[LEGAL 392T] - Midterm Exam Guide - Comprehensive Notes for the exam (16 pages long!)

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7 Feb 2017
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UMASS-Amherst
LEGAL 392T
MIDTERM EXAM
STUDY GUIDE
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Legal Studies 392T:
Transitional Justice and Truth Commissions
Professor: Jamie Rowen
Theory and Practice
Lecture 1/25:
Colombia
o One of the earliest democracies
o People in power wanted to keep power → wanted land
o Conservatives (the powerful that wanted to keep land) vs. Liberals (that wanted to
reform the government to share land”
o 1948 - Liberal leader, Gaitan, assassinated → Started a Civil War
o National Front “ended” the war; Conservatives and Liberals sharing power
o Communists, who feel they weren’t being represented, went to the kills to create
their own communist community
1964 - Communist party transformed into Guerrilla
o Cocain drug war broke out
o Kidnappings
o Peace Talk in 2016 → political tactic
o Most recent example of a country going through a truth commision
Is this a transition?
For some: Going from a violent era to a peaceful one
Clean cut? No. Not all may agree. Scars are left behind from the war
o Conflict is between Guerrilla “Farc” and armed militia
o What should be done?
Punish perpetrators?
Farc won’t put their arms down if they will be sent to jail
How to help victims? (Their land was stolen from them)
Give them land, compensation, housing, and economic opportunity
o Usually is the State that will do this but the State wants the
Farc to pay
Prevent this from happening?
Punishment, institutional reform (Farc want political power), refine
the government
Mechanisms/Approaches/Tools
o Tribunals
Punishing people
o Truth Commissions
Understand history of violence to prevent it from happening again
o Reparations Programs
Pay individual victims
o Memorials
Museum/structure that honors victims; remembrance for victims; look at
past for future benefit
o Institutional Reform
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Ex.) Farc gets 5 seats in gov vs. Making sure they don’t have any say in
gov
o Socio-economic development
Collectively getting money for country
o Education Programming
Teach students what’s happening
Truth Commissions - A focus on the past; Their origins at the point of transition away
from war or authoritarian rule; The investigation of patterns of abuses and specific
violations committed over a period of time, rather than a single event; A focus on
violations of human rights and sometimes of humanitarian norm as well; A temporary
short-term life span, usually culminating in the production of a report with
recommendations; Official status, as commissions are sanctioned, authorized or
empowered by the state (and sometimes by armed opposition)
Key Notes:
o Justice
Retributive Justice (Restorative Justice)
o Punishment, vengeance, restriction of liberty
o Truth
Accurate historical record, voice
o Reconciliation
Improved social relationships
o Memory/Historical Memory
Group narrative
Retributive Justice
o Nuremberg Model
Hold the most responsible accountable through prison
Focus on creating an accurate historical record
Put all the leaders on trial
o Problems with that?
Only get the top leaders
Creates a cycle of violence by followers
Who is left to lead?
Lustration
o Purged communist leaders
What message does this send by not punishing?
“You do it right, you don’t get punished”
Tietel
o Rule of Law
o Predictability vs Substantive Justice
o “Truth v. Justice” vs “Peace v. Justice”
o Legalistic Ideology of Transitional Justice
Rooted in law, assumption of stability of law and adherence to it
Asks the “meaning of the rule of law in societies undergoing transition” or
“law’s role in periods of profound political transformation”
Is this justice?
o Main Theme: Look to the past for the goal of the future of liberal legality
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