Series on Transitional Justice - Böcker

This edited volume focuses on developments in recognizing, investigating, and prosecuting cases of sexual violence in (post-)conflict situations from an interdisciplinary angle. The investigation and prosecution of these cases raises new and challenging questions as to how to build evidence, but also how to address victims' concerns in that process. It addresses innovations and challenges of empirical and other new kinds of social scientific, archival and medical data collection techniques; the development of evidence in relation to charges ranging from sexual violence as a war crime, crime against humanity to genocide; evidentiary and procedural achievements and challenges involved in prosecuting sexual victimization in international courts; and how to create awareness of sexual violence crimes in order to recognize such crimes and to prevent them in the future.Contributors: Lynn Lawry, Kirsten Johnson, Jana Asher, Maxine Marcus, John Hagan, Richard Brooks, Todd Haugh, Chen Reis, Kelly Askin, Valerie Oosterveld, Sandesh Sivakumaran, Patricia Viseur Sellers, Luis Moreno-Ocampo, Linda Bianchi, Michelle Jarvis, Elena Martin Salgado, Sara Sharratt, Brigid Inder, Rachel Irwin, Teresa Doherty, Anne-Marie de Brouwer, Charlotte Ku, Renee Romkens, Larissa van den Herik, and Silke Studzinsky.

Rule of law has emerged as an essential objective in assistance to post-conflict and post-crisis societies such as Somalia, Kosovo, Liberia and Egypt. This has led to a host of externally promoted programmes and projects on law reform, constitutional development and judicial training, and security sector transformation. Through UN Security Council resolutions and other means of conditionality, the rule of law is not simply promoted in post-conflict and crisis settings, but also enforced. A failure to adhere to the rule of law can result in donors withholding funds and political support. The employment of the concept as a standard and condition in state-building has national legal and political consequences. Clarity in communication on the rule of law is of great importance. This book provides a critical analysis of past and current rule of law promotion, and argues that despite past experiences of development and technical assistance, rule of law reform in war-torn and crisis societies operates in an autonomous field where best practices and lessons learned are rarely or only superficially acknowledged.Furthermore, there is a need for a reorientation of rule of law assistance to the core values of the concept in order to retain its independent and 'analytical bite', and to develop criteria that can guide reformers in the field. The author provides a comparative and systematic overview of how rule of law promotion has been put into effect and identifies challenges and opportunities for enhancing and strengthening norms, ideologies and methods for legal and judicial reform after war and crisis.

States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. This volume examines in detail attempts that were made in certain significant post-conflict or post-authoritarian situations to strengthen the domestic rule of law with the aid of international law. Attention is paid in particular to the empowerment of domestic courts in such situations. International law may serve these courts as a tool for reconciling the demands for new rights and responsibilities with due process and other rule of law requirements. The volume contains case studies of the role of domestic courts in various post-conflict and transitional situations (Balkans, Iraq, Afghanistan, Nepal, East Timor, Russia, South Africa, and Rwanda).Each of these case studies seeks to answer questions relating to the exact constitutional moment empowering domestic courts to apply international law, the range of international legal norms that are applied, the involvement of international actors in bringing about change, the contextualization of international legal norms in states in transition, tension within such states as a result of the application of international law, and the legacy of domestic courts' empowerment in terms of durable rule of law entrenchment.

There seems to be a pervasive trend towards public apologies, forms of national introspection and appeals to grant forgiveness. Archbishop Tutu's motto that "there is no future without forgiveness" is well known. The South African Truth and Reconciliation Commission has become an important model and source of inspiration for many other countries that want to deal with their past grievances and internal conflicts. This book discusses the role of forgiveness within processes of peace building and transitional justice. Does 'forgiveness' enable a public or political use of the term? Is it possible to forgive on behalf of others, and if so, under what conditions? These conceptual questions are related to reflections on the cultural and religious contexts of expressing forgiveness. Do forgiving words promote a willingness to look ahead and prevent a relapse into conflicting views on the poisonous past? Or do they bring along aversion? Maybe the 'push' towards forgiveness is experienced as highly unfair.

Truth-seeking mechanisms, international criminal law developments, and other forms of transitional justice have become ubiquitous in societies emerging from long years of conflict, instability and oppression and moving into a post-conflict, more peaceful era. In practice, both top-down and bottom-up approaches to transitional justice are being formally and informally developed in places such as South Africa, Liberia, Peru, Chile, the Democratic Republic of Congo, Sierra Leone, Rwanda, the former Yugoslavia, and Northern Ireland. Many studies, conferences and debates have taken place addressing these developments and providing elaboration of theories relating to transition justice generally. However, rarely have these processes been examined and critiqued through a feminist lens. The position of women, particularly their specific victimisation, typically has not been taken into account in any systematic manner. Seldom do commentators specifically consider whether the recently developed mechanisms for promoting peace and reconciliation will actually help the position of women in a society moving out of repression or conflict.This is unfortunate, since women's issues are often overlooked and post-conflict societies, because they must rebuild, are ideally poised to introduce standards that would enable and ensure the active participation of the entire population, including women, in rebuilding a more stable, fair and democratic polity. This book offers some insights into women's perspectives and feminist views on the topic of transitional justice or 'justice in transition'. Bringing feminism into the conversation allows us to expand the possibilities for a transformative justice approach after a period of conflict or insecurity, not by replacing it with feminist theory, but by broadening the scope and vision of the potential responses.

The Spanish transition from the Franco regime to democracy has not been a very popular subject amongst researchers examining transitional justice at the international level. However, Spain presents certain peculiarities that make it an interesting case in which to explore comparative law and sociology. It has sometimes been seen as a model of peaceful transition, but has also been labelled as an example of an "amnesic" transition to a democratic system in which victims' rights, justice and truth were forgotten. In contrast to other transitions, demands of justice were not expressed during what was the purely transitional period, but they have been on the increase since then. That is why, in this case, we can speak of "post-transitional justice" or, more properly, of "late transitional justice". This book analyses, above all, the laws, policies and judicial decisions adopted in Spain that were related to the construction of the past and could therefore be understood as measures of transitional justice.By comparing this experience with transitional decisions adopted in other countries, the book highlights the main features of the Spanish case and the lessons that can be learned from it. Measures adopted during the transitional period, such as the amnesty and subsequent decisions aimed at giving some kind of partial reparation to the victims of the repression, are here studied. Demands for reviewing the past, the 2007 Act of Historical Memory, and the controversial use of criminal justice are also considered. Criminal Law is hardly applicable to the facts of the past, but the purely amnesic option can no longer be defended. Therefore, the author proposes a plan of action including different measures, such as the creation of a commission of memory, which would be in charge of investigating not only violent crimes or torture, but also other related crimes, including child abduction and politically motivated unlawful adoptions and those perpetrated in a systematic way during the Dictatorship. A victim-centred approach requires ensuring that each victim has the right to be considered on the basis of his or her own suffering, needs and rights and not as a member of a large group.

What lessons can we learn from history, and more importantly: how? This question is as commonplace as it is essential. Efficient transitional justice policy evaluation requires, inter alia, an historical dimension. What policy has or has not worked in the past is an obvious key question. Nevertheless, history as a profession remains somewhat absent in the multi-disciplinary field of transitional justice. The idea that we should learn lessons from history continues to create unease among most professional historians. In his critical introduction, the editor investigates the framework of this unease. At the core of this book are nine national European case studies (post 1945, the 1970s dictatorships, post 1989) which implement the true scholarly advantage of historical research for the field of transitional justice: the broad temporal space. All nine case studies tackle the longer-term impact of their country's transitional justice policies. Two comparative conclusions, amongst others by the internationally renowned transitional justice specialist Luc Huyse, complete this collection.This volume is a major contribution in the search for synergies between the agenda of historical research and the rapidly developing field of transitional justice.

Based on case studies spanning time and geography from the Spanish to the Nigerian civil wars, to government repression in Argentina and genocidal policies in Guatemala and Rwanda and, finally, to forced population removal in Australia and Israel, this collection represents a focused attempt to come to grips with some of the strategies used to publicly engage with traumatic memory work. The various essays offer a kaleidoscopic perspective of new approaches to show how such memory work contributes to transitional justice efforts, demonstrating the complexities of achieving justice and reconciliation through the open expression of shared memories of violence.

In a political climate that holds limited promise for addressing the issue of child recruitment, Child Soldiers and Transitional Justice: Protecting the Rights of Children Involved in Armed Conflicts challenges the trend towards a narrow focus on recruitment and use of the child, and seeks to contribute to more effective prevention and responses that offer the child a chance of recovery, reconciliation and reintegration.This book adapts existing theoretical frameworks of transitional justice in order to analyse child recruitment, with a view to demonstrating how a society can address the issue in a holistic way. It systematises relevant knowledge across a wide range of legal fields to allow for greater understanding of the law and principles, and a more informed basis for practical engagement with transitional justice mechanisms.Delving deep into the travaux prparatoires of each of the fundamental legal instruments, the author analyses their evolution, spanning humanitarian law, human rights law, criminal law, and other aspects of public law, including peace agreements and action plans developed with armed groups and forces. He provides a particular focus on and in-depth analysis of the Lubanga case, and its implications for other components of transitional justice. The findings highlight arguments for placing child recruitment firmly on the transitional justice agenda.By considering child recruitment against a transitional justice framework, the book allows a detailed understanding of the distinct but complementary components rule of law, criminal justice, historical justice, reparatory justice, institutional justice, and participatory justice and reveals the untapped potential in interactions between different areas of transitional justice.

How do societies at the national and international level try to overcome historical injustices? What remedies did they develop to do justice to victims of large scale atrocities? And even more important: what have we learned from the implementation of these so-called instruments of transitional justice in practice?Lawyers, socials scientists and historians have published shelves full of books and articles on how to confront the past through international criminal tribunals, truth commissions, financial compensation schemes and other instruments of retributive/punitive and restorative justice. A serious problem continues to be that broad interdisciplinary accounts that include both categories of measures are still hardly available. With this volume a group of international experts in the field endeavors to fill this gap, and even more. By alternating historical overviews with critical assessments this volume does not only offer an extensive introduction to the world of transitional justice, but also food for thought concerning the effectiveness of the remedies it offers to face the past successfully.

This book offers an analysis of the existing normative framework regulating the right to reparation for child victims of armed conflict. The study questions whether the current framework is sufficiently developed to provide child victims with adequate, effective and prompt reparations; furthermore it presents and critically assesses the judicial and non-judicial mechanisms in place as well as the reparations awarded and implemented so far at the international and regional level.The research stems from the need to fill a gap in the current literature on transitional justice, in particular on the right to reparation. Even though reparations are well-established legal measures in several domestic judicial systems all over the world, in transitional periods reparations are not just a means to redress the harm suffered by the victims of wrongful acts, but they also seek to contribute to the reconstitution or the constitution of a new political community in the aftermath of an armed conflict. The overview of the relevant cases and materials provided in this book helps paving the way for reparations that are effective, adequate, prompt, and in line with the international standards set forth by the CRC and other instruments. This book ultimately strives to highlight the shortcomings of the existing mechanisms and it points out the main issues that need to be improved and/or overcome in pursuance of child victims' redress.

The backdrop to Bridging Divides in Transitional Justice is Cambodia's history of radical Communist revolution (19751979) under the brutal Khmer Rouge regime, and the culture of impunity and silence imposed on the society by successive national governments for close to three decades. Dialogue on the suppressed past began in 2006 as key figures of the regime were brought before the in situ internationalised criminal court, the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC forms part of the panoply of international criminal courts of the post-Cold War era. The book engages with the dissonance between the expressivism of idealised international criminal trials and their communicative or discursive value within the societies most affected by their operation. An alternative view of the transitional trial is posited as the author elucidates the limits of expressivism and explores the communicative dynamics of ECCC trial procedure which have precipitated unprecedented local debate and reflection on the Khmer Rouge era.The book provides a timely and nuanced analysis of the ECCC's politically contentious and frequently criticised proceedings by examination of the trial dialogue in the Courts first two cases. From transcripts of the proceedings, exchanges between trial participants including witnesses, civil parties and the accused, are examined to show how, at times, the retributive proceedings assumed the character of restorative justice and encompassed significant dialogue on current social issues, such as the victim/perpetrator equation and the nature of ongoing post-traumatic stress disorder flowing from the events that took place under this violent regime The Court's capacity for representative and discursive proceedings is attributed to the substantive inclusion of the voice of the victim in proceedings, a modified inquisitorial procedure, narrative testimony and role-sharing between national and international court actors.

Truth commission recommendations are critical to their legacies, yet there is little research examining their fates. Based on fieldwork that is unprecedented in scope, this double volume project provides the first systematic study of the formulation and implementation of the recommendations of thirteen Latin American truth commissions.Beyond Words Vol. I examines the variations in truth commission recommendations across 13 Latin American cases. Insights are provided regarding how the internal dynamics of truth commissions, as well as the political, social and economic context in which they operate, influence how recommendations are formulated. The authors then explore how the nature of these recommendations themselves, along with the aforementioned factors, influence which recommendations are actually implemented. The conclusion considers the findings' relevance for the crafting of future truth commission recommendations and reflects upon how the formulation and implementation of these recommendations shape the impact of truth commissions on societies emerging from periods of violence and repression.Beyond Words Vol. II is a unique collection of 11 Latin American country studies covering all 13 formal truth commissions established in this region that submitted their final reports between 1985 and 2014. Based on qualitative original data and a common analytical framework, the main focus of each of the country chapters is threefold: (1) to provide a brief background to the truth commission(s); (2) to provide a detailed account of the formulation of the truth commission's recommendations; and (3) to analyze the implementation record of the recommendations, taking into account the actors and factors that have aided - or obstructed - the implementation process.

The book addresses the most pertinent theoretical and practical issues affecting the broad topic of harmonisation in the fields of environmental and energy law in a comprehensive and critical manner. In this respect, it constitutes a timely and meaningful contribution to the ongoing debate on the conceptual underpinnings, legal techniques and sector-specific problems concerned, while enriching the debate and promoting a more enhanced, coordinated regime to tackle environmental and energy issues in the European Union.Environmental legislation is often incoherent and fragmented, creating hurdles to its effective application. Consequently, rule makers need to resort to harmonisation, which is seen as referring to a number of techniques and instruments that all aim to clarify rules and establish a more coherent and solid legal framework. The book examines the merits of this approach within the context of the European Green Deal and the increasing urgency of the environmental and climate crisis, as well as the obstacles encountered and the questions arising from these complex processes.By bringing together more than fifteen renowned experts in the fields of European environmental and energy law, this book aims to dissect the most critical aspects of and obstacles in the process of strengthening coordination and, ultimately, effectiveness of the existing legal regimes in the field of environmental and energy law in the European Union while sparking further research in the field. Harmonisation in EU Environmental and Energy Law is highly recommended reading for legal scholars specialising in European environmental and energy law, as well as practitioners working in these fields.