International Justice

CJ354 Endicott College

Tag Archives: transitional justice

Transitional Justice in Thailand

Resurgence of an indigeneous, ethno-nationalist conflict continues to plagues Yala, Narathiwat, and Pattani – Southern border provinces of Thailand – for the last decade. This conflict, dating back to early 1900’s, resumed in 2004 when when both sides of the conflict – the Thai government and the Barisan Revolusi National (BRN) – committed bomb attacks, assassinations, revenge killings, and other acts of violence which have claimed the lives of nearly 6,000 people and wounded over 9,500 people. This violence is the product of an unresolved Malay-Muslim grievance with the Thai state. The article lists several central grievances: national political leaders’ failure to acknowledge and respect the unique cultural identity of the local community; systematic discrimination; political marginalization; and a record of human rights abuses by government authorities, for which few of those responsible have been held accountable. This top down discriminatory approach is also responsible for constraints on access to justice reflected in limited legal representation, obstacles in the criminal justice chain, lengthy pre-trial and arbitrary detention under the emergency powers laws, and lack of accountability on both sides of the conflict with respect to violence and abuse of power. Amidst this violence, the Thai Government and BRN announced their agreement to engage in peaceful dialogue; however, this article questions the possibility of transitional justice bringing peace to Thailand. Apparently, Thailand lacks the three historically necessary conditions for transitional justice to succeed: a strong political will to resolve the conflict; policies that limit new grievance; and a negotiable agreement. While other states in Southeast Asia (including Philippines (Bangsamoro), Indonesia (Aceh), Nepal, and Timor-Leste) have benefited from transitional justice, perhaps Thailand – given the nature of the ongoing conflict – is not yet ready for reconciliation.

Ukrainian Crisis Escalates

According to recent developments on the Ukrainian crisis, Rebel Russian groups are beginning to encircle Ukraine troops in the strategic railway junction of Debaltseve. This offensive push from the rebel groups is a further warning sign that the September ceasefire is breaking down, and that the ceasefire merely acted as a tool for both sides to rearm. At this point the violence has taken its toll on the population of Ukraine with 5,358 people killed, 12,235 wounded, and 921,640 people internally displaced. With Russia violating virtually “every commitment of the peace deal” in the words of President Obama, the next question is what should the international community do next? This conflict raises issues of transitional justice and whether or not the international community steps in after the wreckage and the dust settle, or before the violence ends. This is when we ask what exactly is transitional justice, and when it comes into play. The Ukraine crisis could be an interesting example of “proactive” transitional justice—if major international powers choose to intercede earlier rather than later in delivering justice.

Mbeki and Mamdani Argue for Peace Over Justice

Earlier this month the New York times published an op-ed entitled “Courts Can’t End Civil Wars.” The article’s authors, Thabo Mbeki and Mahmood Mamdani, both have deeply rooted histories in situations of conflict in Africa.  They argue that today’s approach to situations of international conflict is flawed and misguided– that the conversation we’re having about international justice is broken.  Rather than focusing on “the inadequacy of court trials as a response to politically driven mass violence,” the international community has focused on how to make the court most effective.  Mbeki and Mamdani, however, feel the very fact of using a court as the solution to violence and strife, is inevitably going to be ineffecive.  You cannot use legal solutions to fix political problems, they argue.

Mbeki and Mamdani’s argument has a second dimension.  In finding a solution to situations of conflict, one should not seek “victims’ justice,” or justice centered around victims’ needs and desires, but rather peace as justice.  Because in these conflicts no party is totally innocent, all parties must be incorporated into the future political system, and into a better society.  The focus of transitional justice should be on the best way to include all into a new, fair order. The most effective way to do this, they claim, is by avoiding placing absolute blame, as takes place in a criminal trial, and rather “to think deeply about human wrongs… (and) wrestle with the problems that give rise to acts of extreme violence,” in order to permanently break a cycle of atrocity.  Essentially, Mbeki and Mamdani place themselves on the “peace” side of the Peace vs. Justice debate.

What Mbeki and Mamdani advocate  seems somewhat idealistic, but they make an important point. The nature of transitional justice has changed.  Originally, with the Nuremberg trials, transitional justice referred to the process of transition after the end of conflict, and as a way of healing a broken situation.  Now, with the presence of the ICC, criminal prosecutions are used not only after violence has ceased, but also as a method for ending said violence– the ICC essentially forces the “transition” aspect of transitional justice.  Prosecutions of past crimes versus prosecutions as a means of ending crimes, are two very different processes, and, as Mbeki and Mamdani point out, need to be treated as such.

The Trial of Hebert Veloza Garcia, a test of Transitional Justice in Colombia


In 2005 the Colombian Congress led by then president Álvaro Uribe Vélez passed Law 975, the Justice and Peace Law. Law 975 offered paramilitary leaders and soldiers who were not included in previous attempts to demobilize extra-legal armed forces reduced sentences if they told the truth about their crimes, paid reparations to the victims, and promised not to return to a life of crime. Currently in Colombia under Law 975 paramilitary troops that opt to demobilize and qualify receive reduced prison sentences of 5-8 years. Article 29 of the law states that the severity of the prison sentence will be based off of the “gravity of the crime and the effective co-operation provided in the clarification of the same.” Previously laws to encourage the demobilization of extra-legal armed forces had not included amnesties for those whom had committed human rights abuses as the Inter-American Commission on Human Rights, a part of the Organization of American States (OAS), does not recognize amnesty for those who commit crimes against humanity, war crimes, and/or human rights violations.

On October 30th, 2013 Hebert Veloza Garcia, a paramilitary commander of the AUC, was convicted of 85 crimes including cases of torture, forced disappearance, and 105 homicides. Under Law 975, in exchange for his truthful confession, he received a prison sentence of seven years and a fine of approximately 5.2 million dollars. Garcia is currently serving time in the United States on drug charges and will serve the seven years on his return. Veloza’s trial and subsequent sentencing was considered a victory for transitional justice in Colombia.

Sikkink argues that because people have such strong ideas about justice victims are always disappointed and disillusioned by the results of trials, but all I can see is a man who committed over 85 separate crimes including torture, forced disappearances, the forcible recruitment of children, and homicide only serving seven years in prison.

Veloza was found guilty of importing to and selling cocaine in the United States in excess of five kilograms. In the U.S. this carries a minimum sentence of ten years in prison to a maximum of life in prison. For ordering and taking part in massacres and acts of torture. Veloza received seven years in prison. The correct way in which to enact transitional justice is a topic few agree on, but can and should amnesty be a true part of transitional justice?

Comments on this post have suggested that the reason for this short sentence is that Colombia is seeking not punishment but the fixing of broken relationships and a restoration of harmony. This case and the comments on my original post bring up a very important debate in the field of transitional justice: restorative versus retributive justice. The South African Truth Commission is the most publicized example of a purely restorative mode of justice, and though it has many critics, it is considered a success story. But what readers need to understand is that the situation of the county needs to be taken into account when deciding the correct form of justice to implement. Colombia has been in a low-intensity civil war for the last 50 years and because of this, and other factors, the lines between illegal and legal armed actors and those in positions of political power have blurred on more than one occasion. The government does not have the infrastructure in place or the authority to carry out a process like the South African Truth Commission. There are arguments for both a retributive and a restorative form of justice for the country, but after so much time I feel that the country needs to focus more on retributive justice with features of restorative justice in order to reassert the government’s authority.


Distinct Norms In Transitional Justice

American Exceptionalism

Is there a stronger argument in favor of the distinctiveness of moral and ethical norms as opposed to legal norms? How do moral norms come to be legal norms?

The transitional justice debates are complicated in that domestic criminal systems have long assumed that if someone murders or commits a felony along those lines, they should be prosecuted and put to prison, but unless one is a state official, that norm didn’t apply. How does this moral norm slowly translating to a(n international) legal norm justify what was once an exception? How does the strength of criminal accountability shift as leaders take on more power? Individuals capable of violating human rights are powerful security forces in military, and very often these folks benefit greatly from repression. They then go on to repress others to take on more political power, they punish their political opponents, and they gain economic wealth. It is when the costs get higher with prosecution that it diminishes violations. This is an interesting interaction between domestic legal norms and international moral norms translated to international legal norms.

Powerful nations set as an exception to the global trend of prosecutions, but are powerful nations like the U.S. affected by the justice cascade? When I think about the Civil Rights Movement, I wonder how it is decided to pardon so many who have abused, violated, and even killed African Americans at the time. The justice cascade provides accounts of specific human rights prosecutions by singling out Africa, Latin America and Europe, but this could be quite corrosive. Perhaps more should underpin the justice cascade in the U.S. (and Asia) too.



Possible Constitutional Reform in Colombia may endanger justice

UN independent experts urge Colombia to reconsider proposed criminal law for military

Amidst peace negotiations that could outline the future of transitional justice in Colombia, a new constitutional reform could pose grave danger to fairness and accountability in what concerns those crimes committed by members of the government.

The proposal entails giving military courts jurisdiction over human rights violations perpetrated by the military, jurisdiction that should belong to regular criminal courts. It would create “a Penal Guarantees Court to deal exclusively with accusations against members of the military or police forces of the Fuerza Pública.” Many activists and human rights monitors argue that this would create preferential treatment for members of the military, creating an atmosphere of impunity.

11 independent human rights activists and experts wrote an open letter to the Colombian government warning it of the dangers of such a proposal, calling it a “historic setback….in the fight against impunity…”. The United Nations human rights office also called on the Colombian government to reconsider such a reform.

The (Semi?) Success of Sierra Leone

Sierra Leone, a country formerly ravaged by faction and a slumping economy, recently held a presidential election. The Economist published a piece describing the significance of this latest election, which resulted in incumbent Ernest Bai Koroma accreting 58.7% of the vote, clearing the 55% needed to win outright. The election proceeded without much of the internal violence predicted by the international community, and Koroma has now been democratically installed at the helm of a country that is beginning to show real signs of progress.

More importantly, the peaceful election speaks to the relative success of Sierra Leone’s two transitional justice mechanisms: a truth commission (Sierra Leone’s TRC) and the Special Court for Sierra Leone (SCSL), the latter of which was created to try those most responsible for the crimes committed during the country’s devastating civil war between 1991 and 2002. Perhaps the most important decision handed down in that court was one already discussed on this blog – the 50-year sentencing of former Liberian president Charles Taylor.

The article linked to makes a good point, however, in noting that Koroma “deserved to beat Julius Maada Bio, a former junta leader. However, the APC [Koroma’s party] is still the same party that in 1978 converted Sierra Leone into a one party state. The election campaign suggested that its autocratic streak has not been entirely banished.” This dichotomy is reminiscent of many of our readings on state-run transitional justice mechanisms, such as their role in perpetuating certain political parties or narratives. In Koroma’s victory, one can see both the blossoming of peaceful democracy and the slippery slope from a one-state system to the first omens of dictatorships and oppressive, unilateral regimes.

Examples like Sierra Leone are our first empirical look at how what we term “transitional justice” – a still-developing idea, to be sure – influences not only the process of reconcilation, prosecution, and reform, but also how it fundamentally alters, for better or worse, the political trajectory of a nation. Thoughts? Is Sierra Leone’s progress a strong case for truth commissions and UN special courts? Should their model be adopted further? Is Koroma’s re-election an indicator of genuine democracy, or is it merely the beginning of another African leader who refuses to cede power?

Victim Participation in the Justice Process

For the past several weeks we have been exploring several components of transitional justice outside of the realm of trials and retributive justice, including truth commissions and various forms of local justice. Many of these modes of justice are largely victim-centered and are focused on the healing and recovery of individuals and communities who have been exposed to mass violence.

In the most recent unit’s assigned reading, Luc Huyse says in his “Introduction: tradition-based approaches in peacemaking, transitional justice, and reconciliation policies” that in the past decade there has been a “move from a de facto dichotomy (impunity or trials) to multiple conceptions of justice and reconciliation- state and non-state instruments; legal, semi-judicial, and non-judicial techniques”. Within all of these techniques, where is the best place for dealing with victims and providing the most healing towards the victims?

Chris Tenove recently wrote a post on Justice in Conflict, where he outlines several different approaches to victim participation including: treating victims as legal clients, treating victims as secondary to criminal trial, and the transitional justice approach.

I personally think that ICC trials and the vast majority of trials in general tend to be inherently political and the interests of the prosecutor don’t always align with the interests of the victim. I think that having a separate forum for victim participation is more beneficial to the interests of victims. I think that the ICC could successfully administer a restorative forum for victims separate from the trial, but I also believe there are other mediums that could prove equally, if not more, successful. I am most apprehensive about state-administered approaches such as the gacaca courts in Rwanda, but I think that there are other forms of more local justice that can be successful. I’d be interested to hear more thoughts on what other people think is the best forum(s) for victim participation in the transitional justice process.

Art’s Place in Transitional Justice

Death and the Maiden is a play written by Chilean author Ariel Dorfman in 1991, after he returned to the newly-democratic Chile from exile, with the country in an uneasy transition and Pinochet still in command of the armed forces. The Rettig Commission was carrying out its work, and Dorfman felt the need to break the self-censoring silence that still remained in everyday life, of victims and perpetrators living side-by-side, coexisting, and, he says, “never acknowledging the pain and the guilt, not to themselves, not to anybody.”

The play itself is provocative, moving, and extremely relevant to our class, but it and Dorfman’s explanations of its necessity in transitory Chilean society raise an issue that we haven’t discussed much: the role of art in transitional justice. Art, especially in the case of Death and the Maiden, addresses the plight of the individual, of the victim and the perpetrator as humans, and of the relationships that compose society and everyday life after a such a massive break in the social fabric as an authoritarian regime or mass atrocity.

I think that we’ve been hinting at the more individualized and psychological requirements of transitional justice on this blog, in the class, and in some of the readings, and the role of art gives us a new way to discuss them. Dorfman makes the case for raising art above the therapeutic role that it is typically assigned, and giving it an integral place in reconciliation. With all of the focus we have put on the truth, it is important to remember that before the truth can emerge, there has to be a way of breaking through silence.

In his afterward to Death and the Maiden, Dorfman explains his motivations behind writing the play, giving the reader insight into his personal experiences during the transition, and asking many of the questions with which transitional justice is forced to struggle. I’ve included a break with one of these passages: Read more of this post

Victoire Ingabire Gets Sentenced Under Rwanda’s Genocide Ideology Law

The BBC reported today that Victoire Ingabire has been sentenced to eight years in jail by the Rwandan court system. Ingabire was jailed in 2010 when she returned to Rwanda from exile to run against President Paul Kagame in the 2010 elections, which were undemocratic to say the least. Among other charges, like “threatening state security” and “terrorism,” the latter of which were dropped, she was charged with “belittling the genocide.” This last charge, which was filed under the genocide ideology law, seems quite problematic.

In her speech, Ingabire stated her belief that the reconciliation of and emotional recovery of all Rwandans is necessary. She also stated that she does not believe there is a policy in place to allow for this, because Hutu deaths are not being memorialized, when there were, in fact, many Hutus who were killed as well. Her statements were illegal under the genocide ideology laws, so she was arrested. Some believe that this was highly politically motivated, as she was one of the primary opposition leaders who wanted to run against Paul Kagame in the 2010 elections.

It is laws and policies like these that make reconciliation difficult. Also, it is my understanding that, since the genocide, it has been deemed illegal to ask someone if he or she is a Hutu or a Tutsi. The argument is that this will unify Rwandans. Instead of being Hutus or Tutsis, they are Rwandans. I believe that these methods of ignoring the necessity for ethnic sensitivity in reconciliation policies could end up hurting Rwandans more than helping.

Here is what I believe to be the controversial part of her speech:

“But then again, if you look around you realize that there is no real political policy to help Rwandans achieve reconciliation. For example, if we look at this memorial, it only stops at people who died during the Tutsi genocide. It does not look at the other side – at the Hutus who died during the genocide. Hutus who lost their people are also sad and they think about their lost ones and wonder, ‘When will our dead ones be remembered?’

“For us to reach reconciliation, we need to empathize with everyone’s sadness. It is necessary that for the Tutsis who were killed, those Hutus who killed them understand that they need to be punished for it. It is also necessary that for the Hutus who were killed, those people who killed them understand that they need to be punished for it too. Furthermore, it is important that all of us, Rwandans from different ethnic groups, understand that we need to unite, respect each other and build our country in peace.”

The Emergence of Justice Norms

An interesting article from the Guardian reports that Winston Churchill favoured executions and life imprisonment without trial for Nazi leaders. These revelations come from this week’s declassification of the diary of Guy Liddell, who was the head of counter-espionage at MI5 (so a pretty reliable source). Churchill’s position was opposed by before Stalin, who wanted to use trials as propaganda, and Roosevelt, who felt the American public would want trials. It seems Liddell also personally disliked the idea that Nazi leaders would be prosecuted for waging a war of aggression because of the precedent it set.

This article made me think about where the concept of transitional justice has developed and disseminated from. I think often the US claims responsibility for the emergence of universal human rights and transitional justice citing American exceptionalism, the Bill of Rights, Eleanor Roosevelt’s role in shaping the UN’s Universal Declaration, etc. The rest of the world seems to reject this position – perhaps because concepts of human rights and transitional justice are so ingrained in society that everyone would like to claim responsibility (and take the US down a peg). However, reading the Guardian’s article, it does seem that the impetus for transitional justice sprung from America. I’m interested in what everyone else thinks about the beginnings of transitional justice. Often I think I’ve been too dismissive of the role of the US in shaping normative values about justice, especially as other states and actors, such the EU/UN/any number of NGOs, are the current transitional justice vanguard. So should the US be credited more for the emergence of transitional justice?

The Issue of Maintained Impunity for Rwanda

While I was in Rwanda this past summer, a report was leaked about Rwanda’s alleged sponsorship of the M23 rebel group in the North Kivu province of the Democratic Republic of Congo, Rwanda’s tumultuous neighbor to the west. (For some background, read this.) Surprisingly, this conflict is still in the news. I say that this is surprising, because there has been a general trend of the international community ignoring over a decade’s worth of human rights abuses going on between those two countries and in the region as a whole. Additionally, another report has just come out stating Uganda’s involvement in the conflict.

There is a long list of reasons why Rwanda should not be sponsoring this rebel group. For starters, it’s illegal on many grounds according to international legal standards. First of all, there is an arms embargo in place for the DRC, so any supply of arms to this country is illegal. Second of all, the motivating issue for the M23 rebel group is supposedly a Congolese issue, which is one of the reasons Rwandan President Paul Kagame has given in his denial of M23. Also, Bosco Ntaganda, the leader of the Rwandan sponsored rebel movement, which many argue is a spin-off from the CNDP, is wanted by the International Criminal Court for war crimes. These are all blatant violations of international law that have been committed by the Rwandan government.

How has the international community’s allowance of Rwandan impunity affected its post-conflict transformation? I believe that this impunity afforded to Kagame and his government has led to its ability to and justification for maintaining a conflict over the border in the DRC for many years, contributing to the deaths of a vast number of Congolese people. This regional instability cannot be good in a region where the argument for comprehensive transitional justice is a very strong one.

Truth Commissions as Political Tools

Like much of Latin America, Brazil experienced many political crises and transformations from the early 1900s through to the late 70’s. Pseudo republican governments, military dictatorships, and full dictatorships all held power at some time in the country. It was during these periods that torture, disappearances, unjustified jailing, and killings were all committed by those in power. The current president of Brazil, Dilma Rousseff, was an activist that was jailed and tortured in 1970. Intellectuals were jailed and many fled the country in fear of their government. In May, president Rousseff created a truth commission made up of seven people to help bring to light the truth of what happened to the more than 9000 people that were tortured and killed. The commission promises amnesty for those who come forward and is intended to give closure to many generations affected by these brutal regimes.

I find myself doubting whether this initiative will be truly helpful to those affected by the crimes committed; many are in their 60s and 70s now and even more have already died. Is this is more of a political move to boost the popularity and image of the current political system, particularly for a political party in an election year? We talk about the role of transitional justice being necessary and incredibly useful for helping a country that has just experienced awful atrocities move past these awful occurrences, but is a country as advanced, rich, and powerful as Brazil in a transitional period from oppression to democratic government forty years later? Can the purpose of truth commissions be perverted into a political tool for strengthening the leaders that came out of opposition movements? How important is the intention behind different forms of transitional justice?


Transitional Justice Cann’t happen without The Rule Of Law

Two months after the fall of President Hosni Mubarak, many women activist who were detained in military detention camps have to submit to a five-minute-long so-called virginity test by a male doctor. The practice drew an outcry after Ms Ibrahim and other women spoke out about their treatment following their arrest during a protest in Tahrir Square in March 2011 – weeks after the fall of President Hosni Mubarak.
They said they had been forced by the Egyptian army, while in detention, to submit to a five-minute-long so-called virginity test by a male doctor.
The army initially denied such tests had taken place, but Amnesty International reported that a senior general, speaking anonymously, later admitted that they had happened.
Ms Ibrahim and other activists launched a legal challenge to prevent such tests happening again, and Cairo’s administrative court eventually ruled that the tests were illegal.
Afew months later, A military court in Egypt has acquitted an army doctor accused of carrying out forced “virginity tests” on women protesters.
Such actions done by the military soldier’s raises a sign that the Rule Of Law sentiment as a cornerstone of transitional justice in new Egypt will be difficult to achieve. While the Rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. We can clearly see in the virginity check a violation for human rights. The absence of independent judiciary could lead to more violence against women activism and this in all cases will hindered Egypt’s Transitional Justice process.

Zeidan and the future of Libya

In light of the recent election of the new Libyan Prime Minister, Ali Zeidan, a long time opponent of Gaddafi, I want to discuss an article from the UN News Centre that I read a month ago, and have been thinking about. Citing “transitional justice and national reconciliation” as one of his two priorities, Zeidan, who has played a key role in support of the political leadership of the ‘rebels’ against the forces of Gaddafi, will hopefully facilitate change in working towards a well-rounded process of achieving transitional justice. The article from Mid-September precisely addressed the need for such a process to manage reconciliation and referred to the then-released UN report by the UN Support Mission in Libya (UNSMIL). In order to set the foundation for a new democratic state, the aftermath of 41 years of autocratic rule followed by civil war and the overthrow of the infamous ruler must be properly dealt with. As the report recommends, the transitional justice strategy must include a “truth-seeking approach,” the provision of a fair legal process and prosecution to those in continued detention, and the consequent reconciliation of victims. Public dialogue on the matter must be established, as well as an entity of official public consultation, and conflicts among specific communities must be addressed. Furthermore, precautions against further human rights violations must be taken, to further restore trust in the minds of the people regarding the progress being made. Only through such a comprehensive and fair approach can the overall causes of the Libyan conflict be repaired, as well as its consequences, in setting up the basis of a healthy and enduring democratic Libya.

(Three links within the text)

United States of Transitional Justice

The United States is no friend of the ICC, sure, but it has been supportive and instrumental in other forms of transitional justice (including independent tribunals), not to mention the NGO leadership from the US. Yet, I continually wonder about the missing legacy of transitional justice within the US itself. As we have studied, mechanisms such as TRCs can be essential to establishing a common understanding of a legacy of mistreatment: an understanding that is occasionally critical to establishing a stable human-rights bound culture. On the flip-side, it is thought that these processes might re-open wounds, shaking national stability and driving groups apart in to “victims” and “perpetrators”. When it comes to our own history, I wonder how addressing our own injustices might affect us now. The mass slaughter of Native-Americans, the extensive slavery of Africans and their descendants, or the internment of Japanese-Americans all seem to be topics that our national mythology has only briefly addressed. Are there benefits to revisiting these unfortunate periods? Would a stronger congressional acceptance of abuses perpetrated against native tribes affect our current treatment of minorities as a whole? Would further revealing to the public view the extent of slavery improve our understanding of lasting economic inequality? Or, on the other hand, might these measures only propose racial divisions of a “forgotten” past. Can we still “transition” from the past?

Sri Lanka and the Best Transitional Justice Joke Ever

As I was researching our homework project for this week, I came across a super interesting article on Sri Lanka and Transitional Justice.

I found this blogpost particularly approachable, and it was especially helpful in supplementing the knowledge I’d just gained from watching the assigned documentary. Of course, it ends with a coarse toilet joke that is entirely inappropriate (and still embarrassingly funny), but the material isp resented in an intelligent and compelling fashion.

Perhaps the most valuable quote was the following: “The situation in Sri Lanka approximates a scenario of total victory. It appears that, despite international pressure, most believe that any justice the commission metes will be little more than victor’s justice”

The failures of the Sri Lankan truth commissions makes me wonder if the international community should intervene to ensure adequate justice is served on both sides of the ball. What do you guys think?