Transitional Justice Issues Research Articles

El proceso de Justicia Transicional en Uruguay

El presente trabajo pretende dar una respuesta fundamentada al cuestionamiento relacionado con los crímenes acaecidos en el momento que termina un conflicto armado y mediante la forma de la justicia de transición se retoma el camino a la paz; esto analizando en el entorno de Uruguay.
 El tema de justicia de transición es muy amplio porque pretende reparar a las víctimas y dar respuesta a muchas interrogantes sobre la verdad y la justicia, con el objetivo añadido de luchar contra la impunidad y devolver las bases para la pacífica convivencia en sociedad.
 Los procesos de JT, que deambulan entre la política real y los principios de justicia, tienen que resolver: ¿Cómo responder a las más graves injusticias manteniendo un sesgo de justicia en la reacción?
 Los modelos de transición, aunque puedan estar sujetos al control de cortes internacionales de Derechos Humanos, no pueden ser estandarizados, porque ellos varían y dependen de las características de una sociedad y de muchas variables que pueden determinar que en situaciones similares se puedan adoptar modelos de transición opuestos.
 No existe un sistema de justicia de transición aplicable como modelo de solución para todos los casos. El tipo de justicia de transición puede variar con el tiempo, y para ello guarda estrecha relación con las relaciones de fuerza entre la actual y la antigua elite en el poder.
 Sin embargo, la justicia de transición no es solo un hecho local, porque ella está sometida a controles de órganos internacionales encargados de la protección de los Derechos Humanos como la Corte Interamericana de Derechos Humanos y órganos internacionales como la Corte Penal Internacional encargados de la persecución penal de algunos crímenes considerados de especial gravedad (Olasolo / Galain, 2013, pp. 1261-1314).
 Por eso, una sociedad no es totalmente libre para adoptar un modelo basado en el olvido y ausencia de investigación y castigo, por ejemplo, mediante una amnistía general e irrestricta; y por eso, algunos principios adquieren validez universal, como por ejemplo, el deber de reparación de las víctimas, el deber de investigar para conocer lo sucedido (verdad) y el deberde memoria (Reyes Mate, 2011).
 Si analizamos el caso uruguayo, podemos advertir que la justicia de transición no es una instancia exclusivamente local o que pueda ser resuelta por los ciudadanos según principios democráticos de resolución de conflictos graves, sino que ella se enmarca en diversos procesos o procedimientos que permanecen ligados a determinadas obligaciones estatales con la comunidad internacional y a la agenda de los Derechos Humanos.

Transitional Justice Mechanisms and Memory Narratives

Memory and Transitional Justice in Argentina and Uruguay: Against Impunity. By Francesca Lessa. New York: Palgrave Macmillan, 2013. 336 pp., hardcover (ISBN-13: 978-1-137-26938-6). Francesca Lessa's book is a welcome addition to a burgeoning literature in international relations focusing on memory and its politics. For a long time, work within the field of Memory Studies has primarily remained the purview of the humanities, while legal mechanisms of transitional justice post-conflict have been addressed by the social sciences. The main contribution of Lessa's book is in bringing these literatures together to focus on how transitional justice and memory narratives are interrelated. The book utilizes an interdisciplinary framework of “critical junctures,” these being key discursive turning points at which one can identify changes in both transitional justice mechanisms and memory narratives. While the overarching argument—that there is a mutually shaping constitutive relationship between memory and transitional justice—at first seems obvious, the way this relationship is traced is where this book truly shines. Relying on several years' worth of field work and interviews in Argentina and Uruguay, as well as thorough analysis of documents and their contexts, Lessa is able to delve deep into the nuances of these two cases. The book will be useful to scholars who are familiar with transitional justice issues in Argentina and Uruguay, and accessible to scholars who are unfamiliar with these cases. Lessa identifies four types of critical junctures that she pinpoints in both the Argentinian and Uruguayan cases, including the political moment (changes …

Different Paths of Transitional Justice in the Czech Republic, Slovakia and Poland

AbstractThis article deals with issues of transitional justice in selected Central European countries. The relationship between the mode of democratic transition and the mechanisms and pace of transitional justice processes is discussed. The main focus is on the analysis and comparison of transitional justice issues in three Central European countries – the Czech Republic, Poland and Slovakia. The authors conclude that the mode of democratic transition is not as important as other political factors, such as the presence or absence of leftist parties in the government.

Which Approach to Justice in Colombia under the Era of the ICC

How could Colombia deal with the overwhelming cruelty of mass atrocities committed during its ongoing conflict? This article intends to thoroughly explain the strategies implemented in Colombia to deal with the issues of transitional justice in an ongoing conflict and to illustrate the state of the art of the approaches to justice. In order to do so, we will show the limits of the retributive justice approach at both the national and the international level and propose the applicability of the restorative justice approach in dealing with mass victimisation. This debate becomes even more complex due to the shadow of the International Criminal Court (ICC), which has exerted great influence in implementing a dominant retributive oriented approach to the expenses of other ways of doing justice.

Transitional Justice in the Arab Countries: Opportunities and Challenges

My remarks will highlight some of the main factors that affect how we can consider transitional justice issues in the Arab countries that have undergone transition. I will then briefly reflect on how the five components of transitional justice have been implemented in these countries. FACTORS AFFECTING THE TRANSITIONAL JUSTICE DISCOURSE There are five factors that should be taken into account when considering transitional justice issues in the Arab countries that have undergone some change. The first factor to take into account is the manner in which the transitions took place. Peaceful protest led by young men and women was initially the way to bring about change in Tunisia and Egypt. Libya provided a different model with the foreign military intervention and the determination of the male fighters leading to the toppling of the dictatorship. The result is that one of the major challenges in Libya today is the weapons scattered in the hands of young men, with different armed groups not always operating under the control of the National Transitional Council. In Yemen the desires of the youth and powerful tribal leaders converged, and eventually led to the handover of power by President Saleh to the vice-president. In Bahrain, while the protest continues to be peaceful, it is met with force. The second factor is the role of social media. There is no doubt that social media played a significant role among the educated middle class and youth, particularly students and young professionals. But this was not the case with the poorer and illiterate sectors of society. The result is that the increased space for liberty achieved by the youth allowed Islamic movements which were previously outlawed to come to power through the ballot box. The appeal of these movements came from two main factors. First, it was their ability to organize themselves and address the social needs of a large part of the population through the alternative social services they have been able to provide for decades while corrupt regimes were destroying the middle class and pocketing the national budget. Second, the oppression inflicted by the previous regimes on members of the Islamic movements through torture, unfair trial, censorship, and above all forging elections for decades, gave these groups a level of legitimacy that contributed to their winning of the first free and fair elections conducted in Tunisia and Egypt. The problem is that while many of the emerging leaders of today are yesterday's victims of human rights violations, this is not a guarantee that they can rule on the basis of human rights principles. Understanding how the norms operate while making policy decisions will be key to fostering the democratic nature of the emerging governing structures. Human rights dialogue with these emerging groups is essential. The third factor is the key role of satellite television channels in promoting or even directing the protest. However, the exact role they played is yet to be fully understood and objectively analyzed. Through the way the coverage and debates have taken place, some scenarios were advanced, particularly with regard to military intervention. We see this today with the comparisons being made between Libya and Syria. Also, the coverage was not even-handed, with some of the protest in countries like Bahrain receiving less attention. The fourth factor is the role played by the military in the region, which has led to different scenarios for change. The role played by the army in Tunisia to protect the protestors and facilitate the power change remains unique. In Egypt, while the military initially stayed on the fence and then became an element of change, today they are unhelpfully clinching to power. This is complicating the transition and making the situation in Egypt closer to that of Chile and Argentina, where the military held onto their privileged status for a long time. In Syria the army is largely on the side of the government and a main instrument of oppression, and we are yet to see major defections. …

The Legal Framework of Transitional Justice

The Legal Framework of Transitional Justice

Germany's genocide of the Herero: Kaiser Wilhelm II, his general, his settlers, his soldiers

In 1904, the indigenous Herero people of German South West Africa (now Namibia) rebelled against their German occupiers. In the following four years, the German army retaliated, killing between 60,000 and 100,000 Herero people, one of the worst atrocities ever. The history of the Herero genocide remains a key issue for many around the world partly because the German policy not to pay reparations for the Namibian genocide contrasts with its long-standing Holocaust reparations policy. The Herero case bears not only on transitional justice issues throughout Africa, but also on legal issues elsewhere in the world where reparations for colonial injustices have been called for. This book explores the events within the context of German South West Africa (GSWA) as the only German colony where settlement was actually attempted. The study contends that the genocide was not the work of one rogue general or the practices of the military, but that it was inexorably propelled by Germany's national goals at the time. The book argues that the Herero genocide was linked to Germany's late entry into the colonial race, which led it frenetically and ruthlessly to acquire multiple colonies all over the world within a very short period, using any means available. Jeremy Sarkin is Chairperson-Rapporteur of the United Nations Working Group on Enforced or Involuntary Disappearances, and is at present Distinguished Visiting Professor of Law at Hofstra University in Hempstead, New York. He is also an Attorney of the High Court of South Africa and of the State of New York. A graduate of the University of the Western Cape and of Harvard Law School he has been visiting professor at several US universities where he has taught Comparative Law, International Human Rights Law, International Criminal Law and Transitional Justice Southern Africa rights (South Africa, Botswana, Lesotho, Swaziland, Namibia and Zimbabwe): University of Cape Town Press/Juta

Exploring Home-Grown Transitional Justice and Its Dilemmas: A Case Study of the Historical Enquiries Team, Northern Ireland

There is a growing recognition of the need for home-grown solutions to transitional justice issues rather than a one-size-fits-all approach. In part, this reflects the commonsense view that without local ownership of transitional justice processes, there is unlikely to be domestic buy-in and sustainability. Despite its growing popularity, the concept of local or home-grown transitional justice is ambiguously defined. It is frequently insufficiently spelt out, used interchangeably and applied uncritically. This article uses a case study of the Historical Enquiries Team (HET) to explore the concept of home-grown transitional justice and posit preliminary questions. The HET is a bespoke unit set up by the Police Service of Northern Ireland (PSNI) to re-examine deaths attributable to the conflict in Northern Ireland and answer the unresolved questions of families of conflict victims. The work of the HET is unique and innovative in the world of policing. In transitional justice terms, it breaks new ground as a micro-level information-recovery mechanism. This article argues that the current euphoria for ‘all that is local’ may be in danger of overlooking important considerations, such as who are ‘the locals’ and whose interests are being served. It raises further questions about issues of ownership, trust and legitimacy. The article concludes that there needs to be clarification of concepts, as well as more careful evidence-based analysis of what constitutes home-grown transitional justice and what such a process might conceal.

Group Identities and Theories of Justice: An Experimental Investigation into the Justice and Injustice of Land Squatting in South Africa

In land controversies around the globe, the unfairness of the past confronts the fairness of the present as alternative conceptions of justice collide and conflict. South Africa represents a useful case for investigating such issues of transitional justice since the country faces a massive problem of squatting and land grabbing. Using a formal experiment embedded within a 2004 national survey of South Africans, I investigate the means by which ordinary people adjudicate conflicts among alternative principles of justice. The findings indicate that South Africans of every race judge evictions as more fair when squatters are extended procedural justice. Moreover, the group identities of blacks significantly structure their justice judgments, weighting some types of justice more heavily than others. Thus, this analysis yields important insights into the connection between group identities and how citizens apply multidimensional theories of justice to conflicts over historical land injustices.

Civil Society and Transitional Justice in Liberia: A Practitioner's Reflection from the Field

Liberia presents an important opportunity for civil society, national government and the international community to cooperate in rebuilding a post-conflict country in a way that addresses the essential and elemental basis for building a just and durable peace. In other words, the country is poised to be a potential ‘success story,’ one that could set new trends in how African people negotiate a post-conflict coexistence on the basis of shared values, popular participation and economic and social justice. The role of civil society in particular in this process of reconstruction, and specifically issues of transitional justice, is central to ensuring that policies have broad input amongst the Liberian population, all of whom have been directly impacted by the war. This article outlines the country's trajectory from conflict to peace, the challenges of addressing the crimes of the past, the risks to newly established democratic institutions posed by a truncated or incomplete transitional justice program and the role of Liberian civil society both broadly in a newly democratic Liberia as well as specifically in regards to the establishment and functioning of the Truth and Reconciliation Commission.

The misuses of manipulation: The failure of transitional justice in post-communist Hungary

Hungary, like most countries in the former Soviet bloc, made numerous attempts to carry out various types of transitional justice, but the process was ultimately unsuccessful. This article argues that transitional justice in Hungary has been used primarily for political manipulation and introduces the main types of such manipulation. A discussion of the two main components of Hungarian transitional justice, retroactive criminal legislation and screening based on secret police files, illustrates the failure of this process. The article concludes by offering some tentative explanations for this failure, finding it in the sharp ideological division within the political elite and in the population's indifference towards issues of transitional justice.

Dealing with the past and transitional justice: building peace through accountability

Based on her experience as a member of the South African and the Sierra Leonean truth and reconciliation commissions, the author formulates guiding principles and looks at the circumstances in which a truth and reconciliation commission constitutes an appropriate instrument to deal with transitional justice issues. The author also identifies possible contributions that truth and reconciliation commissions can make during a period of transition.

Is Spain Recovering its Memory? Breaking the Pacto del Olvido

This article considers the ongoing effort by campaigners in Spain to gain official recognition of the human rights crimes of the Franco dictatorship. Despite estimates placing the number of Republican supporters summarily executed and buried in unmarked graves during and after the civil war at 30,000, demand for an official investigation has only surfaced in the past five years. The article offers an explanation both for the longevity of Spain's unspoken pacto del olvido (pact of forgetting) and for its recent unraveling, in the context of contemporary debates involving issues of transitional justice and memory politics.

Divergent responses to a common past: Transitional justice in the Czech Republic and Slovakia

This article addresses the question of why, despite having shared a communist regime and a revolution against it, the Czechs and Slovaks have dealt differently with that regime's former high officials and secret police agents, files, and collaborators. I argue that this divergence challenges theories of transitional justice put forward by such scholars as Samuel Huntington and John P. Moran, who respectively identify transition type and levels of regime repression as the key factors shaping a new regime's response to its predecessor. I propose that a stronger influencing factor is the level of the preceding regime's legitimacy, as indicated during the communist period by levels of societal cooptation, opposition, or internal exile, and during the post-communist period by levels of elite re-legitimization and public interest in “decommunization.” In drawing this link between past and more recent developments, I also argue that struggles over transitional justice issues should not be considered exclusively as the “politics of the present.” Finally, I examine the cases of Poland, Hungary, and Romania to assess the broader applicability and limits of my theory.