Nanci Adler
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240906
- eISBN:
- 9780191598869
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240906.003.0011
- Subject:
- Political Science, Democratization
The main aim of this book has been to analyse what determines how new democracies face an authoritarian past (and human rights violations in particular) and, in turn, the way in which policies of ...
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The main aim of this book has been to analyse what determines how new democracies face an authoritarian past (and human rights violations in particular) and, in turn, the way in which policies of truth and justice shape the process of democratization. Thus, eighteen cases are analysed in detail, covering a good part of the processes of democratization that have taken place since the beginning of the 1970s; countries experiencing a political change that did not undergo a transition to democracy have been left out, as have countries in which truth and justice policies are the result of the end of a civil conflict where there is no accompanying movement towards democratization. The key obstacle to theorizing about this topic is the enormous influence of the particular historical evolution of each country, and various factors emerging therefrom, on policies of truth and justice in transition. Thus, a general overview to categorize different experiences of transitions from dictatorial rule according to the balance of power between authoritarians and democrats is immediately useful, although the aim of the editors has been to keep sight of the peculiar nature of national experiences while providing some kind of useful guidelines for approaching the subject. It is in this spirit that the two sets of conclusions offered here provide a way of looking at the issue of transitional truth and justice: the first pertains to the probability that a new democracy will undertake policies of this kind; the second refers to the consequences that such policies may have for democratic life or democratization.Less
The main aim of this book has been to analyse what determines how new democracies face an authoritarian past (and human rights violations in particular) and, in turn, the way in which policies of truth and justice shape the process of democratization. Thus, eighteen cases are analysed in detail, covering a good part of the processes of democratization that have taken place since the beginning of the 1970s; countries experiencing a political change that did not undergo a transition to democracy have been left out, as have countries in which truth and justice policies are the result of the end of a civil conflict where there is no accompanying movement towards democratization. The key obstacle to theorizing about this topic is the enormous influence of the particular historical evolution of each country, and various factors emerging therefrom, on policies of truth and justice in transition. Thus, a general overview to categorize different experiences of transitions from dictatorial rule according to the balance of power between authoritarians and democrats is immediately useful, although the aim of the editors has been to keep sight of the peculiar nature of national experiences while providing some kind of useful guidelines for approaching the subject. It is in this spirit that the two sets of conclusions offered here provide a way of looking at the issue of transitional truth and justice: the first pertains to the probability that a new democracy will undertake policies of this kind; the second refers to the consequences that such policies may have for democratic life or democratization.
Pablo De Greiff
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814794661
- eISBN:
- 9780814725276
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814794661.003.0002
- Subject:
- Political Science, Political Theory
This chapter outlines a normative conception of transitional justice, focusing on the UN Secretary General's Report, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict ...
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This chapter outlines a normative conception of transitional justice, focusing on the UN Secretary General's Report, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.” This report offers not only a definition of transitional justice but also a sophisticated understanding of the notion. It defines transitional justice as “the full range of processes and mechanisms associated with a society's attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” However, the chapter argues that the consensus around any given understanding of transitional justice and its components is far from complete. The idea that transitional justice should be conceived of holistically, as stated in the Secretary General's Report, clashes, in practice, with the tendency of governments and others to think that the different measures can be traded off against one another.Less
This chapter outlines a normative conception of transitional justice, focusing on the UN Secretary General's Report, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.” This report offers not only a definition of transitional justice but also a sophisticated understanding of the notion. It defines transitional justice as “the full range of processes and mechanisms associated with a society's attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” However, the chapter argues that the consensus around any given understanding of transitional justice and its components is far from complete. The idea that transitional justice should be conceived of holistically, as stated in the Secretary General's Report, clashes, in practice, with the tendency of governments and others to think that the different measures can be traded off against one another.
Lavinia Stan and Lucian Turcescu
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780195308532
- eISBN:
- 9780199785728
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195308532.003.0004
- Subject:
- Religion, Religion and Society
Romania has been hard pressed to confront the communist past and its human rights infringements. Among religious denominations, the most tainted by collaboration with the repressive regime was the ...
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Romania has been hard pressed to confront the communist past and its human rights infringements. Among religious denominations, the most tainted by collaboration with the repressive regime was the Orthodox Church. Four related themes illustrate how transitional justice affected the Orthodox Church: Patriarch Teoctist's undignified resignation in 1990 and his controversial return to the helm of his church; allegations that Orthodox priests broke the secret of the confessional by reporting information to the communist secret political police, the Securitate; reevaluation of the pros and cons of the church's collaboration with the communist regime; and the church's insistence that the names of political police agents and informers drawn from among the Orthodox clergy continue to be kept secret.Less
Romania has been hard pressed to confront the communist past and its human rights infringements. Among religious denominations, the most tainted by collaboration with the repressive regime was the Orthodox Church. Four related themes illustrate how transitional justice affected the Orthodox Church: Patriarch Teoctist's undignified resignation in 1990 and his controversial return to the helm of his church; allegations that Orthodox priests broke the secret of the confessional by reporting information to the communist secret political police, the Securitate; reevaluation of the pros and cons of the church's collaboration with the communist regime; and the church's insistence that the names of political police agents and informers drawn from among the Orthodox clergy continue to be kept secret.
Christine Bell
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199226832
- eISBN:
- 9780191710261
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199226832.003.0013
- Subject:
- Law, Public International Law
This chapter examines the second area in which the lex pacificatoria has re-shaped international law: transitional justice. This new law is argued to derive from the attempt to negotiate pragmatic ...
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This chapter examines the second area in which the lex pacificatoria has re-shaped international law: transitional justice. This new law is argued to derive from the attempt to negotiate pragmatic solutions to the question of accountability for conflict atrocities which will enable the ‘constitutional fix’ to hold, and the need to be able to articulate these pragmatic solutions as complying with international legal standards for accountability. In particular, the new law has derived from an attempt to apply the normative constraints of human rights and humanitarian law to peace agreement amnesties. The interface between local peace agreement practice and international law can again be argued to have given substantive content to the lex pacificatoria or law of the peacemaker, producing a ‘new law’ of transitional justice.Less
This chapter examines the second area in which the lex pacificatoria has re-shaped international law: transitional justice. This new law is argued to derive from the attempt to negotiate pragmatic solutions to the question of accountability for conflict atrocities which will enable the ‘constitutional fix’ to hold, and the need to be able to articulate these pragmatic solutions as complying with international legal standards for accountability. In particular, the new law has derived from an attempt to apply the normative constraints of human rights and humanitarian law to peace agreement amnesties. The interface between local peace agreement practice and international law can again be argued to have given substantive content to the lex pacificatoria or law of the peacemaker, producing a ‘new law’ of transitional justice.
Jan‐Werner Müller
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240906
- eISBN:
- 9780191598869
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240906.003.0009
- Subject:
- Political Science, Democratization
The East German case of transitional justice is unique in more ways than one: whereas in other Central and Eastern European countries dictatorships disappeared, in East Germany the country ...
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The East German case of transitional justice is unique in more ways than one: whereas in other Central and Eastern European countries dictatorships disappeared, in East Germany the country disappeared along with the dictatorship; where in other countries economic transition was precarious and often provoked the return of communist parties to power, in united Germany institutional stability and social safety were guaranteed by the fact that East Germany was absorbed into what was then one of Europe’s strongest economies and, arguably, most stable democracies. Thus, the ascendancy of a socialist successor party to national power was effectively impossible; moreover, where other countries felt their way towards an appropriate way of dealing with a difficult past, the West Germans had already been through a more or less successful experience with overcoming the past. After spring 1990, when the German Democratic Republic (DDR) revolutionaries negotiated a ‘transition by transaction’ with the old regime, the evolution towards democracy by ‘incorporation’ into West Germany was never at risk, and consequently old elites could be tried and purged; because of this ‘inner security’ and large financial resources, united Germany could also afford a vast and expensive bureaucracy to investigate the past thoroughly. At the same time, the complete incorporation of East Germany has produced unique problems, and policies to deal with the past were arguably contaminated by what many observers have seen as a sort of ‘colonialism in one country’. Achieving ‘inner unity’ between former East and West Germany was superimposed on the objectives of achieving justice and establishing secure foundations for democracy; thus, while many commentators have deemed the policy of openly dealing with the past a success, they have also claimed that the problem of the double division between East and West and within East Germany has probably been exacerbated by this very policy.Less
The East German case of transitional justice is unique in more ways than one: whereas in other Central and Eastern European countries dictatorships disappeared, in East Germany the country disappeared along with the dictatorship; where in other countries economic transition was precarious and often provoked the return of communist parties to power, in united Germany institutional stability and social safety were guaranteed by the fact that East Germany was absorbed into what was then one of Europe’s strongest economies and, arguably, most stable democracies. Thus, the ascendancy of a socialist successor party to national power was effectively impossible; moreover, where other countries felt their way towards an appropriate way of dealing with a difficult past, the West Germans had already been through a more or less successful experience with overcoming the past. After spring 1990, when the German Democratic Republic (DDR) revolutionaries negotiated a ‘transition by transaction’ with the old regime, the evolution towards democracy by ‘incorporation’ into West Germany was never at risk, and consequently old elites could be tried and purged; because of this ‘inner security’ and large financial resources, united Germany could also afford a vast and expensive bureaucracy to investigate the past thoroughly. At the same time, the complete incorporation of East Germany has produced unique problems, and policies to deal with the past were arguably contaminated by what many observers have seen as a sort of ‘colonialism in one country’. Achieving ‘inner unity’ between former East and West Germany was superimposed on the objectives of achieving justice and establishing secure foundations for democracy; thus, while many commentators have deemed the policy of openly dealing with the past a success, they have also claimed that the problem of the double division between East and West and within East Germany has probably been exacerbated by this very policy.
Rosemary Nagy and Jon Elster
Melissa S. Williams (ed.)
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814794661
- eISBN:
- 9780814725276
- Item type:
- book
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814794661.001.0001
- Subject:
- Political Science, Political Theory
Criminal tribunals, truth commissions, reparations, apologies, and memorializations are the characteristic instruments in the transitional justice toolkit that can help societies transition from ...
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Criminal tribunals, truth commissions, reparations, apologies, and memorializations are the characteristic instruments in the transitional justice toolkit that can help societies transition from authoritarianism to democracy, from civil war to peace, and from state-sponsored extra-legal violence to a rights-respecting rule of law. Over the last several decades, their growing use has established transitional justice as a body of both theory and practice whose guiding norms and structures encompasses the range of institutional mechanisms by which societies address the wrongs committed by past regimes in order to lay the foundation for more legitimate political and legal order. This book settles some of the key theoretical debates over the meaning of transitional justice while opening up new ones. By engaging both theorists and empirical social scientists in debates over central categories of analysis in the study of transitional justice, it also illuminates the challenges of making strong empirical claims about the impact of transitional institutions.Less
Criminal tribunals, truth commissions, reparations, apologies, and memorializations are the characteristic instruments in the transitional justice toolkit that can help societies transition from authoritarianism to democracy, from civil war to peace, and from state-sponsored extra-legal violence to a rights-respecting rule of law. Over the last several decades, their growing use has established transitional justice as a body of both theory and practice whose guiding norms and structures encompasses the range of institutional mechanisms by which societies address the wrongs committed by past regimes in order to lay the foundation for more legitimate political and legal order. This book settles some of the key theoretical debates over the meaning of transitional justice while opening up new ones. By engaging both theorists and empirical social scientists in debates over central categories of analysis in the study of transitional justice, it also illuminates the challenges of making strong empirical claims about the impact of transitional institutions.
Daniel Philpott
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199827978
- eISBN:
- 9780199933020
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199827978.003.0010
- Subject:
- Religion, Religion and Society
Over the past generation, a global wave of countries have undertaken what has come to be known as transitional justice—efforts to address the injustices of a past period of civil war, genocide, or ...
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Over the past generation, a global wave of countries have undertaken what has come to be known as transitional justice—efforts to address the injustices of a past period of civil war, genocide, or dictatorship, whether through trials, truth commissions, reparations, apologies, forgiveness, or the building of memorials and monuments. The religious have played a pivotal role in developing and spreading a paradigm for transitional justice—reconciliation—that they espouse disproportionately though not exclusively. But what kind of influence have the religious and the paradigm of reconciliation actually had in the politics of transitional justice? And what factors make certain religious actors influential? This chapter looks closely at religious actors' efforts to shape official policies, especially governments' choices for truth commissions or trials.Less
Over the past generation, a global wave of countries have undertaken what has come to be known as transitional justice—efforts to address the injustices of a past period of civil war, genocide, or dictatorship, whether through trials, truth commissions, reparations, apologies, forgiveness, or the building of memorials and monuments. The religious have played a pivotal role in developing and spreading a paradigm for transitional justice—reconciliation—that they espouse disproportionately though not exclusively. But what kind of influence have the religious and the paradigm of reconciliation actually had in the politics of transitional justice? And what factors make certain religious actors influential? This chapter looks closely at religious actors' efforts to shape official policies, especially governments' choices for truth commissions or trials.
Jens Iverson
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199685899
- eISBN:
- 9780191765841
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685899.003.0006
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter contrasts Transitional Justice and jus post bellum in order to create a clearer definition and understanding of each. The terms are evaluated not as essentialist truths but as terms that ...
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This chapter contrasts Transitional Justice and jus post bellum in order to create a clearer definition and understanding of each. The terms are evaluated not as essentialist truths but as terms that have evolved and will continue to change. The chapter begins with a review of Hersch Lauterpacht’s concept of the Grotian Tradition, and how it relates to Transitional Justice and jus post bellum. Jus post bellum and Transitional Justice are then contrasted and analyzed with respect to their varied legal or political emphases, their content, their geographical scope, their contrasting historical foundations, and their current usage. The chapter seeks to clarify where the extensive literature and experience regarding Transitional Justice is more or less likely to be helpful to those interested in jus post bellum. Additionally, the author hopes that the concept of jus post bellum may help those interested in Transitional Justice to refocus and strengthen their field.Less
This chapter contrasts Transitional Justice and jus post bellum in order to create a clearer definition and understanding of each. The terms are evaluated not as essentialist truths but as terms that have evolved and will continue to change. The chapter begins with a review of Hersch Lauterpacht’s concept of the Grotian Tradition, and how it relates to Transitional Justice and jus post bellum. Jus post bellum and Transitional Justice are then contrasted and analyzed with respect to their varied legal or political emphases, their content, their geographical scope, their contrasting historical foundations, and their current usage. The chapter seeks to clarify where the extensive literature and experience regarding Transitional Justice is more or less likely to be helpful to those interested in jus post bellum. Additionally, the author hopes that the concept of jus post bellum may help those interested in Transitional Justice to refocus and strengthen their field.
Alexandra Barahona De Brito, Carmen Gonzalez Enriquez, and Paloma Aguilar (eds)
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240906
- eISBN:
- 9780191598869
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240906.001.0001
- Subject:
- Political Science, Democratization
The book explores how new democracies face an authoritarian past and past human rights violations, and the way in which policies of truth and justice shape the process of democratization. Eighteen ...
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The book explores how new democracies face an authoritarian past and past human rights violations, and the way in which policies of truth and justice shape the process of democratization. Eighteen countries in Central and South America, Central, Eastern and South Europe and South Africa are analysed in detail. The main variables affecting the implementation of truth and justice policies (purges, truth commissions and trials, among other policies) are: the balance between old and new regime forces; the availability of institutional, human and financial resources, the nature of the ideological preferences and commitments of the elites in question; the mobilization of social groups pressing in favour of these policies; and the importance of human rights in the international arena. The duration and degree of institutionalization of dictatorship is also important. A prolonged dictatorship makes it harder for a new democracy to implement truth and justice policies, particularly when repression occurred in the distant past and if repression gained social complicity. The magnitude and methods of repression used against opposition forces in the dictatorship also shape transitional truth and justice: torture, assassination, and disappearances and clandestine repression in general (as in Central and South America, South Africa) require a different response to official institutionalized ‘softer’ repression (as in Portugal, Spain and Eastern Europe). The findings indicate that, with hindsight, there appears to be no direct relation between the implementation of policies of backward-looking truth and justice and the quality of new democracies. Democracy is just as strong and deep in Spain, Hungary and Uruguay, where there was no punishment or truth telling, as it is in Portugal, the Czech Republic or Argentina, which experienced purges and trials. However, such policies are justified not merely on instrumental grounds, but also for ethical reasons, and they symbolize a break with a violent, undemocratic past.Less
The book explores how new democracies face an authoritarian past and past human rights violations, and the way in which policies of truth and justice shape the process of democratization. Eighteen countries in Central and South America, Central, Eastern and South Europe and South Africa are analysed in detail. The main variables affecting the implementation of truth and justice policies (purges, truth commissions and trials, among other policies) are: the balance between old and new regime forces; the availability of institutional, human and financial resources, the nature of the ideological preferences and commitments of the elites in question; the mobilization of social groups pressing in favour of these policies; and the importance of human rights in the international arena. The duration and degree of institutionalization of dictatorship is also important. A prolonged dictatorship makes it harder for a new democracy to implement truth and justice policies, particularly when repression occurred in the distant past and if repression gained social complicity. The magnitude and methods of repression used against opposition forces in the dictatorship also shape transitional truth and justice: torture, assassination, and disappearances and clandestine repression in general (as in Central and South America, South Africa) require a different response to official institutionalized ‘softer’ repression (as in Portugal, Spain and Eastern Europe). The findings indicate that, with hindsight, there appears to be no direct relation between the implementation of policies of backward-looking truth and justice and the quality of new democracies. Democracy is just as strong and deep in Spain, Hungary and Uruguay, where there was no punishment or truth telling, as it is in Portugal, the Czech Republic or Argentina, which experienced purges and trials. However, such policies are justified not merely on instrumental grounds, but also for ethical reasons, and they symbolize a break with a violent, undemocratic past.
Janine Natalya Clark
- Published in print:
- 2021
- Published Online:
- March 2021
- ISBN:
- 9780190095888
- eISBN:
- 9780197541159
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190095888.003.0028
- Subject:
- Psychology, Social Psychology
Transitional justice refers to the set of judicial and non-judicial processes that societies may use to deal with legacies of past human rights abuses and atrocities. While the field is rapidly ...
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Transitional justice refers to the set of judicial and non-judicial processes that societies may use to deal with legacies of past human rights abuses and atrocities. While the field is rapidly expanding, to date there are almost no systematic analyses of transitional justice within a resilience framework, or vice versa. The purpose of this chapter is to address that gap and to demonstrate why resilience is highly relevant for transitional justice theory and practice. It argues that resilience thinking can enhance the impact of transitional justice on the ground, by contributing to the development of more ecological approaches to dealing with the past that locate individuals within their broader social environments. The chapter also reflects on the conceptual and empirical utility of resilience as a concept that opens up a space for analyzing the wider societal and systemic impact of legal systems more generally.Less
Transitional justice refers to the set of judicial and non-judicial processes that societies may use to deal with legacies of past human rights abuses and atrocities. While the field is rapidly expanding, to date there are almost no systematic analyses of transitional justice within a resilience framework, or vice versa. The purpose of this chapter is to address that gap and to demonstrate why resilience is highly relevant for transitional justice theory and practice. It argues that resilience thinking can enhance the impact of transitional justice on the ground, by contributing to the development of more ecological approaches to dealing with the past that locate individuals within their broader social environments. The chapter also reflects on the conceptual and empirical utility of resilience as a concept that opens up a space for analyzing the wider societal and systemic impact of legal systems more generally.
Louise Mallinder
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199364862
- eISBN:
- 9780199364893
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199364862.003.0006
- Subject:
- Political Science, International Relations and Politics
For centuries, amnesty laws were a habitual element of peacebuilding and reconciliation around the world. However, from the late 1990s, reliance on amnesty laws to promote peace and reconciliation ...
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For centuries, amnesty laws were a habitual element of peacebuilding and reconciliation around the world. However, from the late 1990s, reliance on amnesty laws to promote peace and reconciliation has become increasingly controversial. Drawing on restorative justice theory and the experiences of amnesty processes in Timor-Leste, South Africa, and Uganda, this paper tentatively proposes elements that should be considered when designing a “restorative amnesty.” This analysis will include addressing how amnesty laws can facilitate inclusive restorative processes, promote truth recovery, enforce restorative outcomes, and provide reparations. However, due to the context-dependent nature of restorative justice, these proposals should not be viewed as a template to which all amnesties should conform, but rather as themes to be considered when tailoring bespoke amnesty laws for local contexts.Less
For centuries, amnesty laws were a habitual element of peacebuilding and reconciliation around the world. However, from the late 1990s, reliance on amnesty laws to promote peace and reconciliation has become increasingly controversial. Drawing on restorative justice theory and the experiences of amnesty processes in Timor-Leste, South Africa, and Uganda, this paper tentatively proposes elements that should be considered when designing a “restorative amnesty.” This analysis will include addressing how amnesty laws can facilitate inclusive restorative processes, promote truth recovery, enforce restorative outcomes, and provide reparations. However, due to the context-dependent nature of restorative justice, these proposals should not be viewed as a template to which all amnesties should conform, but rather as themes to be considered when tailoring bespoke amnesty laws for local contexts.
Melissa S. Williams and Rosemary Nagy
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814794661
- eISBN:
- 9780814725276
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814794661.003.0001
- Subject:
- Political Science, Political Theory
This introductory chapter presents the democratic uprising in Egypt, Libya, and the Ivory Coast, arguing that the dilemmas associated with regime change sought to secure political order, restore ...
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This introductory chapter presents the democratic uprising in Egypt, Libya, and the Ivory Coast, arguing that the dilemmas associated with regime change sought to secure political order, restore legitimacy, and deal with the abuses of the prior regime. Given this context, the notion of transitional justice—the processes of coming to terms with a legacy of large-scale abuses of the prior government—came to denote a distinct field of politico-legal practice and of scholarly inquiry. Moreover, the role of international institutions in transitional justice has also evolved since the mid-1990s. Local forms of justice have not simply replaced international courts. To the contrary, the creation of the International Criminal Court (ICC) institutionalized an ongoing international role in transitional justice in lieu of ad hoc courts such as the Nuremberg Tribunal.Less
This introductory chapter presents the democratic uprising in Egypt, Libya, and the Ivory Coast, arguing that the dilemmas associated with regime change sought to secure political order, restore legitimacy, and deal with the abuses of the prior regime. Given this context, the notion of transitional justice—the processes of coming to terms with a legacy of large-scale abuses of the prior government—came to denote a distinct field of politico-legal practice and of scholarly inquiry. Moreover, the role of international institutions in transitional justice has also evolved since the mid-1990s. Local forms of justice have not simply replaced international courts. To the contrary, the creation of the International Criminal Court (ICC) institutionalized an ongoing international role in transitional justice in lieu of ad hoc courts such as the Nuremberg Tribunal.
David Cohen and Leigh-Ashley Lipscomb
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814794661
- eISBN:
- 9780814725276
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814794661.003.0011
- Subject:
- Political Science, Political Theory
This chapter presents the case of East Timor to challenge the notion that the accumulation of transitional justice mechanisms in any post-conflict context necessarily leads to a better result for the ...
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This chapter presents the case of East Timor to challenge the notion that the accumulation of transitional justice mechanisms in any post-conflict context necessarily leads to a better result for the population for whose benefit these mechanisms are purportedly deployed. In doing so, the chapter examines three distinctive characteristics of East Timor. The first outstanding feature of the East Timor context is its dual transition. This study examines the shift from authoritarianism to democracy in two countries at the same time—the newly independent East Timor and the reformist regime after the end of dictatorship in Indonesia. Second, the country is one of the few contexts in which the United Nations acted as sovereign. Finally, it is the only place where a hybrid tribunal, a national tribunal from another country, a national truth commission, and a bilateral truth commission have all been deployed.Less
This chapter presents the case of East Timor to challenge the notion that the accumulation of transitional justice mechanisms in any post-conflict context necessarily leads to a better result for the population for whose benefit these mechanisms are purportedly deployed. In doing so, the chapter examines three distinctive characteristics of East Timor. The first outstanding feature of the East Timor context is its dual transition. This study examines the shift from authoritarianism to democracy in two countries at the same time—the newly independent East Timor and the reformist regime after the end of dictatorship in Indonesia. Second, the country is one of the few contexts in which the United Nations acted as sovereign. Finally, it is the only place where a hybrid tribunal, a national tribunal from another country, a national truth commission, and a bilateral truth commission have all been deployed.
Zachary D. Kaufman
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780190243494
- eISBN:
- 9780190243524
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190243494.001.0001
- Subject:
- Law, Public International Law, Human Rights and Immigration
In this book Zachary D. Kaufman explores the U.S. government’s support for, or opposition to, certain transitional justice institutions. By first presenting an overview of transitional justice ...
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In this book Zachary D. Kaufman explores the U.S. government’s support for, or opposition to, certain transitional justice institutions. By first presenting an overview of transitional justice options (such as war crimes tribunals) and then analyzing six historical case studies, Kaufman evaluates why and how the United States has pursued particular transitional justice options since World War II. This book challenges the “legalist” paradigm, which postulates that liberal states pursue war crimes tribunals because their decision-makers hold a principled commitment to the rule of law. Kaufman develops an alternative theory—“prudentialism”—which contends that any state (liberal or illiberal) may support bona fide war crimes tribunals. More generally, prudentialism proposes that states pursue transitional justice options, not out of strict adherence to certain principles, but as a result of a case-specific balancing of politics, pragmatics, and normative beliefs. Kaufman tests these two competing theories through the U.S. experience in six contexts: Germany and Japan after World War II, the 1988 bombing of Pan Am flight 103, the 1990–1991 Iraqi offenses against Kuwaitis, the atrocities in the former Yugoslavia in the 1990s, and the 1994 Rwandan genocide. Kaufman demonstrates that political and pragmatic factors featured as or more prominently in U.S. transitional justice policy than did U.S. government officials’ normative beliefs. Kaufman thus concludes that, at least for the United States, prudentialism is superior to legalism as an explanatory theory in transitional justice policymaking.Less
In this book Zachary D. Kaufman explores the U.S. government’s support for, or opposition to, certain transitional justice institutions. By first presenting an overview of transitional justice options (such as war crimes tribunals) and then analyzing six historical case studies, Kaufman evaluates why and how the United States has pursued particular transitional justice options since World War II. This book challenges the “legalist” paradigm, which postulates that liberal states pursue war crimes tribunals because their decision-makers hold a principled commitment to the rule of law. Kaufman develops an alternative theory—“prudentialism”—which contends that any state (liberal or illiberal) may support bona fide war crimes tribunals. More generally, prudentialism proposes that states pursue transitional justice options, not out of strict adherence to certain principles, but as a result of a case-specific balancing of politics, pragmatics, and normative beliefs. Kaufman tests these two competing theories through the U.S. experience in six contexts: Germany and Japan after World War II, the 1988 bombing of Pan Am flight 103, the 1990–1991 Iraqi offenses against Kuwaitis, the atrocities in the former Yugoslavia in the 1990s, and the 1994 Rwandan genocide. Kaufman demonstrates that political and pragmatic factors featured as or more prominently in U.S. transitional justice policy than did U.S. government officials’ normative beliefs. Kaufman thus concludes that, at least for the United States, prudentialism is superior to legalism as an explanatory theory in transitional justice policymaking.
Ruti G. Teitel
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780195394948
- eISBN:
- 9780199378777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195394948.003.0004
- Subject:
- Law, Public International Law
The genealogy contained in this chapter entails an intellectual history of the concept of “transitional justice,” a term the author coined in 1991 when observing the transitions of Latin America and ...
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The genealogy contained in this chapter entails an intellectual history of the concept of “transitional justice,” a term the author coined in 1991 when observing the transitions of Latin America and Eastern Europe. From perspectives both backward- and forward-looking, the conception of transitional justice was informed by the nature of and the degree of commitment to political repression. This genealogy frames the last decades of transitional justice by offering three phases that reflect changes in the fundamental conception of justice. These phases appear to have been long-acting, as the genealogy has been widely cited. It is now more apt than ever, as its framework can help us understand the phenomena of transition of recent years. In particular, there is the move from post-war internationalism to a stage of local justice.Less
The genealogy contained in this chapter entails an intellectual history of the concept of “transitional justice,” a term the author coined in 1991 when observing the transitions of Latin America and Eastern Europe. From perspectives both backward- and forward-looking, the conception of transitional justice was informed by the nature of and the degree of commitment to political repression. This genealogy frames the last decades of transitional justice by offering three phases that reflect changes in the fundamental conception of justice. These phases appear to have been long-acting, as the genealogy has been widely cited. It is now more apt than ever, as its framework can help us understand the phenomena of transition of recent years. In particular, there is the move from post-war internationalism to a stage of local justice.
Beth Van Schaack
Michael N. Schmitt, Shane R. Reeves, Winston S. Williams, and Sasha Radin (eds)
- Published in print:
- 2020
- Published Online:
- December 2020
- ISBN:
- 9780190055967
- eISBN:
- 9780190055974
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190055967.003.0010
- Subject:
- Law, Public International Law
The penultimate chapter offers a discussion of the prospects for a genuine transitional justice process in Syria. Chapter 10 begins with a short history of the development of the archetypal tools ...
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The penultimate chapter offers a discussion of the prospects for a genuine transitional justice process in Syria. Chapter 10 begins with a short history of the development of the archetypal tools within the transitional justice toolkit—criminal accountability, truth commissions, reparations, amnesties, lustration, institutional reform, and guarantees of nonrecurrence—and the way in which transitional justice efforts have become increasingly internationalized. This enhanced involvement of the international community in promoting transitional justice reflects the belief—premised on historical case studies and emerging empirical research—that societies in transition must address the crimes of the past in some capacity or risk their repetition. The chapter surveys the most recent research testing these claims, which has benefited from the creation of a number of new databases gleaned from states in transition. The chapter then describes ways in which the international community has tried to prepare for a future transitional justice process in Syria even in the absence of a political transition, including by training Syrian advocates, surveying Syrian communities to understand their knowledge of transitional justice and preferences for Syria, promoting psychosocial rehabilitation and solidarity among victims, and preparing for truth-telling exercises and institutional reform measures. The conclusion suggests ways in which the international community could still promote some form of transitional justice as part of the reconstruction process, even if Assad remains in power, which seems increasingly likely.Less
The penultimate chapter offers a discussion of the prospects for a genuine transitional justice process in Syria. Chapter 10 begins with a short history of the development of the archetypal tools within the transitional justice toolkit—criminal accountability, truth commissions, reparations, amnesties, lustration, institutional reform, and guarantees of nonrecurrence—and the way in which transitional justice efforts have become increasingly internationalized. This enhanced involvement of the international community in promoting transitional justice reflects the belief—premised on historical case studies and emerging empirical research—that societies in transition must address the crimes of the past in some capacity or risk their repetition. The chapter surveys the most recent research testing these claims, which has benefited from the creation of a number of new databases gleaned from states in transition. The chapter then describes ways in which the international community has tried to prepare for a future transitional justice process in Syria even in the absence of a political transition, including by training Syrian advocates, surveying Syrian communities to understand their knowledge of transitional justice and preferences for Syria, promoting psychosocial rehabilitation and solidarity among victims, and preparing for truth-telling exercises and institutional reform measures. The conclusion suggests ways in which the international community could still promote some form of transitional justice as part of the reconstruction process, even if Assad remains in power, which seems increasingly likely.
Cecile Aptel, Saudamini Siegrist, and Friedrich W. Affolter
- Published in print:
- 2020
- Published Online:
- September 2020
- ISBN:
- 9780190874551
- eISBN:
- 9780190874582
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190874551.003.0019
- Subject:
- Psychology, Developmental Psychology
This chapter examines the importance of transitional justice as a measure to provide remedy for children in cases of massive societal violence, such as armed conflicts, international crimes, or ...
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This chapter examines the importance of transitional justice as a measure to provide remedy for children in cases of massive societal violence, such as armed conflicts, international crimes, or atrocities. It presents different transitional justice initiatives and how they have engaged children, briefly reviewing child-sensitive approaches to criminal accountability, truth-seeking initiatives, reparations programs, and institutional reforms. It recommends that children and young people be consulted and engaged when transitional justice mechanisms and processes are implemented, while protecting their best interests at all times. It highlights the importance of educational reform as a key institutional reform in furthering transitional justice. The chapter proposes that educational reform be positioned as a key instrument for transitional justice, as it plays an important role in children’s recovery, contributing to their cognitive and psychological development while concomitantly advancing social cohesion and long-term peacebuilding.Less
This chapter examines the importance of transitional justice as a measure to provide remedy for children in cases of massive societal violence, such as armed conflicts, international crimes, or atrocities. It presents different transitional justice initiatives and how they have engaged children, briefly reviewing child-sensitive approaches to criminal accountability, truth-seeking initiatives, reparations programs, and institutional reforms. It recommends that children and young people be consulted and engaged when transitional justice mechanisms and processes are implemented, while protecting their best interests at all times. It highlights the importance of educational reform as a key institutional reform in furthering transitional justice. The chapter proposes that educational reform be positioned as a key instrument for transitional justice, as it plays an important role in children’s recovery, contributing to their cognitive and psychological development while concomitantly advancing social cohesion and long-term peacebuilding.
Jonathan VanAntwerpen
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199364862
- eISBN:
- 9780199364893
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199364862.003.0004
- Subject:
- Political Science, International Relations and Politics
Within the brief history of the field of transitional justice, South African renderings of reconciliation both loom large and occupy an exceptional and somewhat unstable place. This chapter, ...
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Within the brief history of the field of transitional justice, South African renderings of reconciliation both loom large and occupy an exceptional and somewhat unstable place. This chapter, critically examines this placement by considering, first (and all too partially), the history of reconciliation in South Africa and the place of the South African TRC within the recent history of truth commissions, and second, the ambivalent uptake of the language of reconciliation on the part of elite international actors within the field of transitional justice, with a particular view to the International Center of Transitional Justice, founded in the aftermath of the South African TRC and the world’s largest nongovernmental organization devoted specifically to the theory and practice of transitional justice.Less
Within the brief history of the field of transitional justice, South African renderings of reconciliation both loom large and occupy an exceptional and somewhat unstable place. This chapter, critically examines this placement by considering, first (and all too partially), the history of reconciliation in South Africa and the place of the South African TRC within the recent history of truth commissions, and second, the ambivalent uptake of the language of reconciliation on the part of elite international actors within the field of transitional justice, with a particular view to the International Center of Transitional Justice, founded in the aftermath of the South African TRC and the world’s largest nongovernmental organization devoted specifically to the theory and practice of transitional justice.
Christine Bell, Colm Campbell, and Fionnuala Ní Aoláin
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780199204939
- eISBN:
- 9780191695599
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199204939.003.0008
- Subject:
- Law, Human Rights and Immigration
This chapter explores the interplay of two seemingly contradictory international law trends impacting on transitional justice discourses. The first trend is the appearance of transitional justice as ...
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This chapter explores the interplay of two seemingly contradictory international law trends impacting on transitional justice discourses. The first trend is the appearance of transitional justice as being an attempt to extend the reach of international law, and the other is its shift away from international law as a restraining force and its representation as being susceptible or subject to the interpretations and retrenchment of the hegemonic power which is the United States. The chapter also examines the relationship of the exercise of hegemonic power to international law.Less
This chapter explores the interplay of two seemingly contradictory international law trends impacting on transitional justice discourses. The first trend is the appearance of transitional justice as being an attempt to extend the reach of international law, and the other is its shift away from international law as a restraining force and its representation as being susceptible or subject to the interpretations and retrenchment of the hegemonic power which is the United States. The chapter also examines the relationship of the exercise of hegemonic power to international law.
Alexander Laban Hinton
- Published in print:
- 2018
- Published Online:
- May 2018
- ISBN:
- 9780198820949
- eISBN:
- 9780191860607
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198820949.003.0001
- Subject:
- Law, Public International Law, Criminal Law and Criminology
This introduction, following a Preface describing in narrative form the experience of Uncle San (a fictional Cambodian villager featured in a graphic/comic booklet produced by the Khmer Institute of ...
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This introduction, following a Preface describing in narrative form the experience of Uncle San (a fictional Cambodian villager featured in a graphic/comic booklet produced by the Khmer Institute of Democracy (KID) for tribunal outreach—I also refer to him and the KID booklet throughout my book), describes argument of the book and provides a basic overview of the court.The first half of the introduction describes the “transitional justice imaginary,” a set of utopian democratization and human rights ideals suggesting the tribunal will transform authoritarian regimes to liberal democratic societies. The “justice facade” is a metaphor for the manifestations of this imaginary in transitional justice settings like Cambodia. After unpacking the assumptions of this imaginary (teleology, progressivism, universalism, globalism, and binary essentialism) and contextualizing it within the transitional justice (and related democratization, peacebuilding, and human rights) literatures, I offer an alternative approach, phenomenological transitional justice, which focuses on lived experience and practice enmeshed in contexts of power. To understand if international justice has a point in transitional justice settings like Cambodia, I argue it is necessary to step behind the facade to look at its meaning in everyday life and practice.Less
This introduction, following a Preface describing in narrative form the experience of Uncle San (a fictional Cambodian villager featured in a graphic/comic booklet produced by the Khmer Institute of Democracy (KID) for tribunal outreach—I also refer to him and the KID booklet throughout my book), describes argument of the book and provides a basic overview of the court.The first half of the introduction describes the “transitional justice imaginary,” a set of utopian democratization and human rights ideals suggesting the tribunal will transform authoritarian regimes to liberal democratic societies. The “justice facade” is a metaphor for the manifestations of this imaginary in transitional justice settings like Cambodia. After unpacking the assumptions of this imaginary (teleology, progressivism, universalism, globalism, and binary essentialism) and contextualizing it within the transitional justice (and related democratization, peacebuilding, and human rights) literatures, I offer an alternative approach, phenomenological transitional justice, which focuses on lived experience and practice enmeshed in contexts of power. To understand if international justice has a point in transitional justice settings like Cambodia, I argue it is necessary to step behind the facade to look at its meaning in everyday life and practice.
