers

Truth and Justice When Fear and Repression Remain: An Open Letter to Dr Kanit Na Nakorn

by Tyrell Haberkorn

Published in _Bangkok May 2010: Perspectives on a Divided Thailand_. Edited by Michael J. Montesano, Pavin Chachavalpongpun, and Aekapol Chongvilaivan. Singapore: ISEAS, 2011. Pages 42-54.

i cannot accept what I have not done

by Beth W. Stewart

Co-authored with Dr. Erin Baines, published in the Journal of Human Rights Practice

Storytelling can be a process of seeking social equilibrium after violence. We examine this proposition through the... more Storytelling can be a process of seeking social equilibrium after violence. We examine this proposition through the stories of Ajok, an Acholi woman who was abducted by the rebel group, the Lord’s Resistance Army (LRA) in northern Uganda and who was forced into marriage and motherhood. We consider how her stories contest discrimination by her neighbours and family since her return, creatively reinterpreting the past to defend her innocence and moral character throughout the war and to defend her rightful place in present society as an Acholi woman and mother. The article concludes by reflecting on the value of locally based and culturally relevant storytelling for survivors in the field and practice of transitional justice.

Young Argentine Filmmakers: Remembering the Past from a Present of Crisis

by Ana Ros

In David Gallagher (ed.) Latin American Studies: Critiques of Contemporary Cinema, Literatures, Politics and Revolution. Palo Alto: Academica Press, 2011.

In this essay, I reflect on how young filmmakers intervene in the formation of collective memory about the last... more In this essay, I reflect on how young filmmakers intervene in the formation of collective memory about the last Argentine dictatorship (1976-1983), contributing to the renewed societal interest on the subject. The two films I analyze share a concern with creating a more instructive and inclusive collective memory by encouraging different groups to learn from the past to inform decisions in the present. In an experimental documentary, Diario argentino/Argentine Diary (2007), Lupe Pérez García focuses on the so-called “bystanders”—those who were neither activists nor represores. She challenges their typical image as passive spectators in a war between “two demons” and highlights their role as political actors in the past and the present. Secondly, in the feature film Cordero de Dios/Lamb of God (2008), Lucía Cedrón, herself daughter of a “disappeared” activist, proposes a way of taking the past as a guide for acting in present situations of hate and violence. The 2001 crisis plays an important role in these two films and in the directors' lives. The uncertainty impels them to understand their choices in relation to their interpretation of the past and to own the decisions they make and their (political/human) implications.

'If There's No Justice…': Trauma and identity in post-dictatorship Argentina

by Diego Benegas Loyo

With or Without Peace: DDR in Northern Uganda

by Letha Victor

Justice and Reconciliation Project and Quaker Peace and Social Witness, Footnote VI, February 2008.

Co-authored with Julian Hopwood, Chessa Osburn, and Erin Baines.

-
From July to October 2007, Quaker Peace and Social Witness (QPSW) and the Justice and Reconciliation Project... more -
From July to October 2007, Quaker Peace and Social Witness (QPSW) and the Justice and Reconciliation Project (JRP) conducted qualitative research with ex-LRA fighters on the subject of peer support and reintegration in northern Uganda. These in-depth discussions revealed a number of pressing insights on how to conduct a peaceful and successful DDR process.

Kill Every Living Thing: The Barlonyo Massacre

by Letha Victor

Justice and Reconciliation Project, Footnote IX, February 2009

Co-researched and co-authored with Boniface Ojok, Ketty Anyeko, Emon Komakech, Geoffrey Odong, Geoffrey Opobo, Evelyne Akullo, and Erin Baines, with the assistance of Lino Owor Ogora and Kyle McCleery.

-

Twenty-six  kilometres  north  of  Lira  town  in  northern... more -

Twenty-six  kilometres  north  of  Lira  town  in  northern Uganda,  a  quiet  displaced  person’s  camp  called Barlonyo lies inconspicuously next to the River Moroto. The tranquil setting belies its horrible distinction as the location of one of the largest single massacres committed by the Lord’s Resistance Army during its 23-year insurgency. In the space of less than three hours on the late afternoon of 21 February 2004, over 300 people were brutally murdered by LRA rebels and an unknown number were abducted.
Camp residents were burned alive inside their huts, hacked to death with machetes, stabbed with bayonets, clubbed with sticks and shot as they fled. The bellies of pregnant women were slit open, their not-yet-formed babies thrown into the fires. Others were abducted and marched north into Acholi-land. Many died in captivity of violence, sickness, or starvation.  The ultimate fate of several abductees remains unknown.
This Field Note documents what happened in Barlonyo on that fateful day when LRA Commander Okot
Odhiambo ordered his soldiers to “kill every living thing.” The victims of Barlonyo beg for justice; not only for the unimaginable acts of the LRA, but the lack of protection afforded the civilian population that day, and in the absence of acknowledgment of what happened there. The Government of Uganda must forward a comprehensive justice strategy that addresses wrong doing and heals the wounds that continue to divide the country.

Abomination: Local Belief Systems and International Justice

by Letha Victor

Justice and Reconciliation Project, Footnote V, September 2007

With assistance from Erin Baines.

-

Local contexts must begin to better inform Western-based approaches to transitional justice; without... more -

Local contexts must begin to better inform Western-based approaches to transitional justice; without them, external interventions often fail to resonate with the values, norms and beliefs of victims. To illustrate this point, this edition of Field Notes focuses on the Acholi concept of kiir, or abomination. Kiir is a transgression of the moral order which is believed to cause serious misfortune, including disease, spiritual haunting and death. Not only has the conflict in northern Uganda created the conditions that have allowed these transgressions to occur; the conflict has also been called an abomination in and of itself. A curse on the people of Acholi and consequent mass displacement are thought to have multiplied acts of abomination as well as reduced the capacity to deal with them: a cleansing ceremony must be performed in order to rectify the impact of kiir.

This Field Note attempts to bring the reader closer to an understanding of local belief systems. Gaining insight into these beliefs can aid international justice systems to better reflect the lived realities of the victim population.

Death does not rot: women of the Lord's Resistance Army

by Letha Victor

MA Thesis, Department of Anthropology, McGill University, 2011

-

From 1986 to 2006, northern Uganda was the site of a violent conflict between the Lord's Resistance Army... more -

From 1986 to 2006, northern Uganda was the site of a violent conflict between the Lord's Resistance Army (LRA) and the Government of Uganda. Based on ethnographic fieldwork conducted in the Acholi sub-region in 2009, this thesis examines the narratives of young women who were abducted by the LRA, forced to serve multiple roles in "the bush," and have since returned to civilian life. I explore the supernatural dimensions of the conflict and contend that women were agents of their own survival because they learned to manipulate their physical and cosmological circumstances, both during and after their captivity. At the margins of transitional justice debates, women negotiate their own memories within an intricate web of religiosity. Though forced into marriage, motherhood, and soldiering, only to come home to lives marked by stigma, patriarchy, and poverty, ex-LRA women are complex persons who defy the tropes of "sex slave" and "child soldier."

-

De 1986 à 2006, le nord de l'Ouganda a été le site d'un conflit violent entre la «Lord's Resistance Army» (LRA) et le Gouvernement de l'Ouganda. Basée sur une recherche ethnographique menée dans la sous-région d'Acholi en 2009, cette mémoire de thèse examine les récits de jeunes femmes qui ont été enlevés par la LRA, forcés de servir de multiples rôles dans «la brousse», et ont depuis réintégré la vie civile. J'explore les dimensions surnaturelles du conflit et je soutiens que les femmes étaient des agents de leur propre survie, car elles ont appris à manipuler leurs conditions physiques et cosmologiques, à la fois pendant et après leur captivité. En marge des débats de la justice transitionnelle, les femmes négocient leurs propres souvenirs au sein d'un réseau complexe de la religiosité. Bien forcées de se marier, de devenir mères, et d'être des soldats; rentrées à des vies marquées par la stigmatisation, le patriarcat, et la pauvreté, elles sont quand même des personnes complexes qui défient les tropes «d'esclave sexuelle» et «d'enfant soldat».

‘The Cooling of Hearts’: Community Truth-Telling in Northern Uganda

by Letha Victor

Co-authored with Ketty Anyeko, Erin Baines, Emon Komakech, Boniface Ojok, and Lino Owor Ogora.

Human Rights Review, Volume 13, Number 1, 107-124.

-

Recent national and international debates on truth and reconciliation in Uganda have emphasized the... more -

Recent national and international debates on truth and reconciliation in Uganda have emphasized the importance of incorporating local-level mechanisms into a national transitional justice strategy. The Juba Peace Talks represented an opportunity to develop and articulate sufficient and just alternatives and complementary mechanisms to the international criminal model. The most commonly debated mechanism is the Acholi process known as mato oput (drinking the bitter root), a restorative justice approach to murder. Drawing on 2 months of research in nine internally displaced persons’ camps in 2007, we examine local justice practices in the region of northern Uganda to consider their potential, promise and pitfalls to realizing a successful truth-telling process. We find that although local mechanisms could help facilitate reconciliation in the region, truth-telling is but one part of a conciliatory process complicated by a national context of fear and the complexity of the victim–perpetrator identity at the community level. These locally informed insights help move forward the debate on such mechanisms in Uganda and add useful insights into community processes in the field of transitional justice more generally.

Reparations of Victims of Armed Conflict in Colombia (with Angelika Rettberg)

by Juan Diego Prieto

The reparation of victims of armed conflicts ranks high on the list of peacebuilding priorities. Reparations are... more The reparation of victims of armed conflicts ranks high on the list of peacebuilding priorities. Reparations are considered not only just, but also a necessary antidote for future violence. However, as in other domains of the peacebuilding activity and literature, we have little empirical evidence about what the actual victims want and need. In addition, we know little about how social proximity among victims and perpetrators, as is frequent in Colombia, affects what victims feel and need in terms of reparations. In this paper we present data from a survey of Colombian victims designed to find out about victims’ needs and expectations in terms of reparation. In addition, we present findings of a more specific study on how social proximity among victims and perpetrators affects these expectations. From a conceptual point of view, the findings provide better understanding of the complex predicaments faced by victims of armed conflicts. In addition, they help us understand how differences in social proximity among domestic armed conflicts may be linked to differences among victims in terms of what they need and expect in terms of reparation. From a practical perspective, findings provide input for policymakers to design violence prevention schemes in Colombian communities.

Local Coexistence among Victims, Ex-combatants, and Communities: Challenges for Social Reconstruction in Colombia

by Juan Diego Prieto

Working Paper (please do not cite without permission)

In recent years, despite the persistence of a 47-year old internal armed conflict, Colombia has been undergoing a... more In recent years, despite the persistence of a 47-year old internal armed conflict, Colombia has been undergoing a massive disarmament, demobilization, and reintegration process accompanied by various transitional justice measures. As a result, war victims and demobilized combatants have become key political actors, particularly as many of them have become residents of the same communities. Talk of reconciliation in media and in everyday political conversations has grown common, but very little is known about the local interactions between victims and ex-combatants, and between them and their surrounding communities. This paper presents the findings of a field research study carried out in four neighborhoods of the Colombian cities of Bogotá, Medellín, and Valledupar between August and December 2010, which sought to provide some insights for understanding the complexities of local social reconstruction and the challenges that they pose for present and future peacebuilding and transitional processes in Colombia. It argues that the conventional wisdom that has guided some previous policy interventions, advocacy efforts, and conceptual approaches has focused too much on the normative principles of transitional justice and on preconceptions about reconciliation and forgiveness and not enough on the shared challenges that mediate the everyday contact and relationships that take place among victims, ex-combatants, and other residents of their communities, especially insecurity and economic precariousness.