Textbook Notes (362,768)
Canada (158,052)
POLI 360 (34)

"BRIEFING PAPER Transitional Justice- Key Concepts, Processes, and Challenges" (Clara Sandoval Villalba)

1 Page
Unlock Document

McGill University
Political Science
POLI 360
Julie Norman

Introduction and Backgroundarmed conflictrepressive regimes threaten intl community bc spillover effectmassive atrocitiesmigration of pplexpansion of terrorismarms production and proliferationdrugs proliferationorganised crimeenvironmental damagepovertylack of development threat makes it imperative to help states in such situations to undergo pol and soc change need systems that allow law democracy and HR protection to flourish peacebuilding measures necessary to achieve lasting transformation avoiding a relapsetraditional components of transitional justicejusticereparationtruthinstitutional reformKEY ISSUES AND PROBLEM AREAS Defining Transitional Justiceterm transitional justice coined in 1995 from publication concept has influenced the legal soc pol discourse of societies undergoing fundamental soc change and the intl comm key assumption any state where mass atrocities took place should engage in processes justice for past crimespeacedemocratic societyestablished rule of law UN definition full set of processes and mechanisms associated with a societys attempts to come to terms with a legacy of largescale past abuse in order to secure accountability serve justice and achieve reconciliationQuestionsrelationship bw intl law and trans justicewhether countries moving from auth regimes towards dem without HR violations should also engage in trans justice whether TJ can only occur where conflict or oppression has ceased to existhow to come to terms with largescale past abusewhat mechanisms should be usedRohtArriaza definition set of practices mechanisms and concerns that arise following a period of conflict civil strife or repression and that are aimed directly at confronting and dealing with past violations of HR and humanitarian lawtransitions can only take place when conflict has ended should include all HR not just civil and pol rights Arthur definition field constituted by an international web of individuals and institutions whose internal coherence is held together by common concepts practical aims and distinctive claims for legitimacyneed to resist and respond to mass atrocities in contexts of significant pol changeBell definition label or cloak that aims to rationalize a set of diverse bargains in relation to the past as an integrated endeavour so as to obscure the quite different normative moral and pol implication of the bargainsTJ is not a fieldProcesses of Transitional Justicejustice processbring perpetrators of mass atrocities to justice and punish themreparations processredress victims of atrocities for the harm sufferedtruth processfully investigate atrocities so soc discovers what happened who committed what and where the remains of victims areinstitutional reform processensure that such atrocities do not happen againnational consultationsmeaningful public participation is essential for the success of any transitiondisarmament demobilisation and reintegration DDRparallel rather than part of TJ complements TJfocus on helping excombatants to stop fighting and reintegrate into soc The Justice Processalleged perpetrators should be prosecuted tried and punished three main argumentsintl law paradigm obliges states to investigate prosecute and punish such crimesadequate reparation under intl law includes bringing perpetrators to accountaccountability for past crimes is crucial to prevent such atrocities in the future domestic trials in Argentina Colombia and Chileas a response to victims demandsto protect and enforce their rightscomply with binding intl obligations HR treaties though not expressly incorporating the obligation do have the right to a remedy understood to raise that obligation in relation to HR violations key legal precedent is Velasquez Rodriguez v Honduras case 1988states must prevent investigate and punish any violation recognizedmust restore the right violated and provide compensation understood to require states to investigated crimes ag humanity ad hoc trialsin former Yugoslavia International Criminal Tribunal for the Former Yugoslaviain Rwanda International Criminal Tribunal for RwandaRome Statute established ICC 2002113 ratifications todayICC jurisdiction over crimes ag humanity war crimes genocide and aggressionmakes individuals accountable for such crimes at intl levelhybrid tribunalsSpecial Court for Sierra LeoneCrime Panels of the District Court of Dill in East TimorWar Crimes Chamber in the State Court of Bosnia and HerzegovinaExtraordinary Chambers in the Courts of Cambodia important domestic and intl trend to fight impunityif states dont fulfill obligation to hold perpetrators accountable intl comm can take action towards justice perception that justice can be obstacle to peace truth and reconciliation in the aftermath of conflictrepression amnesties and statutes of limitations help weed out the truthhelp soc move forward S Africa allowed amnesty provision bc essential as an incentive for perpetrators to confess their crimes Brazil ruled amnesty law necessary to consolidate peace and was the result of soc consensus international level tension between objectivesUgandaICC initiated formal investigations against Lords Resistance Army and issued arrest warrants criticised bc of possible damage to peace negotiationsSudanICC arrest warrant ag Pres Al Bashir perceived as fuelling existing tensions international obligation questionswhat is the obligations scopeis it sufficient to investigate and prosecute but not punishshould punishment be proportional to gravity of crimeshow can compliance of traditional justice mechanisms with intl standards be measuredis there an intl obligation to cooperate with countries undergoing transitionsonly retributive justice or do we incorporate distributive justicefight against impunity and the delivery justice questionshow can evidence be securedhow can evidence be secured to help identify perpetrators how can effective victim and witness protection mechanisms be createdhow can intl cooperation bw states be secured to make sure perpetrators are prosecuted and punishedhow can evidence be preserved and sharedhow can required expertise and capacity to conduct complex investigations and prosecutions be ensured in fragile countriesinstitutions causal connection between justice and prevention yet to be definitively proven Kim and Sikkink suggest that trials improve HR in countries in transitionand their neighbours Snyder and Vinjamuri maintain that such trials can cause further atrocities TJ processes take a lot of time so impact is hard to measure The Reparation ProcessHR violations cause serious harm to its victims and therefore should be redressed state and individual reparationsunder intl law any state that breaches its intl obligations has the obligation to produce reparationintl law recognises individual criminal responsibility for crimes ag humanity war crimes genocide and aggression BUT fail to address some actorsKhulumani case5 corporations aided and abetted commission of apartheid in S Africa currently being litigated in US intl law has not evolved to hold transnational corporations or financial institutions accountable B
More Less

Related notes for POLI 360

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.