Oxford Transitional

Justice Research

Taking Stock of Transitional Justice

An international conference critically engaging with the academic thinking on

and practical implementation of transitional justice

Social Sciences Building, Manor Road

University of Oxford
26-28 June 2009

1
 Oxford Transitional Justice Research

Conference Committee and Contact Details

Naseem Badiey naseem.badiey@pmb.ox.ac.uk

Lydiah Bosire lydiah.kemunto.bosire@stx.oxon.org
Paul Clark paul.kingsley.clark@gmail.com
Phil Clark philip.clark@csls.ox.ac.uk
Rinaldo Cristofori rinaldo.cristofori@gmail.com
Danielle Granville danielle.granville@bnc.ox.ac.uk
Teddy Harrison teddy.harrison@keble.ox.ac.uk
Paul Honey paul.honey@education.ox.ac.uk
Janet Jobson janet.jobson@sant.ox.ac.uk
Briony Jones Briony.Smith@postgrad.manchester.ac.uk
Paul Kadetz paul.kadetz@green.ox.ac.uk
Josiah Kaplan josiah.kaplan@stx.ox.ac.uk
Christopher Mahony christopher.mahony@keble.ox.ac.uk
Nicola Palmer nicola.palmer@law.ox.ac.uk
Julia Paulson julia.paulson@gtc.ox.ac.uk
James Upcher james.upcher@law.ox.ac.uk

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 Taking Stock of Transitional Justice- International Conference 2009
FRIDAY 26 June

13:00- Registration
14:00

14:00- Welcome Address

14:30
Prof. Timothy Endicott, Dean of the Law Faculty, University of Oxford

Dr. Phil Clark, Research Fellow in Courts and Public Policy, Centre for Socio-Legal Studies,
and Convenor of Oxford Transitional Justice Research, University of Oxford

14:30-
16:00 Opening Plenary: STEPPING BACK FROM TRANSITIONAL JUSTICE

Prof. Ruti Teitel - Transitional Justice Globalized

(Ernst C. Stiefel Professor of Comparative Law, New York Law School)

Prof. Leigh A. Payne - The Justice Balance: Transitional Justice Reconsidered

(Professor of Sociology, Latin American Centre, University of Oxford)

Dadimos Haile - Rethinking the Transitional Justice Discourse and Activism

(Head of the International Justice and Human Rights Programme, Avocats Sans Frontières)

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16:00- Session 1: Normative Session 2: The Legitimacy of Session 3: Victim-Centred Session 4: Re-examining
18:00 Foundations of Transitional International Prosecution Transitional Justice Reconciliation
Justice

Prof. Larry May -Transitional Lorna McGregor - The Rule of Law
Justice and the Just War
Tradition.
(W. Alton Jones Professor of
Philosophy, Department of
Philosophy, Vanderbilt
University)
Shaina P. Wang- Transitional and Sierra Leone
Justice as Retribution - Revisiting
its Kantian Roots
(Department of
Government, University of
Essex)
Dr. Pablo de Greiff –
Theorizing Transitional Justice
(Director, Research Unit,
International Center for
Transitional Justice)
Dr. Daniel R Mekonnen-
and the ICC (title to be confirmed)
(International Legal Advisor, Redress)
Dr Alison Bisset - Coordinating the
Operations of Truth Commissions and
Domestic Criminal Courts under the Rome
Statute Regime: Lessons from East Timor
(School of Law, University of
Reading)
Morten Bergsmo –Title to be confirmed
(Senior Researcher, PRIO, Norway)
Nicola Palmer – A Time of Transfer:
Rule 11bis and Post-Genocide Justice in
Rwanda
(OTJR Executive Committee
Member, DPhil candidate in Law,
University of Oxford)
Tsepho Madlingozi- The
Disempowering Power of ‘Transitional
Justice’: Case Study of South Africa’s
Khulumani Support Group
(National Advocacy Coordinator,
Khulumani, South Africa)
Prof. David A. Mendeloff- Trauma
and Vengeance: Assessing The
Psychological and Emotional Effects of
Post-Conflict Justice
(Director, Centre for Security and
Defence Studies, Assistant Professor
of International Affairs, The
Norman Paterson School of
International Affairs, Carleton
University)
Hugo van der Merwe- Delivering
Justice during Transition: Access to Justice
and/or Transforming Justice
(Transitional Justice Programme
Judith Renner- Hegemonizing
Transitional Justice: A Laclauian
Approach to Reconciliation
(Ludwig-Maximilians-
Geschwister-Scholl-Institute for
Political Science, Department of
International Relations, University
of Munich)
Prof. Dean E. Peachey- The
Elusive Quest for Reconciliation in
Northern Uganda
(Visiting Professor in Transitional
Justice
Global College, University of
Winnipeg, Canada)
Briony Jones- Reconciliation’s
Citizen: An Exploration of Post-
conflict Citizenship in the Multi-ethnic
district of Brčko, Bosnia-Herzegovina.
(OTJR Student Chair, Doctoral
Candidate, University of

4
 Revisiting The Conceptual Manager, Centre for the Study of Manchester)
Framework Of Transitional Violence and Reconciliation, South
Justice In The Context Of Africa) Roman David- Do Lustration
Ongoing Conflicts: A Need For Systems Contribute to Justice and
A Paradigm Shift? Reconciliation? Evidence from the
Czech Republic, Hungary, and Poland
(Post-doctoral Researcher,
Human Right Centre, (Lecturer in Politics, Newcastle
University of Ghent) University)

18:00- Opening of the ‘Art in Conflict’ exhibition

20:00
Joyce Kalema – Saved/Light- Conflict in the Democratic Republic of Congo

Niyi Olagunu- Images - Nigeria

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 SATURDAY 27 June

8:30- Morning Coffee and viewing of the ‘Art in Conflict’ exhibition

9:30

9:30-
11:00 Second Plenary: IT’S TIME TO MOVE ON- Unpacking the Amnesty Debate

Dr. Louise Mallinder- Evolution Of International Approaches To Amnesty Laws

(Law School, Queen’s University Belfast)

Prof David Anderson – Truth and Reconciliation in Kenya: Courtroom or Confessional?

(Director of the Centre for African Studies, University of Oxford)

Dr. Antje du Bois-Pedain- Post-conflict Accountability and Criminal Justice: Appreciating the Complexities
(University Lecturer, Faculty of Law, Fellow of Magdalene College, Cambridge)

11:00- Session 5: Domestic Prosecutions Session 6: Community Shaping of
13:00 and Transitional Justice.
Prof. David Sugarman - The
Human Rights Turn In 'Post-
Pinochet' Chile
(Professor of Law and Director
of the Centre for Law and
Society, Lancaster University)
Memory
Dr. Elizabeth Oglesby- Historical
Memory and the Figure of the Victim in
Postwar Guatemala
(Latin American Studies, University
of Arizona)
Kurt Mundorff- Reconciliation
Session 7: Challenging Truth and the
Establishment of a New Political
Regime
Anna V. Dolidze- Truth and
Reconciliation Process as a Method for
Transitional Justice in Georgia
(Human Rights Lawyer, Republic of
Georgia, Board Member Center for
Reparation of Victims of Repression
Session 8: Institutional Reform
Lars Waldorf- Linking
Transitional Justice and DDR
(Director, Centre for
International Human Rights;
Lecturer, MA in
Understanding & Securing
Human Rights, Institute of
Commonwealth Studies,

6
Dr. Cheah Wui Ling - A legal Canada? The Indian Residential by the Soviet Regime) University of London)
and historical study of post-WWII Schools Truth and Reconciliation Process
Singapore Trials: Death and suffering and Canada’s Failure of Collective Francesca Pizzutelli - Moving away Prof. Adam Czarnota-
on the “hell-ships” Memory. from the South African model: Amnesties Lustration, decommunisation and
and prosecutions in the practice of 38 truth the rule of law
(Assistant Professor of Law, (PhD candidate, Faculty of Law, commissions
Faculty of Law, National University of British Columbia) (Professor and Co-director
University of Singapore) (Assistant Legal Adviser - Center for Interdisciplinary
Holly E. Porter- Locating Justice: International Justice Project,Amnesty Studies of Law University of
Prof. Jo-Marie Burt - Guilty as Community-based approaches in northern International, United Kingdom) New South Wales, Sydney,
Charged: The Trial and Prosecution of Uganda Australia)
former Peruvian President Alberto Filipa Raimundo- Should we talk about
Fujimori for Human Rights (Development Studies Institute, post-transitional justice? Lessons from the Dr. Antoine Buyse- Importing
Violations London School of Economics, and Iberian and Central European democracies International Human Rights Law
Former Technical Advisor on in a Post-Conflict Society: the
(Associate Professor of Political Community Reconciliation, (PhD Researcher, European Experience of the Bosnian Human
Science, George Mason Concerned Parents Association- University Institute, Florence, Italy) Rights Chamber
University) Uganda)
(Assistant Professor,
Prof. Roberto Gargarella - Dr. Patricia Lundy- Exploring Netherlands Institute of
International Criminal Law and Gross ‘Bottom-Up’ Transitional Justice: A Human Rights (SIM), Utrecht
Violations of Human Rights Case Study of the Ardoyne University)
Commemoration Project, Northern
(Professor of Constitutional Law, Ireland Paul Clark – Transitional Justice
Universidad Torcuato Di Tella, and Institutional Design: Towards a
Argentina) (Department of Sociology Structural Theory
University of Ulster
Jordanstown, Newtonabbey, (Public Law Team, Law
Northern Ireland) Commission, London)

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13:00- Lunch
14:00

14:00-
15:30 Third Plenary: IT’S ALL JUST POLITICS

Dr. Victor Peskin- “Trials of Cooperation,” State Defiance, and the Changing Politics of Global Justice from the Yugoslavia and Rwanda Tribunals to the
International Criminal Court
(Assistant Professor, School of Global Studies, Arizona State University)

Barney Afako- The Politics of Local Justice in Northern Uganda

(Legal Advisor to the Ugandan peace negotiations)

Dr. Suzannah Linton- Not just about atrocities: Dealing with the legacies of the past in Asia
(Associate Professor, The University of Hong Kong)

15:30- Tea and Coffee

16:00

16:00- Session 9: Enacting Transitional
18:00 Justice: Reparations and Political
Apology
Claudia Gazzini- Libya: a success
story for Transitional Justice?
(DPhil candidate, St. John’s
College, Oxford)
Session 10: Prosecutions and
Sentencing
Neha Jain- Prosecutorial Discretion
and the Promise of Internationalised
Criminal Trials
(Research Fellow, Max Planck
Institute for Foreign and
Session 11: Conceptualising "Local"
Approaches To Transitional Justice
Felix Ndahinda- Making Sense of
Local Justice in the African Great Lakes
Region: A Comparative Overview
(PhD Candidate, Faculty of Law,
University of Tilburg)
Session 12: Negotiating Justice in
Transition
Christopher Lamont- Law,
Politics and Legitimacy: Negotiating
State Co-operation with the
International Criminal Tribunal for the
former Yugoslavia

8
Katherine Liao – Title to be
confirmed
(Head of Northern Ugandan
Office, UN Office of the High
Commissioner for Human
Rights)
Michel-André Horelt- Searching
for the ritual in political apologies: A
performance based approach to the
analysis of political apologies
(PhD Candidate & Research
Fellow, Department of
International Relations
Geschwister-Scholl-Institute for
Political Sciences, Ludwig-
Maximilians-University of
Munich)
International Criminal Law;
DPhil candidate in Law,
University of Oxford)
Robert Vincent -Reform of the
International Criminal Tribunals and
the Special Tribunal for Lebanon
(Former Registrar of the Special
Court for Sierre Leone)
Prof. Ralph Henham-
International Sentencing as a Force for
Achieving Peace through Justice
(Professor of Law, Nottingham
University)
Maria Varaki- Of Justice and
Other Demons: Legal -Policy and
Jurisprudential dilemmas in the
Interests of Justice.
(PhD candidate, Irish Centre for
Human Rights, National
University of Ireland, Galway)
Nevin T. Aiken- Decentralized
Transitional Justice in Northern Ireland:
Assessing the Contributions to Intergroup
Reconciliation
(Doctoral Candidate, SSHRC
Doctoral Scholar and CCHS Human
Security Fellow
Department of Political Science,
University of British Columbia)
Abdulmumini A. Oba- Oputa Panel:
Nigeria’s Scuttled Experiment With
Transitional Justice
(Senior Lecturer, Faculty of Law,
University of Ilorin, Ilorin, Nigeria.)
Martien Schotsmans- The transitional
justice gap in Sierra Leone : is there a need
to fill it an can tradition-based justice do the
job ?
(Researcher, Human Rights Centre,
University of Ghent-Belgium)
(Postdoctoral Fellow, Transitional
Justice Institute, University of
Ulster, Northern Ireland)
Dr. Jernej Letnar Černič-
Responding to Crimes Against
Humanity committed in Slovenia after
the Second World War
(Phd Graduate of University of
Aberdeen, Senior Researcher at
Law Institute, Ljubljana, Slovenia)
Liz Evenson- Peace and Justice:
Lessons from the Field
(Counsel, International Justice
Program, Human Rights Watch)
Herman Von Hebel –Lessons
learnt from International Tribunals
(Registra of the Special Court for
Sierre Leone)
Dr. Debidatta Aurobinda
Mahapatra and Dr. Seema
Shekhawat -Transitional Justice in
Kashmir: An Urgent Need for Durable
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 Peace

(Post-Doctoral Research Fellows,

University of Mumbai)

19:30- Conference Dinner at Wadham College

22:00

SUNDAY 28 June 2009

8:30-
9:00 Morning Tea and Coffee

09:00
– Fourth Plenary: JUSTICE IS A LOCAL ISSUE
10:30

Prof. Kieran McEvoy – Truth Recovery and the Local Construction of Transitional Justice Knowledge: Lessons from Northern Ireland
(Professor of Law and Transitional Justice at the School of Law, Queen’s University)

Stephen Oola- Cosmetic Justice: Local Perceptions towards the International Criminal Courts’ Involvement in Northern Uganda and the region
(Lawyer and Lead Researcher on Transitional Justice, Refugee Law Project, Faculty of Law, Makerere University Kampala)

Dr. Wendy Lambourne- Outreach, Inreach and Local Ownership of Transitional Justice: Cambodian Participation in the Khmer Rouge Tribunal
(Senior Lecturer and Academic Coordinator, Centre for Peace and Conflict Studies, University of Sydney, Australia)

10
10:30 Session 13: Power - Actors Session 14: Local Approaches To Session 15: Nation Building, Social Session 16: Memories In The
– And Agency Transitional Justice – Field-Based Transformation and Post-Conflict Making
12:30 Analyses Reconstruction
Shana Tabak- Women in Diana Batchelor- Moving On? The
Transition: Challenges of Laurens Bakker- From dictatorship Role of Collective Amnesia in Lebanon’s
Transitional Justice & Female to reform. Transfiguring land access in Thomas K Crick - Local Justice Transitional Justice Strategy.
Combatants in Colombia Indonesia Promotion as Nation Building: Current
efforts in Liberia (Lebanese Association for Cultural
(Georgetown University (Van Vollenhoven Institute, Leiden and Artistic Exchange [UMAM
Law Center, Washington) University) (Associate Director, Conflict D&R], Lebanon)
Resolution Programme, The Carter
Dr. Frédéric Mégret - Bert Ingelaere- Life (Stories) In Centre) Eadaoin O'Brien- The Exhumation
Rehabilitation of 'traitors' as Transition: A Methodological Approach of Mass Graves and the Memorialisation
'resisters': a neglected theme in To Study Political Transition And Lauren McAlister- Conceptualizing the Process: A Critical Analysis of the
transitional justice Transitional Justice From Below “other”- transitional justice in the divided Transition from Isolated Victim Memory
community of Mostar to the Collective Memory of a Nation.
(Assistant Professor of (Institute of Development Policy
Law, the Canada Research and Management (IOB), University (Monitoring and Procurement Officer, (Doctoral Candidate, Government
Chair on the Law of of Antwerp) United Nations Volunteer, UNDP of Ireland Postgraduate Scholar,
Human Rights and Legal Upper Drina Regional Development Irish Centre for Human Rights,
Pluralism, McGill Programme, Bosnia-Herzegovina) National University of Ireland,
University) Lieselotte Viaene - The internal logic Galway
of the cosmos as ‘justice’ and Clara Sandoval – Legal Change and Galway, Ireland.)
Susan Harris Rimmer - ‘reconciliation’: Maya Q’eqchi’ perceptions Transitional Justice: The Case of Columbia
Reconceiving Refugees and IDPs from post-conflict Guatemala Danielle Granville- The role of
as Transitional Justice Actors (Lecturer in Law and Co-Director of memory in Transitional Justice
LLM in Human Rights Law,
(Building Democracy and (PhD Researcher, Human Rights University of Essex) (D.Phil Candidate, Department of
Justice After Conflict Centre, Ghent University, Belgium) Politics and International Relations,

11
 Centre for International University of Oxford)
Governance and Justice Prof. Mwesiga Baregu – Title to Binaifer Nowrojee –Title to be
Regulatory Institutions be confirmed confirmed
Network, College of Asia
and the Pacific, RSPAS, (Professor of Political Science, (Clinical Instructor and Lecturer in
The Australian National University of Dar es Salaam, Law, Human Rights Programme,
University, Canberra) Tanzania) Harvard Law School; Open Society
Justice Institute)
Brigitte Mapendo- Women Dr. Phil Clark – When Local and
and Transitional Justice- What Global Justice Meet: Field Findings from Morris Kiwinda Mbondenyi- The
choice between peace and justice? Rwanda, Uganda and the Democratic road to post-conflict reconstruction in Kenya:
Republic of Congo An evaluation of the country’s approach to
(Director, Africa Initiative justice, land and institutional reforms after
Programme, Democratic (Research Fellow in Courts and the 2007 post-elections violence
Republic of Congo) Public Policy, Centre for Socio-
Legal Studies, University of (LLB (Moi); LLM, LLD (University of
Oxford) South Africa)

12:30- Final Plenary: SHAPING THE WAY FORWARD

13:30
“Debates in the Foyers” - an audio-visual reflection of the conference

Dr. Rama Mani, Department of Politics and International Relations, University of Oxford

Dr. Phil Clark, Centre for Socio-Legal Studies, University of Oxford

13:30- Conclusion and thanks

13:45

12
 Taking Stock of Transitional Justice

An international conference critically engaging with the academic thinking on and

practical implementation of transitional justice

Opening Plenary: STEPPING BACK FROM TRANSITIONAL JUSTICE ........ 17

Prof. Ruti Teitel - Transitional Justice Globalized..................................................... 17
Prof. Leigh A. Payne - The Justice Balance: Transitional Justice Reconsidered .......... 18
Dadimos Haile - Rethinking the Transitional Justice Discourse and Activism ........... 18

Session 1: Normative Foundations of Transitional Justice ..................................... 19

Prof. Larry May -Transitional Justice and the Just War Tradition............................... 19
Shaina P. Wang- Transitional Justice as Retribution - Revisiting its Kantian Roots .... 20
Dr. Pablo de Greiff – Theorizing Transitional Justice ............................................... 20
Dr. Daniel R Mekonnen- Revisiting The Conceptual Framework Of Transitional
Justice In The Context Of Ongoing Conflicts: A Need For A Paradigm Shift? ......... 21

Session 2: The Legitimacy of International Prosecution ........................................ 21

Lorna McGregor - The Rule of Law and the ICC (title to be confirmed) .................. 21
Dr Alison Bisset - Coordinating the Operations of Truth Commissions and Domestic
Criminal Courts under the Rome Statute Regime: Lessons from East Timor and Sierra
Leone ........................................................................................................................ 22
Morten Bergsmo –Title to be confirmed ................................................................... 23
Nicola Palmer – A Time of Transfer: Rule 11 bis and the rule of law in Rwanda....... 23

Session 3: Victim-Centred Transitional Justice........................................................ 24

Tsepho Madlingozi- The Disempowering Power of ‘Transitional Justice’: Case Study
of South Africa’s Khulumani Support Group ............................................................ 24
Prof. David A. Mendeloff- Trauma and Vengeance: Assessing The Psychological and
Emotional Effects of Post-Conflict Justice................................................................ 24
Hugo van der Merwe- Delivering Justice during Transition: Access to Justice and/or
Transforming Justice ................................................................................................. 24

Session 4: Re-examining Reconciliation .................................................................. 25

Judith Renner- Hegemonizing Transitional Justice: A Laclauian Approach to
Reconciliation ........................................................................................................... 25
Prof. Dean E. Peachey- The Elusive Quest for Reconciliation in Northern Uganda .. 26
Briony Jones- Reconciliation’s Citizen: An Exploration of Post-conflict Citizenship in
the Multi-ethnic district of Brčko, Bosnia-Herzegovina. ............................................ 27
Roman David- Do Lustration Systems Contribute to Justice and Reconciliation?
Evidence from the Czech Republic, Hungary, and Poland ........................................ 27

Second Plenary: IT’S TIME TO MOVE ON- Unpacking the Amnesty Debate .. 28
Dr. Louise Mallinder- Evolution Of International Approaches To Amnesty Laws .... 28
Prof David Anderson – Title to be confirmed ........................................................... 29

13
 Dr. Antje du Bois-Pedain- Post-conflict Accountability and Criminal Justice:
Appreciating the Complexities .................................................................................. 29

Session 5: Domestic Prosecutions and Transitional Justice. .................................. 30

Prof. David Sugarman - The Human Rights Turn In 'Post-Pinochet' Chile ............... 30
Dr. Cheah Wui Ling - A legal and historical study of post-WWII Singapore
Trials: Death and suffering on the “hell-ships” .......................................................... 32
Prof. Jo-Marie Burt - Guilty as Charged: The Trial and Prosecution of former
Peruvian President Alberto Fujimori for Human Rights Violations ........................... 33
Prof. Roberto Gargarella - International Criminal Law and Gross Violations of
Human Rights ........................................................................................................... 33

Session 6: Community Shaping of Memory ............................................................. 33

Dr. Elizabeth Oglesby- Historical Memory and the Figure of the Victim in Postwar
Guatemala ................................................................................................................. 33
Kurt Mundorff- Reconciliation Canada? The Indian Residential Schools Truth and
Reconciliation Process and Canada’s Failure of Collective Memory........................... 34
Holly E. Porter- Locating Justice: Community-based approaches in northern Uganda
.................................................................................................................................. 35
Dr. Patricia Lundy- Exploring ‘Bottom-Up’ Transitional Justice: A Case Study of the
Ardoyne Commemoration Project, Northern Ireland ................................................ 36

Session 7: Challenging Truth and the Establishment of a New Political Regime 37

Anna V. Dolidze- Truth and Reconciliation Process as a Method for Transitional
Justice in Georgia ...................................................................................................... 37
Francesca Pizzutelli - Moving away from the South African model: Amnesties and
prosecutions in the practice of 38 truth commissions ................................................ 37
Filipa Raimundo- Should we talk about post-transitional justice? Lessons from the
Iberian and Central European democracies ............................................................... 38

Session 8: Institutional Reform ................................................................................. 39

Lars Waldorf- Linking Transitional Justice and DDR ................................................ 39
Adam Czarnota- Lustration, decommunisation and the rule of law ........................... 39
Antoine Buyse- Importing International Human Rights Law in a Post-Conflict Society:
the Experience of the Bosnian Human Rights Chamber ........................................... 40
Paul Clark – Transitional Justice and Institutional Design: Towards a Structural
Theory ...................................................................................................................... 40

Third Plenary: IT’S ALL JUST POLITICS .............................................................. 42

Dr. Victor Peskin- “Trials of Cooperation,” State Defiance, and the Changing Politics
of Global Justice from the Yugoslavia and Rwanda Tribunals to the International
Criminal Court .......................................................................................................... 42
Barney Afako- The Politics of Local Justice in Northern Uganda .............................. 42
Dr. Suzannah Linton- Not just about atrocities: Dealing with the legacies of the past in
Asia ........................................................................................................................... 43

Session 9: Enacting Transitional Justice: Reparations and Political Apology ...... 43

Claudia Gazzini- Libya: a success story for Transitional Justice? ................................ 43

14
 Katherine Liao – Title to be confirmed ..................................................................... 44
Michel-André Horelt- Searching for the ritual in political apologies: A performance
based approach to the analysis of political apologies.................................................. 44

Session 10: Prosecutions and Sentencing ................................................................. 45

Neha Jain- Prosecutorial Discretion and the Promise of Internationalised Criminal
Trials ......................................................................................................................... 45
Robert Vincent -Reform of the International Criminal Tribunals and the Special
Tribunal for Lebanon ................................................................................................ 46
Prof. Ralph Henham- International Sentencing as a Force for Achieving Peace
through Justice .......................................................................................................... 46
Maria Varaki- Of Justice and Other Demons: Legal -Policy and Jurisprudential
dilemmas in the Interests of Justice ........................................................................... 47

Session 11: Conceptualising "Local" Approaches To Transitional Justice ........... 48

Felix Ndahinda- Making Sense of Local Justice in the African Great Lakes Region: A
Comparative Overview ............................................................................................. 48
Nevin T. Aiken- Decentralized Transitional Justice in Northern Ireland: Assessing the
Contributions to Intergroup Reconciliation ............................................................... 49
Abdulmumini A. Oba- Oputa Panel: Nigeria’s Scuttled Experiment With Transitional
Justice ....................................................................................................................... 50
Martien Schotsmans- The transitional justice gap in Sierra Leone : is there a need to fill
it an can tradition-based justice do the job ? ............................................................. 51

Session 12: Negotiating Justice in Transition .......................................................... 51

Christopher Lamont- Law, Politics and Legitimacy: Negotiating State Co-operation
with the International Criminal Tribunal for the former Yugoslavia .......................... 51
Liz Evenson- Peace and Justice: Lessons from the Field ........................................... 53
Herman Von Hebel –Lessons learnt from International Tribunals ............................ 53
Dr. Debidatta Aurobinda Mahapatra and Dr. Seema Shekhawat -Transitional Justice in
Kashmir: An Urgent Need for Durable Peace ........................................................... 54

Fourth Plenary: JUSTICE IS A LOCAL ISSUE ...................................................... 55

Prof. Kieran McEvoy –Title to be confirmed ............................................................ 55
Stephen Oola- Cosmetic Justice: Local Perceptions towards the International Criminal
Courts’ Involvement in Northern Uganda and the region ......................................... 55
Dr. Wendy Lambourne- Outreach, Inreach and Local Ownership of Transitional
Justice: Cambodian Participation in the Khmer Rouge Tribunal ................................ 56

Session 13: Power - Actors And Agency .................................................................... 57

Shana Tabak- Women in Transition: Challenges of Transitional Justice & Female
Combatants in Colombia........................................................................................... 57
Dr. Frédéric Mégret - Rehabilitation of 'traitors' as 'resisters': a neglected theme in
transitional justice...................................................................................................... 58
Susan Harris Rimmer -Reconceiving Refugees and IDPs as Transitional Justice Actors
.................................................................................................................................. 58
Brigitte Mapendo- Women and Transitional Justice- What choice between peace and
justice? ...................................................................................................................... 59

15
Session 14: Local Approaches To Transitional Justice – Field-Based Analyses.... 60
Laurens Bakker- From dictatorship to reform. Transfiguring land access in Indonesia
.................................................................................................................................. 60
Bert Ingelaere- Life (Stories) In Transition: A Methodological Approach To Study
Political Transition And Transitional Justice From Below ......................................... 61
Lieselotte Viaene - The internal logic of the cosmos as ‘justice’ and ‘reconciliation’:
Maya Q’eqchi’ perceptions from post-conflict Guatemala ......................................... 61
Prof. Mwesiga Baregu – Title to be confirmed .......................................................... 61
Dr. Phil Clark – When Local and Global Justice Meet: Field Findings from Rwanda,
Uganda and the Democratic Republic of Congo ....................................................... 61

Session 15: Nation Building, Social Transformation and Post-Conflict

Reconstruction ............................................................................................................ 61
Thomas K Crick - Local Justice Promotion as Nation Building: Current efforts in
Liberia ....................................................................................................................... 61
Lauren McAlister- Conceptualizing the “other”- transitional justice in the divided
community of Mostar................................................................................................ 61
Binaifer Nowrojee –Title to be confirmed ................................................................. 62
Clara Sandoval – Legal Change and Transitional Justice ............................................ 62
Morris Kiwinda Mbondenyi- The road to post-conflict reconstruction in Kenya: An
evaluation of the country’s approach to justice, land and institutional reforms after the
2007 post-elections violence ...................................................................................... 63

Session 16: Memories In The Making ...................................................................... 64

Diana Batchelor- Moving On? The Role of Collective Amnesia in Lebanon’s
Transitional Justice Strategy....................................................................................... 64
Eadaoin O'Brien- The Exhumation of Mass Graves and the Memorialisation Process:
A Critical Analysis of the Transition from Isolated Victim Memory to the Collective
Memory of a Nation. ................................................................................................. 65
Danielle Granville- The role of memory in Transitional Justice ................................. 66

Final Plenary: SHAPING THE WAY FORWARD ................................................. 66

Debates in the Foyers- an audio-visual reflection of the conference .......................... 66
Dr Rama Mani- Title to be confirmed ....................................................................... 66
Dr. Phil Clark- Title to be confirmed ........................................................................ 66

16
 Opening Plenary: STEPPING BACK FROM TRANSITIONAL
JUSTICE
Prof. Ruti Teitel - Transitional Justice Globalized
(Ernst C. Stiefel Professor of Comparative Law, New York Law School)

Interest in transitional justice has surged in legal scholarship, in the human rights field
generally and most notably in the domain of politics. ‘Transitional justice’ is an
expression I coined in 1991 at the time of the Soviet collapse and on the heels of the late
1980’s Latin American transitions to democracy. In proposing this terminology, my aim
was to account for the self-conscious construction of a distinctive conception of justice
associated with periods of radical political change following past oppressive rule. Today
we see that an entire field of inquiry, analysis and practice has ensued that reflects
scholarly interest; the launching of this journal, the publication of books in a wide variety
of related areas such as rule of law and postconflict studies, international centers and
research institutes dedicated to work in this area, interest groups, conferences, domains,
web sites, etc. One cannot help but be struck by the humanist breadth of the field,
ranging from concerns in law and jurisprudence, to ethics and economics, psychology,
criminology and theology.

At present, we find ourselves in a global phase of transitional justice. The global phase is
defined by three significant dimensions: first, the move from exceptional transitional
responses to a ‘steady-state’ justice, associated with post-conflict related phenomena that
emerge from a fairly pervasive state of conflict, including ethnic and civil wars; second, a
shift from a focus on state-centric obligations to the far broader array of interest in non-
state actors associated with globalization; and, lastly, we see an expansion of the law’s
role in advancing democratization and state-building to the more complex role of
transitional justice in the broader purposes of promoting and maintaining peace and
human security. As will be seen, these changes do not necessarily work in a linear or
harmonious direction, but instead may well result in chaotic developments and clashes in
the multiple rule of law values involved in the protection of the interests of states,
persons and peoples.

Steady-state transitional justice is not always aligned in a straightforward way with

transitional chronology. By now, there has been a significant normalization and
entrenchment of transitional justice within existing legal regimes such as the human
rights and humanitarian law systems. Many transitional justice responses have become
ratified in standing human rights conventions where they have given rise to enduring and
universally invoked human rights, such as the so-called right to truth that includes
investigations, and often related prosecutions, adjudication and reparation. These rights
depend for their vindication on the responses of civil society, such as NGOs devoted to
the representation of human rights and its abuses. Likewise, these actors’ legitimacy also
draws from the emerging normativity of global transitional justice.

Further, the involvement of transnational NGOs and global civil society more broadly
illustrates the wider politics of transitional justice. Reflecting on the current global
politics of transitional justice may well illuminate areas of foreign affairs controversy
where claims to transitional justice change the structure of the terms of the discourse. So,
for example, one might see this in the struggle over General Mladic between Serbia and

17
the EU, where transitional justice may well end up as a chip in the bargain around the
status of Kosovo. It may explain the puzzling revival of the Turkish/ Armenian genocide
question where the elision of transitional justice remains critically important to the
implicated peoples with extraterritorial dimensions, but where the timing of the demand
indubitably shapes the structure of other questions of interstate relations, such as
European accession. Japanese accountability for past war crimes may well affect the
extent to which that country can be seen as an Asian great power with a human rights
alternative to China. Today, transitional justice has a global normative reach, with effects
far and wide on the discourse and structure of international affairs.

Prof. Leigh A. Payne (co-authors Tricia D. Olsen and Andrew G. Reiter) - The Justice
Balance: Transitional Justice Reconsidered
(Professor of Sociology, Latin American Centre, University of Oxford)

This paper presents a justice alternative approach to transitional justice. Based on

analysis of the Transitional Justice Data Base project, a full set of transitional justice
mechanisms used by all countries of the world since 1970, we find that single-
mechanisms do not reduce human rights violations or strengthen democracy. Trials and
amnesties alone prove inconclusive in our findings. Truth commissions have a
significant, but negative, effect on transitional justice goals, suggesting that such
mechanisms alone may adversely affect democracy and human rights. On the other
hand, balancing accountability (trials or trials and truth commissions) with amnesty has a
positive, significant effect on democracy and human rights. Our approach, therefore,
challenges prior claims regarding single mechanisms and refines the holistic approach by
specifying which combination of mechanisms is most likely to achieve the desired
objectives of transitional justice. After presenting our findings we begin to explore why
the justice balance benefits democracy and human rights in countries emerging from
authoritarian rule around the world. In this paper we will incorporate some of our
qualitative analysis of regional cases to further examine the justice balance.

Dadimos Haile - Rethinking the Transitional Justice Discourse and Activism

(Head, International Justice and Human Rights Programme, Avocats Sans Frontières)

The post-Cold War optimism about the prospects for a new world order based on
democratic governance, respect for human rights and the rule of law has contributed to
an increased interest in the role of criminal justice in dealing with serious rights abuses.
Accordingly, there was an intensive effort - assisted by the nascent public policy-oriented
research tradition that has come to be known as ‘transitional justice’ - at realizing the
post WW II developments in international criminal law and the lessons from subsequent
national experiences in dealing with the abuses of prior regimes. The article seeks to draw
attention to two major aspects of the prevailing debate and activism in transitional justice
that would seem to require serious rethinking.

First, despite the central importance that criminal justice has thus assumed and the
energy, enthusiasm and resources being channeled to the cause, the accompanying
discourse lacks sufficient theoretical grounding. In particular, insufficient attention has
been paid to the body of knowledge developed in the standard criminal law context.
Historically, the move towards the criminalization and punishment of human rights
violations was, to a large extent, driven by utilitarian considerations, namely, the

18
conviction that the threat or imposition of punishment can help prevent future rights
abuses. With the increased opportunity for translating relevant normative developments
into practice, however, the initial assumptions about the utility of the enterprise seem to
have become more and more obfuscated amid a proliferation of rationales. There is thus
a paradox where the methods and mechanisms of the time tested institution of
punishment are employed, often, with robust expectations but without the necessary
theoretical illumination regarding the moral, social and political foundations and
functions of the institution.

Secondly, the above limitation is compounded by reliance on the overly optimistic

paradigm that underpinned the transition to democracy literature, and which tended to
assume uniformity in the course and quality of political processes among different
contexts of regime changes. Consequently, the transitional justice discourse has failed to
adopt a critical and interdisciplinary framework of analysis for contextualizing the various
assumptions to the diverse political settings in which criminal law may be employed to
address rights violations and the equally diverse –though not always respectable - ends it
might serve.

The article seeks to examine and explain the above limitations and outline some of their
serious theoretical and practical implications. It contends that, first, by raising unrealistic
expectations, unarticulated propositions about the role of criminal law coupled with the
lack of a critical assessment of the particular political and social context in which it
operates may lead to eventual disillusionment and cynicism. Such accounts also risk
diverting attention and resources from the real problems facing the societies concerned
and from more effective ways for addressing those problems. Worse still, the lofty
humanitarian ideals that punishment is said to serve and the emotionally compelling
images of victims can be subverted and used to achieve other unrelated or incompatible
objectives.

The article then outlines the challenges and opportunities for future scholarship in the
field in view of the problems identified. It argues that useful contributions in the latter
respects shall come from studies that build on insights from ethical (moral philosophy),
penelogical and sociological perspectives on the functions and justifications of
punishment, as well as from the perspectives of political science, legal theory and history.

Session 1: Normative Foundations of Transitional Justice

Prof. Larry May -Transitional Justice and the Just War Tradition.
(W. Alton Jones Professor of Philosophy, Department of Philosophy, Vanderbilt
University)

In 1625, Hugo Grotius said that in the aftermath of war political leaders must be most
concerned not to anger the populations of the defeated State since such anger will
undermine lasting peace. But Grotius also argued that it was essential that human rights
protection must be of paramount concern. We can see in Grotius' work the emergence
of two normative principles of transitional justice: the principle of the promotion of
peace and the principle of the protection of human rights. I will explain the normative
grounds for supporting these two principles as the cornerstones of transitional justice.

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And I will also offer a way to adjudicate between these principles when following them
provides conflicting advice about what to do in such situations as that of Darfur.

Shaina P. Wang- Transitional Justice as Retribution - Revisiting its Kantian Roots

(Department of Government, University of Essex)

This paper begins with the controversy aroused by the ‘De-Chiang Kai-shek’
movement—a political project to search for retributive justice in Taiwan. The debate on
this project in Taiwan seems to echo the concerns around the retributive approaches put
forward by those who advocate the restorative orientated approaches to justice in the
broader literature on transitional justice: On the theoretical level, some question if the
retributive idea of punishment is intrinsically moral. This also relates to the conceptual
distinction between retribution as a legitimate moral response to a wrong and revenge as
a primitive animal-like impulse to bite back. On the contextual level, others are
concerned about the adequacy of adopting a non-consequential, backward-looking, and
perpetrated-centred approach to deal with the issues of transitional justice.

This paper attempts to respond to these concerns around the retributive approach to
transitional justice by challenging the existing understanding of ‘retributive justice’ in
literature on transitional study. It begins with sketching out how the concept of
retributive justice is currently thought in the literature of transitional justice and their
reference to its Kantian root. As Kant has been described as ‘one of the most prominent
and influential of retributivists’, the discussion will then moves to his ‘famously
unbending retributivist pronouncements about punishment’ to rethink the idea of
retributive punishment. More specifically, in doing so, I attempt to challenge the
assumption that retributive justice is purely backward looking and perpetrator-centred, to
rethink the ‘default position’ of proportional punishment in respond to a wrong, and to
reactivate the moral imperative of respecting the fundamental human dignity in
retributive thought. Based on the rereading of retributive justice in Kant, the final section
of the paper intends to bring back the moral legitimacy of retributive justice and to
loosen up the strict opposition between justice and reconciliation assumed by transitional
studies.

Dr. Pablo de Greiff – Theorizing Transitional Justice

(Director, Research Unit, International Center for Transitional Justice)

This paper present two analytically distinct but substantively convergent arguments for
understanding transitional justice holistically. The first argument concentrates on the
conditions of the possibility of endowing weak and deficient measures with the meaning
of justice measures. The second argument articulates a normative conception of
transitional justice which is constructed around a set of ends which different transitional
justice measures arguably share. It argues, in a reconstructive spirit, that attributing to
transitional justice two ‘mediate’ goals, namely, recognition and civic trust and two ‘final’
goals, reconciliation and democracy helps to make sense of the practice, both in the
sense of clarifying the relationship between its different constituent parts, and in the
sense of clarifying the relationship between transitional justice and other concepts and
practices, including, precisely, reconciliation and democracy. Finally, the paper provides
a discussion of the nature of transitional justice. It argues against the view that
transitional justice is ‘extraordinary’ in the sense of a distinct type of justice on the one

20
hand, and on the other, that it is merely a compromise. Making use of the distinction
between justification and application, it argues instead that transitional justice articulates
the requirements of a general understanding justice when applied to the peculiar
circumstances of a very imperfect world, that is, a world characterized by massive rule
breakdown and great risks to the institutions that attempt to overcome such
breakdowns.

Dr. Daniel R Mekonnen- Revisiting The Conceptual Framework Of Transitional Justice

In The Context Of Ongoing Conflicts: A Need For A Paradigm Shift?
(Post-doctoral Researcher, Human Right Centre, University of Ghent)

Almost in every transitional justice discourse, the “past” is always seen a necessary
precursor, because transitional justice is widely understood as a multidisciplinary study
focusing on “dealing with the past.” But, is there a need to focus on the “present” in the
context of ongoing conflicts? This paper discusses the need to revisit the conceptual
framework of transitional justice, including the institutional designs of transitional justice,
in the context of ongoing conflict or repression. It is generally agreed that the
institutional templates of transitional justice are applicable under a specific political
situation, which is “transition.” Inherent in the definition of transitional justice is,
therefore, “a framework for confronting past abuse as a component of a major political
transformation,” such as for example, when a regime change from dictatorship to
democracy has taken place. However, latest experiences in several countries show that
the requisite factor, political transformation, could be noticeably missing from the reality
of the day while the need for political change is long overdue. Is it possible to discuss
transitional justice when “transition” has not yet unfolded sufficiently? Is it practically
possible to sell the idea of transitional justice and advocate for the most visible options
when the requisite political factor is not in place? If the answers to these questions are in
the affirmative, is the current widely accepted conceptual framework of transitional
justice accommodative of such needs?

The paper seeks to answer these fundamental questions based on the latest experiences
of societies which are still governed by some of the most repressive regimes in the world.
It assess the need for a paradigm shift (if there is such a need) in the conceptual
framework of transitional justice; that is a shift from the conventional post-conflict
remedial focus of transitional justice to both preventive and remedial in-conflict focus.
Indeed, the relations between a theoretical refection and the many practical demands in
transitional justice require a thorough reassessment. The above issues will be examined
mainly in the context of ongoing African conflicts with a cursory reference to other
ongoing conflicts on a comparative manner. This requires an examination of the
institutions and practices of transitional justice within the context of “historical justice,” a
concept which denotes a dual approach of dealing with the past and the present at the
same time.

Session 2: The Legitimacy of International Prosecution

Lorna McGregor - The Rule of Law and the ICC (title to be confirmed)
(International Legal Advisor, Redress)

The reestablishment of the rule of law is invariably set out as a central goal and
justification for the pursuit of a transitional justice project. Unlike other transitional

21
justice objectives, however, it remains under-theorised, despite the complexity involved
in attempting to re-establish the rule of law. Rather, the frequency of its citation without
detailed analysis coupled with burgeoning critiques of the dominance of law in
transitional justice processes results in a simplistic and superficial treatment of a critical
and complex issue. This not only dilutes its importance but may also forestall its
achievement. This is particularly the case in relation to international criminal tribunals
which are often assumed to contribute to the reestablishment of the rule of law through
the fact of investigations and prosecutions alone even though they may ultimately
symbolise exceptional instances of justice within a broader context of impunity.

In contrast, the provision for the principle of complementarity in the Rome Statute is
regularly cited as a novel and deeper means by which to promote accountability for
Article 5 crimes at the national level, including in situation countries. As its starting
point, this paper posits that the significance of the principle of complementarity as a
distinguishing feature of the International Criminal Court (ICC) may be overstated,
particularly when considering the relatively low rate of implementation of the Rome
Statute and investigation and prosecution of Article 5 crimes at the national level.
However, in the specific case of an admissibility challenge, the paper argues that the
principle may act as the necessary trigger to the (re)vitalisation of the national justice
system, an occurrence which may not have been foreseeable but for the intervention of
the ICC. Although the Pre-Trial Chamber has clarified that admissibility assessments
focus on the person and conduct rather than the legal system as a whole, a successful
admissibility challenge would still require broader changes to the legal system in order to
render it willing and able to investigate and prosecute the alleged crimes at issue. While a
complex process with inherent limitations due to its generation out of specific cases, this
paper concludes that where the principle of complementarity is activated through
admissibility challenges, it offers one of the more serious and concrete opportunities for
transformative change in national justice systems, the prospects for which may otherwise
be remote.

Dr Alison Bisset - Coordinating the Operations of Truth Commissions and Domestic

Criminal Courts under the Rome Statute Regime: Lessons from East Timor and Sierra
Leone
(School of Law, University of Reading)

The Rome Statute of the International Criminal Court has introduced a new dynamic
into the relationship between truth commissions and prosecutorial institutions. The
Statute’s elevation of prosecution over other mechanisms for responding to serious
human rights violations raises questions as to whether truth commissions and
prosecutorial bodies can continue to operate effectively together at the national level.

The Rome Statute imposes an obligation on its State Parties to prosecute genocide,
crimes against humanity and war crimes and gives the ICC the power to exercise
jurisdiction where State Parties are unable or unwilling to do so. The requirement for
State Parties to carry out prosecutions of human rights crimes in order to discharge their
Rome Statute obligations prioritises prosecution as the primary response to the
commission of human rights violations and appears to give rise to a model in which
future truth commissions will fulfil a complementary but secondary role to criminal trials
within transitional states. In addition, there are likely to be practical problems in
coordinating the investigations of these bodies. Both require access to the same evidence,

22
information and witnesses but operate very different investigative procedures. These
practical difficulties seem likely to make it difficult to ensure both the effective
prosecution of past violations in accordance with Rome Statute obligations and the full
investigation and exposition of the truth surrounding them.

No common approach on how truth commissions and prosecutorial institutions ought

to cooperate and interact has emerged from past practice. The lack of consensus in this
area has been underlined by the relatively recent establishment of truth commissions
alongside prosecutorial institutions in East Timor and Sierra Leone. These are the first
States in which truth commissions and prosecutorial bodies have been
contemporaneously established to address the same issues. Again, however, the
relationships between the two institutions have taken very different forms.
This paper asks whether it is possible for truth commissions and prosecutorial
institutions to coexist effectively under the Rome Statute regime. In order to do so it will
identify and analyse areas of potential operational difficulty that may compromise
effective coexistence between these bodies when they are established within the same
state. It will compare and contrast the models implemented in East Timor and Sierra
Leone, attempting to ascertain whether there are optimal working conditions, which
allow truth commissions and prosecutorial institutions to function effectively together
without one undermining the work of the other. The paper will argue that the obligation
imposed upon State Parties under the Rome Statute to carry out criminal trials for
human rights violations will prioritise prosecution at the national level and necessitate the
operation of truth commissions as a subordinate complement to prosecutorial
proceedings. As a result, the powers traditionally granted to truth commissions will be
restricted in favour of the operations of prosecutorial institutions, thereby undermining
their ability to fulfil their truth seeking mandates.

Morten Bergsmo –Title to be confirmed

(Senior Researcher, PRIO, Norway)

Nicola Palmer – A Time of Transfer: Rule 11 bis and the rule of law in Rwanda
(OTJR Executive Committee Member, DPhil candidate in Law, University of Oxford)

In August 2003, through Resolution 1503, the Security Council made it explicit that the
transfer of cases to domestic criminal justice systems would play a central role in the
Completion Strategy of the International Criminal Tribunal of Rwanda. Rule 11 bis of
the Rules of Evidence and Procedure was amended accordingly and four cases were
submitted to the Trial Chambers for possible transfer to Rwanda. It will be argued that,
despite the clear initial intention to transfer, the rulings of all three Trial Chambers,
upheld by the Appeals Chamber, against such a move highlights the severe disconnect
between the work of the Tribunal and that of the domestic systems of justice in post-
genocide Rwanda.

Rule 11 bis was intended to create a bridge between the international practice of criminal
law and domestic criminal justice processes. It will be argued that rather than an accurate
insight into the practice of criminal justice in Rwanda, the transfer decisions are better
understood as a manifestation for the Tribunal’s own internal justification for its
activities. This argument is based on an in-depth analysis of the legal decisions couple
with key interviews with central decision makers within the Tribunal, the criminal justice

23
sector in Rwanda and the National Service for Gacaca Jurisdictions. It is submitted that
if the establishment of the rule of law in a post-conflict country is to be one of the
objectives and justifications for international criminal justice then there is a need to
seriously re-evaluate its practice.

Session 3: Victim-Centred Transitional Justice

Tsepho Madlingozi- The Disempowering Power of ‘Transitional Justice’: Case Study of
South Africa’s Khulumani Support Group
(National Advocacy Coordinator, Khulumani, South Africa)

It is often said that one of the aims of ‘transitional justice’ is to empower victims and
contribute towards their (re)integration into society. This is because one of the
consequences of gross and systematic violations of human rights, particularly for victims
of torture and other sexual assaults, is a deep sense of disempowerment: feeling of being
worthless, having low self-esteem, possessing feelings and beliefs of powerlessness. In
this paper I look at how truth and reconciliation commissions, courts, ruling parties,
international and local NGOs and researchers perpetuate disempowerment and
victimhood. My study focuses on South Africa’s Khulumani Support Group and how it
has attempted and continue to resist this disempowerment.

Prof. David A. Mendeloff- Trauma and Vengeance: Assessing The Psychological and
Emotional Effects of Post-Conflict Justice
(Director, Centre for Security and Defence Studies, Assistant Professor of International
Affairs, The Norman Paterson School of International Affairs, Carleton University)

Do war crimes tribunals or truth commissions satisfy victims of war and atrocity and
provide psychological relief from war-induced trauma? Do they make victims less
vengeful and less likely to engage in or support violent retribution? Or does the
experience of post-conflict justice simply reinforce and exacerbate emotional and
psychological suffering? Answers to these questions are central to the logic of truth-
telling's peace-promoting effects in post-authoritarian and post-war societies. Indeed,
one of transitional justice's core arguments is that victims of wartime abuse demand truth
and justice. These arguments, however, assume that truth-telling processes, on average,
provide psychological and emotional benefits to victims. Some critics have argued,
however, that they actually cause more harm than good. While victims' preferences for
truth and justice are well documented, we know considerably less about their actual
impact. This paper assesses that impact by surveying the extant empirical evidence from
prominent cases of transitional justice, as well as research in forensic and clinical
psychology. It finds a paltry empirical record that offers little support for claims of either
salutary or harmful effects of post-conflict justice. While there is little evidence that
truth-telling in general dramatically harms individuals, the notion that formal truth-telling
processes satisfy victims' need for justice, ease their emotional and psychological
suffering, and dampen their desire for vengeance, remains highly dubious.

Hugo van der Merwe- Delivering Justice during Transition: Access to Justice and/or
Transforming Justice
(Transitional Justice Programme Manager, Centre for the Study of Violence and
Reconciliation, South Africa)

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My paper will assess progress in the pursuit of the twin goals of providing access to
justice for victims of human rights violation and achieving broader institutional goals of
reforming the legal system during transition. Building on various research studies
conducted by the Centre for the Study of Violence and Reconciliation and others on the
meaning of justice for victims of apartheid abuses, the paper will explore the
question of access to justice during transition – what is anticipated by victims, what is
promised by transitional justice mechanisms, what is delivered, and what is ultimately
feasible in a transitional context. The paper will also seek to draw lessons from CSVR’s
involvement in restorative justice interventions and legal challenges to state policies of
non-prosecutions and pardons, particularly the participation of survivors and survivor
organizations in these initiatives.

The paper will examine how the meaning of justice was manipulated by the TRC (and
since then by the state), the evolution of survivor perspectives (pre-, during and post-
TRC), and the consequences of these changing formulations for the longer term delivery
of justice and development of a legitimate and responsive legal system.

The paper will highlight the tensions and complementarity of two key approaches to
pursuing justice during transition: 1) access to justice for survivors and 2) transformation
of the legal system to be more responsive to victims of human rights abuses (what is
usually more narrowly viewed as building the rule of law). The paper examines the
difficulties of pursuing dual goals of satisfaction of survivors and institutional
transformation goals in a context where both the interests of survivors
and the transformation goals are contested.

Session 4: Re-examining Reconciliation

Judith Renner- Hegemonizing Transitional Justice: A Laclauian Approach to
Reconciliation
(Ludwig-Maximilians- Geschwister-Scholl-Institute for Political Science, Department of
International Relations, University of Munich

‘Reconciliation’ has emerged as a powerful norm in the context of political transition and
now effectively shapes the theory and political practice of transitional justice. This paper
enquires into the performance of ‘reconciliation’ in theory and practice and takes the
vagueness and flexibility surrounding the concept as its point of departure. Drawing on
the discourse theoretical approach developed by Ernesto Laclau and Chantal Mouffe the
paper argues that ‘reconciliation’ should be understood as an empty universal value, that
is, a vague but powerful social (and theoretical) ideal which has gained hegemony in the
transitional justice discourse. It can be expected that, as a hegemonic signifier,
‘reconciliation’ performs on two levels: On the level of discourse it functions as a
discursive nodal point. As such it structures the reconciliation discourse and re-defines
the meanings of all other signifiers in a relation of equivalence with itself. On the level of
social life ‘reconciliation’ performs in two ways. Firstly, it shapes and naturalises the
policies and practices pursued in the name of reconciliation in concrete transitional
situations and thus accounts for social reality. Secondly, it makes collective action
possible as, due to its vagueness, it can represent the particular goals of a number of
different actors and bring together a polarized political landscape. The paper argues that
treating ‘reconciliation’ as an empty universal helps to understand the different shapes of
empirical reconciliation programmes on the one hand, and on the other hand calls

25
attention to the constructed and normatively charged character of the concept of
‘reconciliation’ in the theory of transitional justice.

In order to illustrate its argument, the paper conducts two discourse analyses: Firstly, it
comparatively examines the reconciliation policies and discourses of Spain and South
Africa and demonstrates that the significant differences between the reconciliation
programmes of both countries can be traced back to differently constituted
reconciliation discourses. Secondly, it looks at the theoretical transitional justice
discourse and analyses the more recent dynamics of the ‘justice vs. peace’ debate. Here
the paper shows that, while reconciliation and justice were formerly considered as two
incommensurable values, ‘reconciliation’ has now gained hegemony over justice in the
transitional justice debate. It therefore re-structures the transitional justice discourse, re-
defines the meanings of all other signifiers and, centrally, reshapes the meaning of
‘justice’ from ‘retributive justice’ to ‘restorative justice’.

Prof. Dean E. Peachey- The Elusive Quest for Reconciliation in Northern Uganda
(Visiting Professor in Transitional Justice Global College, University of Winnipeg,
Canada)

As with many civil wars, the conflict between the Government of Uganda and the Lord’s
Resistance Army has been waged up close and personal, including combatants killing,
torturing, and kidnapping people from their own communities or tribe. Most residents
have been forced from their homes and livelihoods. Upwards of 30,000 individuals have
been abducted to serve as fighters or porters for the LRA, many of them children.
Uncounted thousands of people have died, and many more have been tortured or
maimed. The economy is in shambles.

In this region where literally everyone is war-affected, there have been persistent calls for
reconciliation, even as the war was raging. But how can people recover and live together
with security and justice after experiencing such violence and trauma suffered at the
hands of their fellow citizens? Is “reconciliation” a way forward, or is it a psuedonym
for impunity and collective amnesia? In the last five years, these questions have been
part of an on-going debate in northern Uganda, amplified in part by the first indictments
of the International Criminal Court being issued against leaders of the Lord’s Resistance
Army.

This paper explores conceptualizations of reconciliation in northern Uganda, drawn from

interviews and participant observation. The results dispute some common portrayals
reconciliation in northern Uganda, including those that: 1) depict reconciliation as arising
from a set of cultural formulas or rituals; 1) equate reconciliation with forgiveness or
amnesty; or 3) understand reconciliation as reinforcing the political status quo.

The paper argues that reconciliation necessarily has both political and personal
dimensions. Notwithstanding the political benefits accruing to some proponents of
reconciliation, the paper seeks to understand the persistence of calls for reconciliation by
people who have been grievously affected by the war. Finally, the paper analyzes “justice
vs. reconciliation” debates in terms of underlying understandings of reality or
worldviews.

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Briony Jones- Reconciliation’s Citizen: An Exploration of Post-conflict Citizenship in the
Multi-ethnic district of Brčko, Bosnia-Herzegovina.
(OTJR Student Chair, Doctoral Candidate, University of Manchester)

Recent work on the politics of reconciliation has challenged mainstream normative

approaches which focus on healing, forgiveness, and the re-making of community. Work
by authors such as Schaap (2004, 2007) and Christodoulidis (2000) suggest that
reconciliation is rightly politically contested, and rests on the establishment of a ‘we’
which is contingent and always not-yet. Such a ‘we’ requires a political space which is
open to contestations of affiliation, identity, and pluralism. This is an approach not often
found in mainstream literature on reconciliation, nor in the interventions undertaken in
its name. In the establishment of a ‘we’ a political subject is posited, one which is debated
in terms of different approaches to democracy. As such, reconciliation often either
assumes a citizen or tries to ‘re-make’ one. Despite the importance for unity and
democracy, this area of the dynamic between the citizen and reconciliation is under-
explored.

This paper draws on qualitative fieldwork undertaken in Brčko District, Bosnia-

Herzegovina (BiH) in 2007 and 2008. Rarely mentioned in literature on post-Dayton
BiH, Brčko District is a third entity alongside the two ethnic entities established by the
peace accord in 1995. It has an official multi-ethnic policy which ethnically integrated the
police force, judiciary, and school systems after 1999. There is an official narrative –
reproduced both in BiH and among external actors - of a success story of reconciliation
and multi-ethnicity. It is interesting to ask in this context how people living in Brčko
District today think about relations between ethnicities, in terms of their ability to live as
members of a society in a way which is meaningful for them. The fieldwork data suggests
that a focus on ethnic identities, on the relations between ethnicities, and on a
reconciliation dichotomy of anti or pro multi-ethnicity, denies the lived realities of
people, and limits ways of understanding the nuances of social relations in this post-
conflict context. It also suggests that the post-conflict, multi-ethnic citizen is not
necessarily reflected in the practices of residents which contest and define social and
political belonging and membership.

25) Do Lustration Systems Contribute to Justice and Reconciliation? Evidence from the
Czech Republic, Hungary, and Poland

Roman David- Do Lustration Systems Contribute to Justice and Reconciliation?

Evidence from the Czech Republic, Hungary, and Poland
(Lecturer in Politics, Newcastle University)

The consequences of the de-Baathification of Iraq reveal the importance of formulating

effective policies to deal with personnel inherited from prior regimes in the
administration of transitional states. Nevertheless, “transitional personnel policies” are a
topic that has been neglected by political research. A common problem amongst
scholars who attribute positive and negative consequences to vetting processes is their
failure to differentiate between various models of vetting. Most of them treat vetting
laws as a single category of transitional justice, assuming that all countries pursued
personnel policies aimed at blanket dismissals. To fill this gap this paper adopts the
concept of “lustration systems” as a tool for classifying personnel policies into exclusive,
inclusive, and reconciliatory systems. A lustration system denotes the methods used to
deal with members of the repressive apparatus of the former regime in public positions

27
in the aftermath of regime changes. Each lustration system adopts a particular method
of dealing with the presence of inherited personnel: dismissal, exposure, and confession,
respectively. The exclusive system originated in the Czech Republic, the inclusive system
in Hungary, and the reconciliatory system in Poland.

These systems have different propensities to achieve backward-looking objectives of

justice and forward-looking objectives of reconciliation. Their effects depend on their
ability to transform the perception of former adversaries. While the exclusive and
inclusive models are theorized to perpetuate the negative view of former adversaries, the
reconciliatory model is able to make a meaningful change in perceptions. It is
hypothesized that the exclusive system generates the effect of inversion as it is able to
achieve justice at the expense of reconciliation. The inclusive system generates the effect
of subversion because shaming is an insufficient proxy for justice and may augment
historical divisions. The reconciliatory system generates the effect of conversion as it is
able to change the perception of adversary and satisfy the needs for justice.

In order to examine these hypotheses, this project utilized the method of an experiment
that was embedded in surveys conducted in countries of their origin, namely the Czech
Republic, Hungary, and Poland. The experiment tested the effects of central values,
upon which these systems were based, namely the effect of dismissal, exposure, and
confession, on justice and reconciliation. Reconciliation was defined as a multifaceted
concept that encompasses trust, tolerance, social closeness, and a second chance. Justice
was measured by a scale that encompasses justice for victims, transgressor, and society.
The results from the OLS linear regression analyses show that the exclusive and the
reconciliatory systems may eventually lead to justice as well as to reconciliation.

Second Plenary: IT’S TIME TO MOVE ON- Unpacking the Amnesty

Debate

Dr. Louise Mallinder- Evolution Of International Approaches To Amnesty Laws

(Law School, Queen’s University Belfast)

Although states have since ancient times enacted and mediated amnesty laws to bring
conflicts to an end and to ease political crises, since the end of the Cold War, amnesties
have increasingly been a source of controversy and contestation within political
transitions. This growing controversy has coincided with the development of transitional
justice as both an intellectual field and area of national and international policy. This
paper will explore how the growth of transitional justice has impacted upon state practice
in relation to amnesty laws.

The paper will begin by charting the changes in international attitudes to amnesty laws
from generally positive views that they could, according to a 1985 UN study, facilitate
‘the Safeguard and Promotion of Human Rights’, to current views which argue that
amnesty laws deny victims’ rights and undermine efforts to build peaceful and
democratic societies. The paper will identity several key factors that contributed to these
changes, and in particular, it will explore the impact of the experiences of amnesty laws
in the Americas and the changing attitudes of the UN since the 1999 Lomé Accord for
the conflict in Sierra Leone.

28
In the second part of the presentation, the paper will explore how amnesty laws are often
now positioned as contrary to the theoretical goals of transitional justice. Drawing on
fieldwork conducted by the author and colleagues, it will explore the extent to amnesties
can potentially inhibit or promote transitional justice. In particular, the paper will
highlight the ways in amnesty laws are increasingly being adapted to coexist and
complement other transitional justice approaches, rather than to undermine them.

The paper will argue that today the tension between peace and justice remains, as evinced
by debates over ICC indictments for leaders of the Lord’s Resistance Army, and that as
yet, state practice on amnesty laws for serious human rights violations has not
crystallised. However, it does appear that in relation to amnesty laws, states are
responding to the growth of transitional justice by enacting increasingly individualised
and conditional amnesties.

Prof David Anderson – Title to be confirmed

(Director of the Centre for African Studies, University of Oxford)

Dr. Antje du Bois-Pedain- Post-conflict Accountability and Criminal Justice:

Appreciating the Complexities
(University Lecturer, Faculty of Law, Fellow of Magdalene College, Cambridge)

When justice campaigners formulate aims and expectations for post-conflict justice,
criminal prosecutions of the persons responsible for human rights violations and for
politically motivated crimes are often given pride of place. Criminal trials in the aftermath
of violent conflict and political suppression are intended to hold individuals accountable
for horrific injuries they inflicted on their fellow citizens. And often enough, trials do
succeed in this ambition, at least in respect of the (often comparatively few) accused
brought before the courts. There is by now a wealth of evidence that, the political
context of such trials notwithstanding, accused persons can be treated fairly, evidence
can be found reliably, victims and witnesses can be treated with respect and the
punishment can send a meaningful message about the reprehensibility of the conduct of
the accused. Trials and convictions also serve as markers of the accused’s responsibility
for his past conduct, confirming his culpable agency. Moreover, there is often good
reason to be suspicious of the good faith of some of those who mobilise against the
political legitimacy of such trials and advocate or even demand “credible alternatives“. It
is not rare for these demands to originate from those who have most to gain from
leniency, and/or from their political friends.

Against this background, it is easy to lose sight of the fact that post-conflict trials are not
ends-in-themselves. The end in question is accountability. To hold the perpetrators of
injustice accountable for violations, which at the time of their commission were often
engaged in with impunity, is the main purpose behind the mobilisation of institutions of
criminal justice, both internationally and domestically. Given that purpose, it is both
possible and legitimate to ask the question whether credible alternative accountability
mechanisms exist; and – provided that such mechanisms can be identified – in which
circumstances, and by which actors, these mechanisms ought to be preferred to
prosecutorial options. Drawing on the findings of my empirical research into the
implementation of the South African amnesty scheme for politically motivated offenders
(Transitional Amnesty in South Africa, Cambridge: Cambridge University Press, 2007), I

29
explore the preconditions and limitations of the use of conditional amnesties as
mechanisms designed to ensure accountability. I argue that the kind of accountability
secured through such a scheme is different from the sort of accountability achieved
through criminal trials – importantly, that the conditional amnesty process requires
responsibility to be taken where criminal trials may simply impose it –, but that these
differences mean that in certain situations, trials may perform less well than their more
lenient alternatives.

Session 5: Domestic Prosecutions and Transitional Justice.

Prof. David Sugarman - The Human Rights Turn In 'Post-Pinochet' Chile

(Professor of Law and Director of the Centre for Law and Society, Lancaster University)

The impact and legacy of the Pinochet dictatorship (1973-1990) remains a powerful
undercurrent in present-day Chile.1 During the dictatorship, headed by General Augusto
Pinochet, approximately 3,000 people were killed or “disappeared” by state agents, whilst
more than 28,000 people suffered torture, political imprisonment, and arbitrary arrest.2
As in Argentina and Uruguay, Chilean courts in the 1970s and 1980s presided over the
institutionalisation of impunity. Of the more than 6,000 habeas corpus writs filed by
relatives during the dictatorship, less than ten were accepted despite evidence of extra-
judicial executions, forced disappearance and torture. The standard-form denials
offered by security forces were simply accepted at face value by the courts. In early
1978, a self-amnesty law3 legitimated this dereliction of judicial duty, and it became
routine for human rights cases to be either closed or suspended by the invocation of the
amnesty decree. Indeed, even after the return of civilian governance in 1990, the courts
proved largely unable, or unwilling, to pursue those responsible for the crimes of the
dictatorship.

Following General Pinochet’s arrest in London (1998) for conspiracy to torture and
murder,4 the legal and visual landscape in Chile has been transformed. Ongoing struggles

1
A. Angell, Democracy After Pinochet (2007); S. Borzutsky and L. H. Oppenheim, eds. After
Pinochet. The Chilean Road to Democracy and the Market (2006); P. Politzer, Chile: De Qué Estamos
Hablando? (2006); C. Huneeus, The Pinochet Regime (2007); H. Muñoz, The Dictator's Shadow. Life
Under Augusto Pinochet (2008); P. Winn, ed. Victims of the Chilean Miracle (2004).

2
Rettig Report (1991) (Comisión Nacional de Verdad y Reconciliación);
Valech Report (2004) (Comisión Nacional De Prisión Política Y Tortura). As the Rettig Report put it,
the judiciary’s conduct had been “conspicuously deficient”. Both Reports contain damning
indictments of the failure of the courts to respect their constitutional mandate and legal powers to
defend the right to life and physical integrity of Chile’s citizens.
3
Decreto Ley 2.191 of 1978.
4
N. Roht-Arriaza, The Pinochet Effect (2005); D. Sugarman, “The Pinochet Case: International
Criminal Justice in the Gothic Style?” (2001) Modern Law Review 64, pp. 933-944, “From
Unimaginable to Possible: Spain, Pinochet and the Judicialization of Power” (2002) Journal of Spanish
Cultural Studies, vol. 3, pp. 107-124, “The Pinochet Precedent and the ‘Garzón Effect’” (2002) Amicus
Curiae, 42, July/August pp. 9-15, “The Arrest of Augusto Pinochet: Ten Years On” (2008) Open
Democracy, (29 October) online at www.opendemocracy.net/article/the-arrest-of-augusto-pinochet-
ten-years-on, “El caso Pinochet: 10 años después”, (2008) El Mostrador (11 November) online at

30
have been sustained as never before to prosecute the perpetrators of the human rights
violations of the dictatorship and to create public commemorative space, such as turning
former torture centres into public memorials.5 Since 1998, Chile’s courts have convicted
more former agents of the dictatorship (including generals and admirals) than courts of
any other Latin American society.6 Indeed, Chile’s courts have been more successful in
investigating and prosecuting the state crimes committed under the dictatorship than any
other comparable country that has experienced the aftermath of authoritarianism,
violence and mass atrocity.7 Both qualitatively and quantitatively, this represents a new,
distinct phase in Chile’s struggle to secure truth and justice, and to define collective
memory.8 After all, Chile’s judges were amongst the Pinochet regime’s most loyal
institutional supporters and collaborators. Nonetheless, this human rights turn has been
confined to the Pinochet-era human rights cases. It has not sustained a fully-fledged
rights revolution, extending to other fundamental civil and political liberties.9

This paper examines, explains and reflects on the human rights turn in post-Pinochet
Chile, its limits and the relevance of the Chilean experience to current debates about:

www.elmostrador.cl/index.php?/noticias/articulo/el_caso_pinochet_10_anos_despues/
5
A. B. de Brito, 'Truth, Justice, Memory, and Democratization in the Southern Cone', in A. B. de Brito,
et al (eds.), The Politics of Memory (2001) 119-60; A. Wilde, "Avenues of Memory: Santiago’s
General Cemetery and Chile’s Recent Political History." (2008) 5 A Contracorriente. A Journal on
Social History and Literature in Latin America (3, Spring) 134-169; D. Sugarman, “Courts, Politics and
Transitional Justice. Lessons from Chile” (2009) 36 Journal of Law and Society, “A Battleground of
Memory and Justice. Chile since the 1973 Coup” in Facing the Past: Memory, Memorialisation and
Justice in the Transition from Authoritarianism to Democracy eds. R. Wodak and G. Auer (2009),
"Girare per i diritti umani in 'Post-Pinochet' Cile" in La Forza (Proceedings of International Forum,
Bologna, March 5-6, 2009) (2009) and Incomplete Justice: Prosecuting Pinochet in Chile (2010). See,
generally, S. J. Stern, Battling for Hearts and Minds. Memory Struggles in Pinochet’s Chile 1973-1988
(2006); E. Jelin, "Public Memorialization in Perspective: Truth, Justice and Memory of Past
Repression in the Southern Cone of South America." (2007) 1 International J. of Transitional Justice
138-156; and S. Brett, L. Bickford, L. Ševčenko, M. Rioset, Memorialization and Democracy: State
Policy and Civic Action (2008).
6
With respect to Chile, as of the end of December 2008, the number of cases in progress was 342, the
number of agents charged or accused was 505, the number of agents convicted was 245 (including 45
generals and admirals). Source: Human Rights Programme, Chilean Ministry of the Interior. In the
same period, Argentina, which experienced considerably more cases of murder and disappearance at
the hands of state agents than Chile, had 242 cases in progress, 419 agents charged, and 33 agents
convicted. Source: Centre for Legal and Social Studies (CELS) Argentina.
7
Nonetheless, for many victims of the Pinochet-era human rights crimes, and their representatives, the
wheels of justice move too slowly. They are critical of the uneven pattern of accountability, the
leniency of sentencing in the light of the gravity of the crimes, the on-going uncertainty surrounding
the restriction of Amnesty law, the special “luxury” prisons for former military personnel, and the
failure to bring Pinochet to trial, despite a longstanding, substantial and undeniable paper trail.
Criminal complaints have never been filed for most of the 3000 or so executed persons listed in the
Rettig Report. Of those for whom cases have been filed, the vast majority are languishing in the courts.
On the large legacy of “unfinished business”, see, Amnesty International, “Chile: Memorandum to the
Chilean Government” (2008) accessible from www.amnesty.org/en/library/info/AMR22/009/2008/en
8
See D. Sugarman, op. cit. n.5 (2008), (2009) and (2010).
9
J. Couso, 'The Judicialization of Chilean Politics: The Rights Revolution That Never Was', in R.
Sieder, L. Schjolden and A. Angell (eds.), The Judicialization of Politics in Latin America, (2005), pp.
105-30; L. Hilbink, Judges beyond Politics in Democracy and Dictatorship (2007) pp 203-07.

31
 • Transitional justice.
• The dominance of legalism and its limitations.
• Legal culture.
• The capacity of courts to secure and sustain justice and democracy.
• Cause lawyering.
• The efficacy of human rights.
• And the relationship between law and politics.

The paper derives from over 150 extensive interviews with the key players in Chile
(notably, victims, NGO’s, judges, politicians, lawyers, activists, the military and
journalists), new archival research, non-participant observation of Chilean legal
proceedings, the experience of monitoring and working with Chilean criminal lawyers
during May-June 2008 at the invitation of the British Council and the Denfensoria
Pública, and recent and up-coming publications.10

Dr. Cheah Wui Ling - A legal and historical study of post-WWII Singapore Trials: Death
and suffering on the “hell-ships”
(Assistant Professor of Law, Faculty of Law, National University of Singapore)

At the end of WWII, the victorious Allied Powers held war crime trials throughout
Europe and Asia. In the Pacific region, over 2200 trials were held. Altogether 5600
individuals were tried before military tribunals established by the Allied Powers in over
52 locations. One of these locations was Singapore. Most academic scholarship on post-
WWII justice has focused on the Nuremburg and Tokyo Trials. There has yet to be any
comprehensive analysis of war crimes trials conducted by the British authorities in
Singapore. My research paper aims to fill this gap in scholarship by studying the legal and
historical significance of the Singapore trials.

While the Tokyo Tribunal focused on determining the guilt of Japan’s wartime
leadership, the Singapore trials targeted mid-level officers and foot soldiers. In this paper,
I focus on trials related to the Japanese army’s use of “hell-ships” in the transfer of
POWs by sea during WWII. While there were instances of direct POW abuse, death on
these “hell-ships” occurred largely due to cramped and unhygienic quarters, disease, and
a lack of food and water. The “hell-ship” trials tried mid-level Japanese officers on board
these “hell-ships”, charging them with the ill-treatment of POWs based on their failure
to secure minimal living conditions for POWs and their failure to prevent their
subordinates’ abuse of POWs. In other words, the criminal culpability of these Japanese
officers lay in their failure to act, in their omission and inaction rather than in any act or
decision taken.

My paper explores how these judgments, while harsh by today’s standards of

international criminal law, conveyed particular ideas of the Japanese soldier and
constructed a specific narrative of WWII. The Singapore trials were given heavy press
coverage and served an important social function, playing at the same time to audiences
in Britain and in former British colonies. Their depiction of Japanese wartime cruelty
justified British war efforts and contradicted Japan’s wartime claim of freeing Asian
communities from the shackles of Western colonialism.

10
See Sugarman op cit n. 4 and n.5.

32
These trials also raise important questions on the role of omission in international
criminal law. With the exception of omissions falling under the doctrine of command
responsibility, the concept of omission remains neglected in modern-day international
criminal legal jurisprudence. Today’s war crime trials focus on the most culpable
individuals, namely high-ranking leaders, or the most egregious of war crimes, usually
that committed through positive acts or orders. The “death-ship” trials remind us that in
times of war much suffering results from what was not done, thus raising the question of
whether more attention should be paid to developing a jurisprudence of omission in
international criminal law.

Prof. Jo-Marie Burt - Guilty as Charged: The Trial and Prosecution of former Peruvian
President Alberto Fujimori for Human Rights Violations
(Associate Professor of Political Science, George Mason University)

On April 7, 2009, former Peruvian president Alberto Fujimori was found guilty of four
counts of grave human rights violations and sentenced to 25 in prison. This trial and
conviction of Fujimori is unprecedented: never before has a democratically elected
president been convicted for human rights violations, and never before has a former
head of state been extradited to face trial for such crimes in his own country. In this
presentation, Professor Burt will discuss the judicial proceedings against Fujimori and the
significance of the verdict. Drawing on diverse theories in political science and legal
studies, Professor Burt will explore the factors that made the prosecution of Fujimori
possible and the implications for democracy and contemporary politics in Peru, and she
will discuss the Fujiori trial in the broader context of renewed accountability efforts in
other parts of Latin America. She will also offer reflections about what the prosecution
of Fujimori means for the theory and practice of transitional justice.

Prof. Roberto Gargarella - International Criminal Law and Gross Violations of Human
Rights
(Professor of Constitutional Law, Universidad Torcuato Di Tella)

I want to reflect upon the use of International Criminal Law in situations of gross
violations of human rights. I will focus my attention in the case of Latin America and,
more specifically, in Argentina and the re-opening of the trials against the officers of the
Proceso de Reorganización Nacional, which followed the Barrios Altos decision by the
Inter American Court of Human Rights. I want to critically evaluate those events from
the perspective of an egalitarian theory of justice and a deliberative theory of democracy.

Session 6: Community Shaping of Memory

Dr. Elizabeth Oglesby- Historical Memory and the Figure of the Victim in Postwar
Guatemala
(Latin American Studies, University of Arizona)

In 1999, the Commission for Historical Clarification (CEH), or Truth Commission,

published its 12-volume report on the atrocities of Guatemala’s three-decade armed
conflict. This paper examines the aftermath of the CEH experience and the struggles

33
over how to define and disseminate ideas about historical memory. I focus on the
introduction of “historical memory” into the school curriculum in Guatemala. The
publication of the Truth Commission report opened up “space” for schools and teachers
to consider treating topics that a decade ago would have been taboo. Yet, the actual use
of the CEH report has been minimal, in part because of the lack of curricular materials
and guidelines, and in part because the notions of “historical memory” are conflated to
mean simply the grim profile of the violence.

In Guatemala, the uncritical equation of historical memory with histories of violence

carries the danger of perpetrating racist stereotypes about the past, for example, that
Mayan Indians were passive victims of violence, caught between two armies, manipulated
by outsiders, or simply savage. These are powerful tropes that persist to this day in
Guatemala. In part these tropes are born of a legacy of racism in the country, but they
are reproduced by notions of historical memory that collapse and erase any sense of
historical agency, particularly the history of collective politics. I argue that notions of
historical memory that focus exclusively on the figure of the victim hinder long-term
processes of societal reconciliation. Replacing historical analysis with a rights discourse
limits the options for public discourse about the past.

Kurt Mundorff- Reconciliation Canada? The Indian Residential Schools Truth and
Reconciliation Process and Canada’s Failure of Collective Memory.
(PhD candidate, Faculty of Law, University of British Columbia)

Through Prime Minister Harper’s June 2008 apology, the Indian Residential Schools
Settlement Agreement, and the formation of the Truth and Reconciliation process, the
Canadian government is attempting to move away from the injustices committed in by
its Indian Residential School system. However, these efforts have failed to resonate with
both Aboriginals and non-Aboriginals and the TRC is faltering. This paper focuses on
the TRC, arguing that as a product of political compromise, it is too compromised to
resonate with Canadians. We argue that the TRC’s failures result from a series of
structural and conceptual limitations.

First, the rhetorical framing for this process has focused on acts of sexual and physical
abuse committed against students in schools. While the horror of these acts must be
acknowledged, focusing exclusively on this series of individual events obscures the
collective nature of past misdeeds. In fact, the Indian Residential School system was
intended by the Canadian government to destroy targeted Aboriginal groups. In this
sense, it is a misdeed with both a collective perpetrator and a collective victim. The
focus on individual abuse obscures the collective harm – the damage inflicted upon the
affected Aboriginal groups’ ability to function as groups. It also allows Canadian society
to evade “collective guilt,” as the process focuses on this series of heinous, deviant acts,
committed by a series of disturbed individuals bypassing the state plan to “get rid of the
Indian problem.”

Next, a series of limitations have been written into the TRC mandates restricting its
ability to gather and disseminate information. While many of these limitations have been
common to TRCs internationally, Canada’s position as a stable democracy argues for a
more stringent mandate and a more searching process. The misdeeds in question are
covered by statutes of limitations, so legal liability cannot attach, personal retribution
against perpetrators is unlikely, and Canada’s political structure does not appear to be

34
endangered from the TRC process. Therefore, placing more power in the hands of the
TRC would likely result in a more organic process that would better resonate with
Canadian society – both Aboriginal and non-Aboriginal – without undue risk.
Conversely, maintaining these restrictions threatens to convert the TRC process to a
travelling group therapy session, in which school survivors recount the individual horrors
visited upon them by a cadre of sick individuals. This not only misses the collective
nature of the misdeeds committed, it is unclear whether the recitation of personal trauma
helps, or may actually harm survivors.

Finally, it is now clear that the Canadian government has underfunded and under-
prioritized the TRC. In doing this, the state has replicated many of the problems that
plagued the original residential school system. That is, finding itself with another “Indian
problem,” the state has created another bureaucracy, underfunded it, and ignored it.

Holly E. Porter- Locating Justice: Community-based approaches in northern Uganda

(Development Studies Institute, London School of Economics, and Former Technical
Advisor on Community Reconciliation, Concerned Parents Association-Uganda)

Angelina Atyam, an activist, a victim and Chair of the Concerned Parents Association,
told me that, “Peace is like glass. Once it is broken, it is difficult to repair. The shards of
peace are everywhere.” ‘Local justice’ in northern Uganda is akin to trying to make
something from the shards of peace. The objective of ‘local justice’ is associated with
addressing social harm caused by a wrong, however real motivations are significantly
more complex than this statement suggests. They include securing personal material
benefit, cementing positions of power, asserting ‘tribal’ identity, and exerting social
control in a time of rapid change. Much of the received wisdom generated through
polemic debates surrounding justice in northern Uganda is thin on empirical evidence
and driven by local politics and externally generated advocacy agendas. In order to
answer how local approaches unfold practically the paper draws on observations over
three years of work with a grassroots Ugandan non-governmental organization focused
on community reconciliation. From this perspective I present surprising lessons from
pushing through the very real challenges and contradictions of implementing community
based ‘justice’.

On paper, these processes seem straightforward, predictable and measurable. But the
reality is always decidedly stranger—and more powerful. This field-based analysis looks
at complex expression of grievance, to whom it is directed and how community based
action attempts redress. It self-consciously reflects on the uncomfortable marriage of
NGO ways of working with flexible community driven processes. It explores how
communities wrestle with questions of ‘traditional’ approaches, from traditional leaders
rejecting the relevance of rituals, squabbling over which clans’ version should be
generalized, to Christian community members boycotting ‘demonic’ practices that offend
their faith. Multiple times unexpected realities on the ground gave reason to rethink
assumptions. Where mediation was intended for abducted children instead the demand
was solutions to land conflict. In one project intended to support justice rituals the
expectation was this meant the often-discussed mato oput for Acholi and kayo cuk for
Lango. All ceremonies were initiated from the bottom-up; never were mato oput or
kayo cuk requested. Rather, there was overwhelming demand for a ritual that cleansed
the earth, cooling down the spirits of those who died violently without decent burials--
the dead needed to be reconciled with the living. (Oddly, this activity also turned out to

35
have easily quantifiable impacts; Incidence of “strange” events drastically reduced after
ceremonies were performed.) The paper situates these observations in the experience of
Concerned Parents Association. The parents of the ‘Aboke Girls,’ 139 secondary
students, who were abducted by the LRA in 1996, started CPA. Their collective action
and individual journeys of coming to terms with injustice highlight the dynamics of a
society comprised of individuals deeply affected by violence engaged in social healing
processes.

The conclusions challenge neat conceptualizations of justice, show the limitations of

empirical and theoretical assumptions of external actors and outline considerations that if
engaged seriously will enhance the contribution of interventions and theoretical to pick
up the shards of peace and move forward.

Dr. Patricia Lundy- Exploring ‘Bottom-Up’ Transitional Justice: A Case Study of the
Ardoyne Commemoration Project, Northern Ireland
(Department of Sociology, University of Ulster, Jordanstown, Newtonabbey, Northern
Ireland)

It is generally accepted that truth commissions are more adept at delivering the ‘bigger
picture’ or macro level truths. A fundamental weakness is their inability to satisfy the
majority of victims’ needs for micro level information, and this remains unfinished
business in many post truth commission societies. This paper examines the case study of
a community-based ‘truth-recovery’ initiative. The Ardoyne Commemoration Project
(ACP) was set up in 1998 to commemorate the lives of 99 people from the nationalist
Ardoyne area of North Belfast who died as a result of the conflict. It did so by collating,
editing and publishing the testimonies of around 300 relatives, friends and eyewitnesses.
Many claims have been made about the potentially beneficial consequences of ‘story-
telling’ or ‘truth-telling’ processes. A follow-up study examined, whether such work does
any good, either for the individuals and families who participated or on a wider social
and political level. Positive ‘outcomes’ of the project where said to have been
recognition, inclusivity, a measure of accountability, participation, local ownership,
agency and addressing long-held intra-community conflict related tensions and taboos.
The limitations were the projects single identify focus, partiality of ‘truth’ delivered and
the inability to access official documents and co-operation from all combatant groups in
answering unanswered questions. This paper discusses the ACP and explores its impact;
it will reflect on lessons learned and the potential of ‘bottom-up’ processes as transitional
justice tools in delivering micro-level information and resolving unanswered questions. It
further uses this case study to explore the concept of ‘bottom-up’. Recently, there is a
growing recognition of the need for ‘home-grown’ or ‘bottom-up’ solutions rather than a
‘one-size-fits-all’ model. Despite its growing popularity the concept of ‘bottom-up’ is
ambiguously defined. It is frequently insufficiently spelt out, used interchangeably and
applied uncritically. Indeed the current euphoria for ‘all that is local’ may be in danger of
overlooking important considerations like who are the locals, who participates, co-option
of discourse and whose interests are being served. The paper concludes that there needs
to be clarification of concepts and more careful evidence-based analysis of what
constitutes ‘bottom-up’ transitional justice

36
 Session 7: Challenging Truth and the Establishment of a New
Political Regime
Anna V. Dolidze- Truth and Reconciliation Process as a Method for Transitional Justice
in Georgia
(Human Rights Lawyer, Republic of Georgia, Board Member Center for Reparation of
Victims of Repression by the Soviet Regime)

Since independence from the Soviet Union in 1991 the former Soviet Republic of
Georgia went through a civil war (1991-1992), two secessionist conflicts with South
Ossetia and Abkhazia and a war with the Russian Federation (August 2008). Moreover,
regime transitions took place exclusively through non - electoral means- first President
Zviad Gamsakhurdia was forced into exile in 1992 after a military coup d’etat; Eduard
Shevardnadze, leader of Georgia from 1993 to 2003 resigned as a result of a non-violent
coup in 2003 dubbed Rose Revolution;

Despite the continuing turmoil, Georgia has never gone through any kind of nationwide
reconciliation process. Moreover, no pubic debate about methods and means of
transitional justice has ever taken place. Instead, every government of Georgia has
resorted to criminal prosecution of persons affiliated with the previous government.
Prosecution of former government members and supporters has been accompanied with
allegations of selective justice, revanchism and injustice. These allegations themselves
often turned into new causes for outpouring of public discontent resulting into new
cycles of political violence.

The paper traces approaches taken by the governments of Georgia in dealing with
political crimes committed by previous regimes and documents lack of consistency, lack
of coherent methodology and disregard of rule of law in the processes. Taking into
account the ethno cultural characteristics of the Georgian population and history of the
country, the paper argues that Truth and Reconciliation process as implemented in
republic of South Africa constitutes the best model for Georgia to deal with political
crimes of the past.

Francesca Pizzutelli - Moving away from the South African model: Amnesties and
prosecutions in the practice of 38 truth commissions
(Assistant Legal Adviser - International Justice Project,Amnesty International, United
Kingdom)

The role of the Truth and Reconciliation Commission of South Africa in leading the
country’s peaceful transition from apartheid to democracy has been celebrated as a
model of success. Such wide acclaim naturally leads to attempts to reproduce the South
African model in other countries.
However, the nearly exclusive reference to the South African model in both legal and
policy discussions about truth-seeking mechanisms ignores the flaws and limitations of
the South African transitional experience. In addition, it risks establishing a superficial
connection between truth commissions, as such, and “truth for amnesty” processes, by
which immunity from criminal prosecutions is granted in exchange for the disclosure of
information on past human rights violations.

37
This paper would aim to challenge such an assumption, analysing the practice with
respect to amnesties and prosecutions of 38 truth commissions established between 1974
and 2009. In particular, the paper would show that:

First, the practice of the vast majority of truth commissions is firmly in favour of
prosecution for all perpetrators of human rights violations - in other words, the
“truth for amnesty” experiment of South Africa was an isolated one; and
• Second, the attempts at repeating the “truth for amnesty” model since 1995 have
been unsuccessful, either because draft legislation had to be withdrawn or because
national courts and/or international bodies have declared the legislation to be
unlawful.
In this framework, the paper would have two goals.
The first goal would be to contribute to the legal debate about the legality of amnesties
under international law. In particular, the paper would negate a supposed distinction
between “conditional” or “limited” amnesties, aimed at facilitating reconciliation, and
self-proclaimed “blanket” amnesties, aimed at ensuring impunity.
The second goal would be to contribute to the policy debate surrounding the
establishment of new truth commissions. In particular, the paper would contest that the
South African model can be used either as a practical model for future truth
commissions; or as a broader model to understand the role of truth commissions in
situations of transition. Recent case studies would suggest that the South African model
may become a cheap alternative to prosecution and an easy way of responding to
international pressure, when the government lacks the will to seriously deal with past
human rights violations.
The paper would be supported by substantive research, principally based on direct
sources, including some previously unavailable documents located in the archives of the
International Secretariat of Amnesty International in London.

Filipa Raimundo- Should we talk about post-transitional justice? Lessons from the
Iberian and Central European democracies
(PhD Researcher, European University Institute, Florence, Italy)

We used to think that dealing with the past was an issue of regime changes. Yet most of
young European democracies are dealing with the past either for the first time or again
twenty and thirty years after the “third-wave” of democratizations - vide the cases of the
“Law of Historical Memory” in Spain and the “Lustration Law” in Poland, both adopted
in 2007. In these cases, democracies have adopted reparation laws, vetting measures,
symbolic measures, acknowledgment and apologies, new archival regulations, etc. But
there are also cases in which the democratic transition seems to have, to a certain extent,
“closed the books” on the past.

This paper will address the question: why is it that some democracies bring back the
authoritarian past into their political agenda? While revisiting the theoretical foundations
of the concept of transitional justice, this paper proposes the concept of “post-
transitional justice” as a better tool to analyse these processes after democratic
consolidation.

Based on preliminary findings, I will suggest that those initial choices constrained by
factors as the mode of transition, the nature of opposition forces, or the proximity with

38
the highest repression – to mention some of the most quoted – tend to revert its effect
on the long run when combined with generational replacement, party system
consolidation and the re-integration of former elites. In other words, a pacted transition
followed by a non-punitive process may be more likely to produce new debates on the
past as the party system consolidates; a non-punitive process carried out by reformist
elites may be challenged as generational replacement takes place; and the distance
towards the hardest episodes of repression may be considered to provide the necessary
conditions and mature knowledge for historians and politicians to produce a more
accurate interpretation of the past.

Session 8: Institutional Reform

Lars Waldorf- Linking Transitional Justice and DDR

(Director, Centre for International Human Rights; Lecturer, MA in Understanding &
Securing Human Rights, Institute of Commonwealth Studies, University of London)

Transitional justice mechanisms are much less generously supported than DDR
programs. To give just one stark figure: in 2005, none of the 20 countries with DDR
programs had implemented a reparations program for victims. This clearly reflects the
international community’s priorities: former combatants over current victims, peace over
justice. That makes some sense, of course. After all, ex-combatants are potential
“spoilers” of a peace process in the short-term in a way that civilian victims rarely are.
Yet, this discrepancy is still deeply troubling: perpetrators of violence are rewarded while
innocent civilians get little or nothing, perhaps creating a moral hazard for the future.

DDR programs coexist or overlap with transitional justice mechanisms in several post-
conflict states. They are usually run by the same national governments, funded by the
same donors, and work with the same civil society and community-based organizations.
But there is little, if any, coordination between the two – at any of these levels. This is
largely explicable because of their different beneficiaries and aims: ex-combatants and
security, on the one hand, and victims and justice, on the other.
With the UN’s adoption of an “integrated” approach to DDR in 2006, the divide
between DDR and transitional justice is slowly starting to narrow. This paper will look at
how transitional justice and DDR might be linked in ways that are mutually reinforcing.
The conclusions are necessarily tentative because both are still ‘adolescent’ disciplines
and there has been little empirical testing of their assumptions and impacts. Also,
connections between demobilization benefits and justice measures – including
conditionalities – are being tried for the first time in on-going cases, including Colombia.

Adam Czarnota- Lustration, decommunisation and the rule of law

(Professor and Co-director Center for Interdisciplinary Studies of Law University of
New South Wales, Sydney, Australia)

In the paper I review the lustration law and policies in: Poland, Hungary, Czech
Republic, Romania, Bulgaria, and Lithuania. I try to show similarities and differences in
lustration and decommunisation adopted in particular countries. I also present the
overview of the European Court of Justice decisions regarding lustration and human
rights. The thesis I try to argue is that lustration laws and policies adopted after the

39
collapse of communism were necessary but not sufficient preconditions for establishing
the rule of law and democratic structure in former communist states.

In the paper I also discuss the character of former communist states and the specificity
of post-communist transformation as well as character of transitional justice in post-
communist transformation processes. I claim that dealing with the past should be
perceived as constitutional process for the countries in question.

Antoine Buyse- Importing International Human Rights Law in a Post-Conflict Society:

the Experience of the Bosnian Human Rights Chamber
(Assistant Professor, Netherlands Institute of Human Rights (SIM), Utrecht University)

Post-conflict states often lack a judicial tradition which complies with international
notions of the rule of law and respect for human rights. When local laws, regulations and
policies openly defy such principles, it is sometimes necessary to take recourse to
international human rights law to re-establish the rule of law. The problem with such an
approach, however, is that international human rights standards are not specifically
geared towards the needs and challenges of post-conflict societies. Thus, a judicial
intermediary is needed to interpret international norms in the light of local conditions.
This paper will study this issue looking at the practice of the Human Rights Chamber,
which was established in Bosnia and Herzegovina in 1995 by the Dayton Peace
Agreement. The Chamber with its composition of both international and Bosnian
members was most suited to perform this exercise in judicial translation.

The Bosnian Human Rights Chamber is in many ways a precursor of the current hybrid
tribunals established under international criminal law. The underlying rationale for
choosing a hybrid form is the same in both cases: on the one hand the aim is to prevent
purely local justice which may be severely tainted by the armed conflict (partiality,
victor’s justice, lack of capacity and expertise. On the other hand the goal is to avoid the
administration of justice which is too detached – geographically, culturally, and practically
– from the situation in the post-conflict society. Since the Bosnian Chamber was able to
avoid both extremes, it is an extremely valuable case study to evaluate the operation of a
hybrid form of transitional justice. Because of the common rationale, the value of
assessing this extends, beyond a restorative justice and human rights context, to a
criminal justice context as well.

The Chamber implicitly applied a ‘thick’ notion of the rule of law. Its decisions served as
signposts in the discriminatory and polarized judicial landscape that characterized post-
conflict Bosnia. The work of the Chamber was instrumental in the international
reconstruction effort, which was not only geared towards security and economic
recovery, but also towards the re-establishment of the rule of law. It included such core
issues of reconstruction as the restitution of property and the fair functioning of justice.
The paper will review how the Chamber interpreted, in a flexible way, the European
Convention on Human Rights in the local Bosnian post-conflict context as an example
of judicial translation. This will yield broader insights on the application of international
human rights standards in transitional justice contexts.

Paul Clark – Transitional Justice and Institutional Design: Towards a Structural Theory
(Public Law Team, Law Commission, London)

40
The range of institutions which collectively form the subject matter of the discipline of
“transitional justice” sheds light upon a number of design variables. In creating and
implementing transitional mechanisms, choices are made between them: punishment or
forgiveness; truth or justice; international or domestic; prospective or retrospective; etc.

Current literature and practice, it is suggested, orientates institutional design choices to

respond to outcomes: the substance of what transitional justice might achieve. The key
concern seems to be the extent to which the envisaged transitional mechanism will
diminish impunity, effect catharsis, reform public institutions, provide reparations to
victims, etc. This is most prevalent in relation to those transitional projects which are
rooted in an international source.

I argue that this approach seeks to mask the effects of another (prior) set of institutional
design variables: those of an essentially structural nature. Such matters include choices as
to which actors are engaged in a particular process and whether the relationship between
those actors is public or private in nature. For example, processes such as the
International Criminal Court’s reparations scheme, an inter-state claim before the
International Court of Justice and a purely domestic form of compensation, may all lead
to some form of collective reparations, as an end product. The choices between these
mechanisms, I suggest, would exert profoundly different effects from a transitional
perspective.

As well as providing a potential framework for future institutional design, this structural
lens facilitates a deeper understanding of existent transitional mechanisms. In particular,
it seeks to examine more carefully the sources from which a new, and at least partially
autonomous, legal order is supposed to emanate. International criminal tribunals, for
example, purport to embody the international communitarian impulse – a by-product of
the supposed disintegration of state sovereignty (which is in marked contrast to domestic
prosecution). In this structure, the state no longer plays the mediating role between
individual right and collective liberty, urging us toward a truly “public” international law.
On the other hand, the substantive and procedural norms in play exhibit many of the
traits of private law, not least the concept of reciprocity and differentiation in treatment
as a consequence of amount of power held. Rather than evidencing a shared formal
commitment to the achieving an outcome, international criminal law may be better
understood, in view of its structure, as the result of the ontological insecurities of
international lawyers or may (rather less plausibly) seek to promote the claims of non-
state actors.

This structural analysis will be employed to draw out implications of mechanisms

including those mentioned above, as well as lustration, vetting, transitional UN
administrations and truth commissions, with examples provided by Sierra Leone,
Cambodia and East Timor. Conclusions include alignment of substantive transitional
justice with ideas of “normal” justice, while also highlighting the need for transitional
justice to address the issue of coordination between normative processes.

41
 Third Plenary: IT’S ALL JUST POLITICS
Dr. Victor Peskin- “Trials of Cooperation,” State Defiance, and the Changing Politics of
Global Justice from the Yugoslavia and Rwanda Tribunals to the International Criminal
Court
(Assistant Professor, School of Global Studies, Arizona State University)

The lack of enforcement powers is the central predicament facing the contemporary
international war crimes tribunals. In the absence of such powers, how, if at all, can
today’s international tribunals obtain the cooperation needed to investigate atrocities and
prosecute war crimes suspects? This paper addresses this fundamental question by
examining the politics surrounding efforts by the UN International Criminal Tribunals
for the Former Yugoslavia (ICTY) and Rwanda (ICTR), as well as the International
Criminal Court (ICC), to obtain cooperation from states implicated in mass atrocity.

The paper draws on the author’s conceptual framework of a “trial of cooperation” to

explain how the political battles over state cooperation constitute a three-way interaction
between the tribunals, targeted states, and influential international actors. The paper pays
close attention to the important role played by the tribunal chief prosecutors, with a
particular focus on evaluating the efficacy and ethics of a range of adversarial and
conciliatory strategies they have employed to leverage cooperation from targeted states
and influential international actors.

A main objective of the paper is to explain how the politics of state cooperation – and
the conceptual framework of a “trial of cooperation” (a framework originally devised to
explain the political dynamics of the ICTY and ICTR) – is changing with the emergence
of the ICC and its current involvement in several African countries. The paper will
explain how distinct features of the ICC – such as its legal structure, its more deferential
relationship to state sovereignty, and its tenuous global political support – have shaped
the ICC chief prosecutor’s pursuit of state cooperation.

Barney Afako- The Politics of Local Justice in Northern Uganda

(Legal Advisor to the Ugandan peace negotiations)

Despite a succession of rebellions in northern Uganda, for many years, after Yoweri
Museveni took power in early 1986, justice was not widely debated in northern Uganda’s
communities. The Lords’ Resistance Army’s (LRA) war of the early 1990s flowed directly
from the insurgencies that greeted Museveni’s seizure of power, which had displaced
from office a predominantly northern Government. By the mid-1990s, insurgency and
counterinsurgency in the north had left a fresh legacy of human rights abuses and
displacement, accentuating ethnic, political and social grievances. Only in the latter part
of that decade did the debate on justice emerge; as part of a political discourse between
community representatives and the Kampala government on the most effective ways of
ending the conflict. All politics in northern Uganda has been about bringing the war to
an end. Justice initiatives, whether from the centre, or the international sphere, did not
escape the political prism. All are judged by their effects on the war. The concept of
formal justice was quietly interrogated and found wanting. In its stead, community-based
justice was proposed because it was seen as having a higher chance of unlocking the war
impasse. Northern communities had judged that the external insistence on formal justice
would prolong the war, to the detriment of the community alone. Communities also
lacked confidence in the capacity of formal justice systems to understand and adjudicate

42
credibly, and even-handedly, the manifestations of the conflict in all its nuances. More
subtle and locally based methods of accountability were required. However, the notoriety
of the LRA’s crimes galvanised a wider national and international justice response, which
has come to dominate the debate on justice in Uganda. The International Criminal Court
leads the charge. The old political question remains: who will pay the price for formal
justice in Uganda?

Dr. Suzannah Linton- Not just about atrocities: Dealing with the legacies of the past in
Asia
(Associate Professor, The University of Hong Kong)

In Bangkok in April 2009, the speaker’s 250 page study into how 12 Asian countries have
dealt with their legacies of armed conflict, repression and human rights violations was
presented to, and discussed with, a group of some 40 regional experts working in this
area. This Asia-focused study had been commissioned by Professor Cherif Bassiouni of
the International Institute of Higher Studies in Criminal Sciences (ISISC) as part of his
global study on Post Conflict Justice, itself part of a European Commission-funded
project on Fighting Impunity and Promoting International Justice. The carefully selected
regional experts came from across Asia, and included judges from relevant courts, ‘truth'
and other commissioners, academics, lawyers, political scientists, historians, sociologists,
international relations experts, analysts from think-tanks and UN staff. The presentation
that will be given at this June 2009 Oxford conference will provide an overview of the
speaker’s study on Post Conflict Justice in Asia, and draw on some of the fascinating and
important discussions and concrete recommendations that emerged in the course of the
Bangkok conference.

Session 9: Enacting Transitional Justice: Reparations and Political

Apology
Claudia Gazzini- Libya: a success story for Transitional Justice?
(DPhil candidate, St. John’s College, Oxford)

In August 2008 Italian Premier Silvio Berlusoni and Libyan leader Muammar Qaddhafi
ratified historical agreement according to which Italy will pay 5 billion dollars over the
next 20 years to compensate Libya for Italian colonial rule. Under a tent in Benghazi, in
Libya’s eastern province where in the 1920s the bulk of anti-Italian armed resistance took
place, Berlusconi also apologized for wrongs committed under Italian colonial rule. As a
result of the violence of Italian colonialism in Libya, which lasted from 1911 to 1943,
more than 100,000 Libyans are believed to have died, many in desert prison camps and
in penal colonies in southern Italy.

Italy’s apology to Libya and its pledge to a compensation package marks the first time
that a former colonial power agrees voluntarily to provide monetary compensation to
settle colonial-era disputes. Hailed by Qaddhafi as a “huge moral, political and material
achievement” for Libya, the treaty can also be considered a success story for Transitional
Justice. Although Libya has not undergone any transition to democracy and is still a
fiercely authoritarian regime, over the past 30 years the Libyan authorities have been
adapting Transitional Justice literature and methods for their own pursuit for reparations
from their former colonial master. The Markaz Jihad al-Libiyyin, a Libyan government-
funded institution for the study of the country’s colonial history, has repeatedly stated

43
that Transitional Justice was the inspiration for his country’s quest for reparations and
for their mammoth oral history projects.

This paper shall explore the way the Libyan government adapted the ideas Transitional
Justice for its own quest for reparations. A country rarely studied, Libya provides an
interesting yet problematic case study to evaluate how the reparation politics differ in
theory and in practice. For years the Libyan Studies Center has compiled numerous lists
of those who were killed by colonial authorities in different episodes of particular
violence, yet it has denied the right to restorative payments to the families of these
victims. The payments agreed upon are framed to appear as anti-systemic reparations, yet
a close look at the fine-print of the agreement forces us to question whether they will in
any way contribute to a social transformation of the country. In short, although inspired
by Transition Justice, this treaty resembles a business deal wrapped in the rhetoric of
atonement.

Katherine Liao – Title to be confirmed

(Head of Northern Ugandan Office, UN Office of the High Commissioner for Human
Rights)

Michel-André Horelt- Searching for the ritual in political apologies: A performance based
approach to the analysis of political apologies
(PhD Candidate & Research Fellow, Department of International Relations
Geschwister-Scholl-Institute for Political Sciences, Ludwig-Maximilians-University of
Munich)

n recent years the phenomenon of political apologies has been increasingly discussed in
the field of Transitional Justice. Some scholars and observers have criticized political
apologies as ‘empty’ political rituals. Others have been more enthusiastic and conceived
political apologies as meaningful reconciliation rituals. While both schools apparently
agree on the ritualistic character of political apologies, they have yet failed to focus on
the ritual itself as their analytic point of departure. The ritual of political apologies is
therefore still a blind spot in the research on political apologies. This paper addresses this
gap and sheds light on the ritualistic features of political apologies. It demonstrates that
the analytical focus on the verbal utterances instead of the dramaturgical ritual practices
of public apologies is restrictive and prevents scholars from important insights for the
evaluation of political apologies. The paper
proceeds as follows: After identifying the theoretical and empirical shortcomings of
textual approaches to political apologies, it presents an alternative approach which is
more sensitive to the performance of political apologies. Drawing on speech act and
ritual theory the paper demonstrates that the success and reconciliatory power of political
apologies relies less on their linguistic substance than on their form and shape of
presentation. In order to be successful devices of reconciliation apologies must be
dramatically staged. The paper illustrates its argument with an ethnographic analysis of
the Canadian and Australian apologies which were issued to their respective indigenous
populations in 2008 and critically contrast them with former cases of political apology
where the ritual of the political apology has failed.

44
 Session 10: Prosecutions and Sentencing
Neha Jain- Prosecutorial Discretion and the Promise of Internationalised Criminal Trials
(Research Fellow, Max Planck Institute for Foreign and International Criminal Law;
DPhil candidate in Law, University of Oxford)

The issue of ‘justice versus peace’ has long been at the centre of the controversy on
international prosecutions for crimes in transitional societies. Opponents of international
prosecutions have taken umbrage at the presumption that justice can only be rendered
through criminal prosecutions by an international tribunal often far removed from local
realities and voiced their concern about the potential destabilising effects of such
prosecutions. International criminal lawyers have answered these charges by arguing for a
more holistic concept of peace in which criminal accountability is a prerequisite for a
stable society based on the rule of law. Thus far, this heated debate has rarely progressed
beyond the hallowed corridors of the International Criminal Court: there is a rich
scholarship exploring the tension between the ICC and alternative justice mechanisms.
The bulk of this literature however lavishes its attention on the ICC as the prima donna
of international criminal prosecutions, often treating the individual actors within the
institutional structure as pesky extras, whose interests come as an afterthought. Another
strand of writing develops on the role of particular players in the ICC apparatus, but is
inconclusive on their precise contribution to the peace versus justice conundrum. I
therefore propose to develop a more sophisticated construct of the role of the agent who
occupies the pre-eminent position in deciding between these opposing camps: the
prosecutor of an international(ised) tribunal.

I will suggest possible points of resolution in this debate through a study of a recent
dispute between the Co-Prosecutors of the Extraordinary Chambers in the Courts of
Cambodia, tasked with prosecuting seniors leaders of, and those most responsible for the
crimes committed during, the Khmer Rouge. The dispute centres on how widely the
prosecutorial net should be cast so as to best serve the interests of justice – the
international prosecutor has argued enough evidence exists to investigate more suspects
than the five who have currently been indicted; the national prosecutor has resisted
opening additional investigations on the ground that this would undermine national
reconciliation. This disagreement marks the first ever instance of the prosecutors of an
international tribunal simultaneously exercising their discretion to reach divergent
decisions on whom to prosecute. It also places the ECCC Pre-Trial Chamber in the
novel position of an international judicial organ having to decide between competing
prosecutorial claims of prioritising prosecution over rapprochement. The conflict is
rendered all the more exceptional because the ECCC is the only hybrid tribunal that has
co-equal national and international prosecutors, and which splits the decision making
responsibility between national and international counterparts at all levels of the tribunal.
The dispute therefore implicates issues that challenge the seeming coherence of
international criminal justice: the divergent aims, functions and constituencies pursued by
actors in domestic versus international trials.

I begin with identifying the salient features of the dispute and considering the extent to
which the ECCC law provides guidelines for its resolution. I then locate the conflict
within the larger debates on exercise of prosecutorial discretion, and the relationship
between alternative justice mechanisms and the ICC. I discuss the extent to which these
debates will be affected by the unique nature of the ECCC as a hybrid tribunal that must
navigate between the interests of its national and international constituencies. Finally, I

45
put forward suggestions for the exercise of prosecutorial discretion and judicial review
which are directed primarily towards the ECCC, but are also instructive with respect to
other international tribunals.

Robert Vincent -Reform of the International Criminal Tribunals and the Special Tribunal
for Lebanon
(Former Registrar of the Special Court for Sierre Leone)

The International Military Tribunal at Nuremberg and the International Military Tribunal
for the Far East are generally considered to be the predecessors of the modern ad hoc
and hybrid tribunals. The recent years have seen the rise of international criminal
tribunals on the international legal scene. The most recent international tribunal is the
Special Tribunal for Lebanon (STL). Although the Special Tribunal for Lebanon is, by its
nature, the first terrorist tribunal, it unsurprisingly shares some of the main characteristics
of the earlier international criminal tribunals. But it is also very different in a number of
respects, both in terms of its structure and administratively, building perhaps on lessons
to be learned from the experience of the earlier tribunals.

When considering the development of those tribunals, it is important to realize that a

‘one size fits all’ approach should not be applied. This is especially the case with hybrid
tribunals, since they are institutions often functioning in entirely different circumstances
from each other. For example, the location may be either inside or outside of the country
where the conflicts or the crimes have taken place. The STL is located in the Netherlands
primarily because of security concerns, which poses significant challenges in maintaining
a profile in the Middle East.

There are other important factors related to the creation of the STL in comparison with
other international tribunals. Unlike the process involved in the creation of some other
hybrid tribunals, the Lebanese government was actively involved in negotiating the STL’s
Agreement and Statute, albeit that due to a Parliamentary standoff, the UN Security
Council formally created the Special Tribunal under its Chapter VII powers. The funding
of the STL is established partly through voluntary contributions and partly through
contributions from Lebanon and not through the UN general budget. In comparison
with other existing hybrid and ad hoc tribunals, the mandate of the STL is far narrower.
Additionally, the STL has primacy only over the Lebanese courts. This being said, the
STL is the first international tribunal to exercise jurisdiction solely over domestic crimes.
All of these, and other, elements have lead to a debate in respect of the STL’s future.

In summary, the creation of any international tribunal will always attract a significant
amount of interest within the international community and inevitably draw comparisons
with that which has gone before and, more specifically in recent years, with the
establishment of the permanent International Criminal Court. The objective of the
presentation will be to set the scene and then examine the nature and impact of the
Special Tribunal’s arrival on that scene, with an assessment of whether lessons have been
learned and of the challenges faced by the ‘new kid on the block’.

Prof. Ralph Henham- International Sentencing as a Force for Achieving Peace through
Justice
(Professor of Law, Nottingham University)

46
The idea that international sentencing might be instrumental in helping to promote
reconciliation and peace in societies ravaged by war or social conflict is superficially
attractive. However, beyond the political rhetoric of international relations it is difficult
to visualise exactly what this might mean, except in purely abstract terms. The problem
stems from the fact that our perceptions of ‘international criminal justice’ are relative and
contextual, so that it appears futile to argue that it has some kind of instrumental force
having significance at both the international and local level. However, this is exactly what
we, as individuals and citizens, are led to believe. The trial structures purporting to
deliver ‘international criminal justice’ and the values it represents are depicted as
universally relevant and its outcomes applicable wherever international crimes are alleged
to have been committed, irrespective of context. In order to deconstruct this myth, this
paper begins by highlighting some of the problems which afflict sentencing in
international criminal trials. It then goes on to suggest that there are several obstacles
which appear to hamper the notion that sentencing in international trials might be
viewed as an instrumental force for achieving ‘justice’. The analysis then turns to whether
international sentencing is capable of playing a greater, more constructive, role in
achieving ‘justice’ for victims and communities in post-conflict states, and considers how
such an objective might be realised. The paper concludes with some broader speculation
about the capacity of international trial justice to contribute to broader transitional justice
objectives.

Maria Varaki- Of Justice and Other Demons: Legal -Policy and Jurisprudential dilemmas
in the Interests of Justice
(PhD candidate, Irish Centre for Human Rights, National University of Ireland, Galway)

Art.53 of the Rome Statute becomes a big enigma for every international lawyer. It
resides in the core of prosecutorial discretion, whereas at the same time challenges the
limits of international criminal justice within the wider context of transitional justice. A
future clarification of its content and application could provide interesting insights on
legal, policy and jurisprudential questions.

The progressive assessment of article 53 ends up exploring theories of legitimacy,

function and nature of the law. This provision triggers the academic interest of
international criminal lawyers, human rights lawyers and legal theorists (Prosecutorial
Discretion-transitional justice dilemmas-theory of law).

Until recently there was general agreement that this provision might never be invoked
within the Court. It was not a “legal” clause per se and human rights NGOs fiercely
contempt any possibility of future application of art.53. The policy paper of the OTP
issued in September 2007, follows the main rationale of the submissions by the main
non-governmental organizations, stressing the sui generis character of the specific
provision. The paper emphasizes that the exercise of the Prosecutor’s discretion under
Article 53(1)(c) and 53 (2)(c) is exceptional in its nature and that there is a presumption
in favor of investigation or prosecution. Secondly, the criteria for its exercise will
naturally be guided by the objects and purposes of the Statute – namely the prevention
of serious crimes of concern to the international community through ending impunity.
Thirdly, that there is a difference between the concepts of the interests of justice and the
interests of peace and that the latter falls within the mandate of institutions other than
the Office of the Prosecutor.

47
In January 2009, interestingly enough, a coalition of Sudanese NGOs requested the Pre-
Trial Chamber I to expand its review power in relation to the Prosecutor's Applications
for Arrest Warrants of 14 July 2008 and 20 November of 2008. In February 4, the Pre-
Trial Chamber I declined the specific application (under rule 103) analyzing almost
exclusively the interests of justice claim, raised by the application.
This decision and the subsequent application for leave to appeal by the NGOs, reveal an
interesting argumentation regarding a series of legal, jurisprudential and policy issues that
the interests of justice provision entails. My critic will focus on:

1. The content given to the interests of justice by the applicants as a separate

ground to support their application. The three other grounds referred to peace
process concerns, negative perception of the court in Africa and preference for
alternative justice mechanisms.

2. The position of the PTC on prosecutorial discretion and the limits of judicial
review during the request for arrest warrants, emphasizing the difference with the
complementarity provision of art.17

3. The “dilemma” of peace v. justice, claimed for first time before the Court and
the thorny question of the political question v. a strict application of the law,
addressing the question of the overall role and limits of International Justice as a
component of transitional justice.

Session 11: Conceptualising "Local" Approaches To Transitional

Justice

Felix Ndahinda- Making Sense of Local Justice in the African Great Lakes Region: A
Comparative Overview
(PhD Candidate, Faculty of Law, University of Tilburg)

Since the proceedings of the South African Truth and Reconciliation Commission and,
the instauration of Gacaca Courts in Rwanda in the aftermath of the 1994 genocide, the
idea of revisiting tradition and local culture as a means of dealing with the legacy of
conflicts has increasingly gained currency; including in the troubled African Great Lakes
Region. Burundi has mulled the idea of reinstating the traditional institution of
Ubushingantahe to deal with the past and; Uganda publicly expressed the desire to use
the mato oput process and ritual ceremony of the Acholi people to deal with crimes
committed in the Northern part of the country. The complexity of the conflict in D. R.
Congo and the country’s demographic composition in terms of ethnicity complicate the
idea of a single form of local justice operational across the boundaries of particular
groups. Involvement of external actors in the latter conflict further limit
Proponents of local justice mechanisms point to the limitations of the classical court
systems in dealing with the aftermath of mass violence. Besides the ability to deal with a
large number of cases as the Gacaca Courts have demonstrated, it is argued, among
others, that the pursuit of reconciliation and the expediency of trials are additional
advantages of these tradition-based forms of justice. Many critiques highlight the need
for retribution and appropriate reparation; the requirement of ensuring respect for due
process guarantees of crime suspects and; political manipulations of these processes.

48
They also denounce the reinvention of tradition in dealing with unprecedented problems
as far as traditional structures and processes are concerned.
In an effort to be more concrete, this analysis will revolve around the history of conflict
and violence in Rwanda, Burundi (eastern) D. R. Congo and Uganda. By considering
each situation in time and space, the analysis will highlight the limitations of both the
classical courts systems and the few instituted or proposed transitional justice
mechanisms to exhaustively and satisfactorily deal with crimes of unimaginable
proportions committed throughout a long period of time. Grounding on the work of
Gacaca courts in Rwanda, the analysis will argue that an astucious use of traditional
processes is more likely to contribute to efforts aimed at mending society in such
contexts as Rwanda, Burundi and Northern Uganda. However, in the more intricate and
diverse Congolese landscape where no single tradition can be invoked to deal with the
past, it will be argued that forms of traditional justice of outside inspiration but tailored
on local realities and values should be imagined and enforced. In any of these cases, it
will also be argued that the realisation of legal or transitional justice initiatives have been
and will likely be conditioned to the restoration of (some) state authority.

Nevin T. Aiken- Decentralized Transitional Justice in Northern Ireland: Assessing the

Contributions to Intergroup Reconciliation
(Doctoral Candidate, SSHRC Doctoral Scholar and CCHS Human Security Fellow
Department of Political Science, University of British Columbia)

Transitional justice strategies have proliferated in recent decades based, at least in part,
on the assumption that they remain a crucial component of postconflict peacebuilding
processes by helping divided societies reconcile following periods of intrastate violence.
However, the ways in which transitional justice strategies are causally linked to
postconflict reconciliation tend to remain unspecified and under-theorized in current
scholarship – a seminal gap which this paper begins to address.

This paper opens a new channel of interdisciplinary dialogue between transitional justice
scholarship and social psychology – the field of study that has advanced perhaps the
farthest to date in the study of the dynamics of intergroup reconciliation. It contends
that uncovering the links between transitional justice and reconciliation in divided
societies requires a critical rethinking that begins by engaging with the issues of group
identity at the root of mass violence and considers the role of transitional justice
interventions in overcoming these collective antagonisms. Employing current social
psychological theories of intergroup reconciliation and applying these for the first time to
the study of transitional justice, this paper provides new insight into the relationship
between transitional justice and reconciliation in post-conflict societies.

As an initial empirical test for these theories, this paper investigates the unique local
program of transitional justice that has emerged in Northern Ireland following the
Belfast Agreement of 1998. While no formal criminal tribunal or truth commission has
been undertaken to date to investigate the violent legacy of the Troubles in Northern
Ireland, a ‘decentralized’ approach has evolved in recent years combining widespread
community-based reconciliation initiatives with a more ‘piecemeal’ approach to dealing
with the past through interventions by governmental and non-governmental actors.

Drawing on insights derived from a series of 45 expert interviews conducted in Northern

Ireland during the Spring of 2008, this paper provides a qualitative assessment of the

49
contributions that this decentralized approach has made to ongoing processes of
reconciliation between Protestant/Unionist and Catholic/Nationalist communities. In
so doing, the paper explores the impact that Northern Ireland’s unique approach to
transitional justice has had on the promotion of instrumental, socioemotional, and
distributive forms of ‘social learning’ between these communities – all of which are
considered in social psychological frameworks as necessary, though perhaps not
sufficient, causal conditions for reconciliation and sustainable peace in post-conflict
societies. This paper concludes by considering the implications of these findings for
current policy debates over ‘best practice’ in transitional justice and, in particular,
discusses what lessons for the broader field of transitional justice might be learned from
the local decentralized strategy employed in Northern Ireland.

Abdulmumini A. Oba- Oputa Panel: Nigeria’s Scuttled Experiment With Transitional

Justice
(Senior Lecturer, Faculty of Law, University of Ilorin, Ilorin, Nigeria.)

On June 14, 1999, President Obasanjo announced the establishment of a Human Rights
Violations Investigation Commission (popularly called “the Oputa Panel”) to investigate
human rights abuses in Nigeria from January 15, 1966 till May 28, 1999. Apart from two
brief interludes of civil rule, the country was under military regimes during the period.

The Panel faced many formidable problems even before it commenced work. It suffered
from an identity crisis as it was really a judicial tribunal established to look into political
assassinations which tried to metamorphose into a vehicle for transitional justice. It also
suffered credibility problems as its membership was lopsided in terms of ethnicity and
religion – two factors of fundamental importance in Nigeria.

In spite of these handicaps, the Panel swung into action with much vigour. The Panel
however ran into a major problem when the Supreme Court held that federal
government had no power to establish the Panel. Although the Panel went ahead with its
business and submitted its report, the government neither published the report nor acted
on it.

The Oputa Panel represents a missed opportunity at transitional justice in Nigeria. It was
“truth without reconciliation” as the victims that testified before the Panel got no
remedy. Secondly, by focusing on civil and political rights, high profile cases and opting
for retribution, the Panel lost sight of the big picture – the culture of impunity that has
permeated the country’s leadership and its security institutions under both military and
civilian regimes which has resulted in routine widespread violations of human rights of
ordinary citizens. These violations have continued to plague the nation even when those
identified by the Panel as suspects have long left power. Also, many important socio-
economic rights continue to be neglected.

There is need for the country to address the traumas of decades of repressive military
regimes. Transitional justice models present a mode of doing this. Emphasis should not
be on revenge but mainly on preventing the rampart human rights violations that have
persisted in the country. These are pertinent issues that should be addressed and urgently
too.

50
Martien Schotsmans- The transitional justice gap in Sierra Leone : is there a need to fill it
an can tradition-based justice do the job ?
(Researcher, Human Rights Centre, University of Ghent-Belgium)

The presentation wants to examine the views in current Sierra Leone with regards to the
existence of a possible transitional justice gap, based on recent field research. After a
brief overview of what has been done so far, the various and sometimes opposing views
with regards to the need for more accountability and reconciliation will be considered.
The question is whether tradition-based justice or reconciliation should and can fill this
gap and what the main challenges are.

In the aftermath of the extremely violent conflict in Sierra Leone which lasted from 1991
till 2002, some transitional justice has been provided by the Special Court for Sierra
Leone and the Truth and Reconciliation Commission. Given the blanket amnesty, except
for international crimes, declared by the Lomé Peace agreement of 1999, no prosecutions
took place at the national level. Certain local reconciliation activities are ongoing.
Reparations and some institutional reform have taken a modest start. Is there a
transitional justice gap in Sierra Leone ? And if so, is there a need to fill it ? Views in
Sierra Leone vary considerably regarding this topic, and for various reasons.

Traditional institutions and traditional or customary justice still play an important though
contested role in people’s daily lives in Sierra Leone. The importance of traditional
culture has been acknowledged in the framework of the transitional justice process, i.e. in
the mandate of the Truth and Reconciliation Commission, which has only used this to a
limited extent. The presentation will give an overview of some ongoing reconciliation
and reintegration initiatives and the use they make of tradition-based (justice) practices
with regard to the past. The conclusion is that there still is a need for more reconciliation
initiatives both with regard to the past and the present and that tradition-based practices
can be (part of) the answer.

Session 12: Negotiating Justice in Transition

Christopher Lamont- Law, Politics and Legitimacy: Negotiating State Co-operation with
the International Criminal Tribunal for the former Yugoslavia
(Postdoctoral Fellow, Transitional Justice Institute, University of Ulster, Northern
Ireland)

Absent direct enforcement capabilities international criminal tribunals have had to rely
on third party enforcement agents to bring recalcitrant states into compliance with their
international legal obligations. This was in particular evident with regard to the
International Criminal Tribunal for the former Yugoslavia (ICTY)’s efforts to secure
custody of accused persons, evidence and witnesses from across the former Yugoslavia.
While the ICTY’s Office of the Prosecutor (OTP) publicly emphasized a binding legal
obligation for states to co-operate with the Tribunal, the OTP’s engagement with third
party enforcement agents, such as the United States and European Union member states,
introduced bargaining, negotiations and at times concessions to its pursuit of
international criminal justice. However, despite the ICTY’s reliance on third party
enforcement agents, understandings of the domestic resonance of international
negotiation and bargaining processes within recalcitrant states remains underdeveloped.

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This paper will explore the above in the context of Croatian state co-operation with the
ICTY.

I argue that compliance outcome focused research agendas that attribute meaning to
compliance acts must take into account rhetorical rationalizations of compliance on the
part of rule violating states that serve to reframe the meaning of both compliance and
non-compliance acts. As compliance acts occurred in the context of international
bargaining process, domestic elites were able to reframe compliance acts in a manner
consistent with dominant local understandings of the recent past. In the case of
Sanader’s Croatia, compliance was framed as consistent with the Croatian Democratic
Union’s attempt to defend the governing party’s jus ad bellum narrative of the 1991-1995
war in Croatia, known domestically as the Homeland War. Rather than adopting a shared
understanding of compliance with the ICTY and third party norm enforcement agents,
such as European Union member states, Croatia’s framing of compliance acts permitted
Sanader’s government to both comply with ICTY arrest and transfer orders, without
challenging the party’s dominant narrative of the Homeland War.

Dr Jernej Letnar Černič- Responding to Crimes Against Humanity committed in Slovenia after
the Second World War

(Phd Graduate of University of Aberdeen, Senior Researcher at Law Institute, Ljubljana,

Slovenia)

This paper explores responses to crimes against humanity committed on the Slovenian
territory in the months following the end of the Second World War. As many as one
hundred thirty thousands person are estimated to have been extra-judicially killed in the
months following the end of the Second World War by Secret Police controlled by
Yugoslav Communist Party. Almost six hundred mass grave sites have been so far found
on the Slovenian territory. In August 2006, the Slovenian courts refused to open an
investigation and start criminal proceedings against Mitja Ribičič on charges of crimes
against humanity. This paper presents the decision of the Slovenian courts and attempts
to analyse its reasoning.

Discussion on crimes committed on Slovenian territory after Second World War is often
underpinned by deeply-rooted emotions that suppress the argumentative dialogue and
reasoning and has led to long-term polarization of Slovenian society on left and right
forces. There are no simple answers to the fundamental questions raised by cases such as
Prosecutor v. Ribičič. The challenge posed by transition from oppression to democracy is
to account for the totalitarian regime system and yet to build a new society.

Based on these findings this paper argues that there strong legal and moral grounds for
prosecuting crimes against humanity committed in Slovenia after the Second World War.
The presentation analyses these issues with reference to the decision in Ribičič v.
Prosecutor. It argues that there are several obstacles against domestic prosecution in
Slovenia relating to factors beyond formal and substantive dimension of concept of law.
In this way, it explores alternative responses to crimes against humanity committed in the
Slovenian territory in the months following the end of the Second World War. It can
perhaps be overly simplistic to suggest compromise for difficult legal and political
questions. In the case of crimes against humanity in the Slovenian territory, the various
constituent groups often do not listen to each other or allow for compromise. Until all
politicians realize some form of justice is inevitable in the foreseeable future, and

52
victims’-oriented political parties radically change they way in asking for nothing but
justice, nothing will be done to effectively tackle these crimes. Though the present
situation may appear grim, consensus does appear to be growing for meaningful and
continued reform.

Liz Evenson- Peace and Justice: Lessons from the Field

(Counsel, International Justice Program, Human Rights Watch)

The long-running debate about whether justice interferes with prospects for peace has
heated up now that the possibility of leaders being brought to trial for atrocities is
increasingly becoming a reality with the functioning of international criminal courts and
the rise of universal jurisdiction. The International Criminal Court (ICC), which is
mandated to investigate and prosecute the most serious international crimes, has already
issued its first arrest warrant for a sitting head of state—Sudan’s president Omar al-
Bashir. That the ICC operates while conflicts are ongoing adds fuel to the fire of the
debate. Diplomats tasked with negotiating peace agreements have argued that the
prospect of prosecution by the ICC has made achieving their objectives more difficult.
Facing understandable pressure to bring an armed conflict to an end, negotiators and
others are therefore often willing to put justice to one side. In the short term, it is
easy to understand the temptation to forego justice in an effort to end a war. Human
Rights Watch research over the past 20 years in a number of different countries,
however, has demonstrated that a decision to ignore atrocities and foster a culture of
impunity may in the end carry a high price. While there are undoubtedly many factors
that influence the resumption of conflict, and we do not assert that impunity is the sole
causal factor, Human Rights Watch’s research shows that justice is often undervalued
when weighing objectives in resolving a conflict. Indeed, our research suggests that the
anticipated negative consequences of allowing for accountability (or benefits of foregoing
it) often do not come to pass. Insisting on justice has not necessarily meant an end to
peace talks, while impunity has led to renewed cycles of violence and incorporating
leaders with records of past abuse into the army or government has resulted in more
abuses and has allowed lawlessness to persist or return. In addition, our research shows
that promoting accountability through national and international trials—including
through the exercise of universal jurisdiction—has broader benefits that are worth
consideration in the debate on accountability and peace. This presentation will
briefly highlight some of the ways in which justice has been undervalued in conflict
resolution and will then focus on the broader benefits to the consolidation of the rule of
law and long-term stability, include through the creation of a historical record to protect
against revisionism and development of domestic enforcement tools. Case studies drawn
from Human Rights Watch’s research include the catalytic effect of prosecutions in
Europe on the opening of domestic courts in Chile and Argentina; reforms in Rwanda
and the countries of the former Yugoslavia triggered by the desire to have cases
transferred from the ad hoc tribunals; and steps taken in each country where the ICC is
investigating to start domestic proceedings.

Herman Von Hebel –Lessons learnt from International Tribunals

(Registra of the Special Court for Sierre Leone)

53
Dr. Debidatta Aurobinda Mahapatra and Dr. Seema Shekhawat -Transitional Justice in
Kashmir: An Urgent Need for Durable Peace
(Post-Doctoral Research Fellows, University of Mumbai)

Transitional justice refers to multiple approaches to address past human rights abuses in
post conflict situations. The concept has increasingly become relevant in the context of
ongoing conflicts like Kashmir. The India-Pakistan conflict over Kashmir since the late
1940s, further complicated with the separatist movements, militancy and radicalism
particularly since late 1980s, has made this South Asian conflict one of the most
protracted global conflicts with a nuclear weapon angle attached to it. Notwithstanding
numerous ceasefires, peace-talks, and CBMs the conflict continues to simmer and exact
heavy men and material damage thus leaving the region gasping for a sustainable peace.

The conflict undoubtedly in its internal and external dimensions has brought enormous
sufferings for the people of the region. It has brought a trail of death, distress,
destruction and displacement for the people caught in the conflict situation. The conflict
situation and violent atmosphere has created a kind of impunity in which the civilians are
at the receiving end due to large-scale human rights violations that include extra-judicial
killings, forced disappearances, torture and rape committed by Indian security forces as
well as militants.

Since 2003 attempts have been made under the grandiose term ‘irreversible peace
process’ (a debatable phrase, besides other factors the recent Mumbai terror attack has
dented its irreversible character) to involve all stake holders to transform the conflict
resolution process in Kashmir. At external level India and Pakistan got involved in a
composite dialogue resulting in some historic CBMs such as opening of intra-Kashmir
routes. At internal level, New Delhi initiated dialogue with separatists and civil society
groups in Kashmir. However, as the paper argues, for the peace process to be sustainable
it is necessary to address all crucial issues and genuine grievances of people in a wider
framework of justice and reconciliation. Despite feeble attempts to make the peace
process inclusive, the process has remained highly exclusive as it ignores the voices of
victims of violence. The prevalent atmosphere, especially after the successful local
elections in December 2008 in which people participated massively and after the
separatists decided not to give boycott call against participation in elections to lower
house of Indian Parliament, provides an unique opportunity in which mechanisms can be
developed to address human rights violations. Impartial enquiries in all the cases of
human rights violations and mechanisms to redress the grievances of the victims would
go a long way in realizing durable peace in Kashmir.

This paper makes the case for transitional justice mechanisms and explores ways for their
effective functioning in Kashmir. It argues for an inclusive peace process in a wider
framework of justice and reconciliation. As conflict ridden societies have employed
different models of transitional justice to promote sustainable peace and as there is
clearly no one-size-fits-all model that can be qualitatively applied to all societies, the
paper focuses on those mechanisms of transitional justice that can be effective in
Kashmir.

54
 Fourth Plenary: JUSTICE IS A LOCAL ISSUE
Prof. Kieran McEvoy –– Truth Recovery and the Local Construction of Transitional
Justice Knowledge: Lessons from Northern Ireland
(Professor of Law and Transitional Justice at the School of Law, Queen’s University)

The report of the British government appointed Consultative Group on the Past recently
recommended ambitious plans for a formalised truth recovery process in Northern
Ireland. The reports suggests a process which would involve a five year 'Legacy
Commission' which would include processes of reviewing and investigating conflict
related cases, conducting a process of information recovery, examining linked or
thematic cases emerging from the conflict and the creation of a Reconciliation Forum -
all at a projected cost of £200 million. Most controversially, the group also
recommended payments to all 'victims' of the conflict, including the families of armed
non-state actors killed - a proposal quickly rejected by the British government. This
paper critically reflects on the plethora of activities within civil society which preceded
that initiative, the influence which such activities had on the report and the broader
lessons to be garned from the Northern Ireland truth process on the ways in which local
and international transitional knowledge is contructed, utilised and disemminated.

Stephen Oola- Cosmetic Justice: Local Perceptions towards the International Criminal
Courts’ Involvement in Northern Uganda and the region
(Lawyer and Lead Researcher on Transitional Justice, Refugee Law Project, Faculty of
Law, Makerere University Kampala)

There is, these days in Africa, a perceived euphoria in the international human rights and
humanitarian circles about a new era euphemistically termed as the “global fight against
impunity.” Impunity has not only become a ‘buzz word’ but punitive justice embedded
in the international prosecutions and the International Criminal Court (ICC) appears to
be the only gospel of justice. Impunity is now a catch phase in the lexicon of all
transitional justice practitioners, donors, human rights activists, United Nations agencies,
opposition politicians or governments and even war lords in Darfur, Somalia and
Afghanistan.

Like other similar buzz words, such as the “global war on terror or weapon of mass
destructions (WMD),” it is rarely defined but used to promote arguments favoring
particular interests. It has acquired both legitimacy and an aura of, if not audition of
sacred-goodness, desirable and inevitable goodies-justice for all irrespective of
circumstances and peoples perceptions.

I argue in this paper that this cantankerous pursuit of punitive justice in all situations,
especially in conflict situations, has by far undermined the credibility of the International
court and adversely affected local perceptions towards international prosecutions, all
thanks to the audacious prosecutorial policy at The Hague Based Court.

Before the recent indictments against Sudan’s’ Omar al Bashir, Northern Uganda was the
arena where the ICC first launched its campaign against perceived impunity by the Lords
Resistance Army. The suspicious referrals to the court, its investigations and indictments
of five top LRA commanders at a time when prospects of a peaceful settlement was
apparent, sparked off a century-debate on peace and justice, as well as, the role of the
international court in conflict and peace building. In northern Uganda however, the

55
debate attracted a third dimension arguing restorative versus punitive justice, a debate
which relapsed into a perception that those who call for restorative justice condone
impunity. Retributivists fronted for formal prosecutions represented by the International
Criminal Court while Restorativists, advocated for Acholi local traditional justice and
reconciliation mechanism of mato oput.

The debate today has assumed a global relevance, given widespread conflicts around the
globe with commission of war crimes in violations of international humanitarian laws. In
Uganda attempts where made during the Juba Peace Process to settle the debate and
achieve peace and justice concurrently under Agenda Item 3, in which parties agreed to
account and reconcile. However, in the face of a standing ICC indictments and arrest
warrant for one party, the talks collapsed without any Final Peace Deal signed. Recent
developments in Uganda and the region after the collapse of the Juba talks and the
coalition attacks on the LRA bases in Garamba meant the credibility of the international
court and perceptions towards international prosecutions lurched from bad to worse.

This paper discusses the inroads and injudiciousness of the ICC in northern Uganda and
the region. It analyses local perceptions towards criminal justice in Uganda, the on going
attempts to create a permanent war crimes court and establish a national reconciliation
forum for Uganda.

Dr. Wendy Lambourne- Outreach, Inreach and Local Ownership of Transitional Justice:
Cambodian Participation in the Khmer Rouge Tribunal
(Senior Lecturer and Academic Coordinator, Centre for Peace and Conflict Studies,
University of Sydney, Australia)

The International Criminal Tribunal for Rwanda (ICTR) was criticised for its remote
location and limited impact on Rwandan experiences of justice and reconciliation. The
International Criminal Tribunal for the former Yugoslavia (ICTY) was similarly plagued
with accusations of being “some distant thing that is not understood at all”. In response
to these criticisms, both tribunals eventually established outreach programs with local
offices to enable people to obtain accurate information directly from the tribunal in each
case. Subsequent research and practice in other countries has confirmed the importance
of outreach to transitional justice. As argued in this paper, only through extensive
outreach can ordinary citizens in countries with large rural populations and limited media
penetration find out about the tribunal and progress of legal trials. The purpose of
outreach is thus twofold: to guard against misperceptions and misinformation which can
undermine the work of a tribunal, and to provide an experience of justice which can
contribute to building peace and reconciliation.

Learning from the failings of the ICTR and ICTY in terms of outreach planning, the
Special Court for Sierra Leone (SCSL) instituted a sophisticated outreach program
involving civil society in the production and dissemination of informational materials; a
weekly radio program; a touring drama group; public lectures and training seminars
targeting the media, traditional leaders, women and others. Plans for the outreach
program began before the SCSL was established, and demonstrates the value of an active
civil society committed to supporting the transitional justice process.

By contrast, the Extraordinary Chambers in the Court of Cambodia (ECCC) appears not
to have learnt from the SCSL, with public affairs dominating the activities of the
combined outreach and public affairs section. To fill the gap in outreach activities, civil

56
society has stepped in with extensive outreach programs involving training workshops
and information sessions being conducted throughout the country, as well as supporting
Cambodians to participate by attending trials as a visitor or witness, or filing a claim for
reparations as a civil party.

In this paper I trace the evolution of outreach as an aspect of transitional justice,

including the approach of the International Criminal Court and the implications for its
effectiveness as a transitional justice mechanism. Going a step further, I also study the
process of ‘inreach’ which is a term I have coined to describe the process of obtaining
ideas, opinions and feedback from local populations about their expectations and
responses to the transitional justice process. Outreach thereby becomes two-way, and
creates the possibility of greater participation and local ‘ownership’ of the tribunal or
other transitional justice mechanism. This local ownership in turn makes the transitional
justice process more meaningful to individuals and communities, and is thus more likely
to promote sustainable peacebuilding.

Session 13: Power - Actors And Agency

Shana Tabak- Women in Transition: Challenges of Transitional Justice & Female
Combatants in Colombia
(Georgetown University Law Center, Washington)

In Colombia’s decades-long armed conflict, between one-fourth to one-third of

combatants are women. This paper addresses the problem of reintegrating female
combatants in Colombia’s violent conflict into civil society after they have left armed
groups. It aims to synthesize contemporary feminist scholarly work on transitional
justice with detailed research on women in Colombia. This paper traces the evolution of
feminist thinking about transitional justice: a first generation focused on developing
international criminal law to recognize the special character of sex crimes against women;
a second generation cautioned that women in post-conflict societies often deny that the
sexual violence they experienced was the worst thing that happened to them (in
comparison, for example, with the murder of their children or the destruction of their
communities); and finally, a third generation of scholars now caution that women during
conflicts often, paradoxically, experience greater autonomy and less domestic violence
than the post-conflict status quo.

This paper is primarily concerned with understanding how this most recent approach
toward gender and transitional justice might apply to a subject that is not explicitly
contemplated by these theorists: the situation of female combatants. The existence of
female combatants in conflicts worldwide is a phenomenon that is under-documented
and under-analyzed. Consequently, it poses unique challenges for transitional justice and
human rights mechanisms’ treatment of gender issues.

Of the feminist scholarship criticizing transitional justice, five central themes are
examined: (A) the false dichotomy between the “pre” and the “post” conflict; (B) the
dominance of sexual violence within transitional justice; (C) the tendency to essentialize
women’s experiences; (D) the perpetuation of the public/ private dichotomy transposed
onto transitional justice mechanisms, and finally; (E) complications regarding identity of
victims, perpetrators, and others.

57
Although this paper examines each of these themes, not all have a specific application
with regard to the situation of Colombian female combatants. They are explored here,
however, because they provide critical backdrop of general concerns regarding gender
and transitional justice. This backdrop provides a useful starting point for a more
focused and narrow examination of the applicability of these theories to the experience
of women in combat.

This paper then contributes to the existing feminist scholarship on transitional justice by
examining the additional complication of women who may have experienced all the
horrors of conflict, but who have also been perpetrators or accomplices in some of these
horrors. Utilizing detailed research on the experiences of Colombian women, it critiques
transitional justice approaches from a feminist perspective, and seeks to imagine what a
gender-inclusive strategy might look like in Colombia.

Dr. Frédéric Mégret - Rehabilitation of 'traitors' as 'resisters': a neglected theme in

transitional justice
(Assistant Professor of Law, the Canada Research Chair on the Law of Human Rights
and Legal Pluralism, McGill University)

Whilst transitional justice has focused considerably on the role of perpetrators and
victims of crimes, one figure has often been missing from the theory of transitional
justice, namely individuals and groups who defied oppressive orders to help bring about
a transition or save victims of atrocities. There is no doubt however that many of these
individuals (e.g.: Swiss border guards during the Second World War, Wechmacht
deserters, etc) have encountered significant difficulties in post-tyrannical settings, often
failing to obtain recognition for their deeds, at times ostracized by their own community.
Partly this may have to do with the difficulties of establishing what one did, but it may
also be linked to qualms that transitional regimes have about undermining the idea of the
rule of law precisely as they are seeking to reconstruct it. My presentation will discuss a
few examples of rehabilitation from semi-formal and transnational processes such as
recognition as a "Righteous among nations," to court decisions such as some of those
rendered in post-communist transitions. I will suggest that the ability by a state to
recognize the fundamental legitimacy of breaking the law in extreme circumstances on
the basis of fundamental moral principles is, in fact, one of the most important
contributions that transitional justice can make to the reconstruction of the rule of law.

Susan Harris Rimmer -Reconceiving Refugees and IDPs as Transitional Justice Actors
(Building Democracy and Justice After Conflict Centre for International Governance
and Justice Regulatory Institutions Network, College of Asia and the Pacific, RSPAS,
The Australian National University, Canberra)

This paper will explore the idea of whether refugees and internally displaced persons
(IDPs) could or should become actors in the transitional justice processes taking place in
their country of origin.

International definitions of democracy typically take a minimalist form, simply

associating democracy with regular elections. This forms an inadequate basis for building
democracy in post-conflict societies. A principle of ‘democratic inclusion’ can usefully
guide attempts to develop international standards on democracy. To test the boundaries

58
of this idea of democratic inclusion, this paper conducts a exploration of the difficult
case of refugees and internally displaced persons (IDPs) located outside transitional
justice processes. Current discussions tend to ignore the issue of who is included in and
excluded from transitional justice decisions, including women, children, and displaced
persons.

The significance of this argument lies in foregrounding the ethics of if, how, and when
the international community could include refugees and IDPs in transitional justice
decisions, including constitution drafting, new parliaments, trials, and truth commissions,
but also broader state-building and governance issues such as legislative agendas, security
sector reform, justice sector reform, national development plans, budgets and so on.
Most refugees will return to their country of origin at some point, but there are still
considerable democratic and practical issues to be examined if a general principle of
democratic inclusion to this group while they are outside the border. This is particularly
important when considering caseloads in protected situations, such as Sri Lanka, the
Thai-Burma border, Somalia or Pakistan.

There is no existing study of refugees and IDPs and their relation to transitional justice.
I argue innovative programs in refugee and IDP camps are necessary and could also lead
to improved sustainability of peace-building efforts in the country of origin. For
example, this paper will ask the question - do refugees and IDPs have a right to be
consulted about peace agreements in their country of origin? Populations are often
surveyed about their attitudes to transitional justice options, such as the recent major
surveys of Afghans, Ugandans, and Bosnians; but not one survey has ever asked refugee
or IDP populations their views, even those in neighbouring countries. There may also be
long-term findings about preparing refugees and IDPs to participate in governance
decisions in a broader post-conflict development context.

The UNHCR view is that refugees have a primary interest to be actively involved in
processes that improve the conditions in their countries of origin. The challenge for any
such engagement, similar to refugees seeking to participate in elections in the home
country, is that the refugee would need to forego their anonymity and expose the fact
that they have sought refuge elsewhere. This makes refugees sometimes reluctant to
engage as the lack of transitional justice is the very reasons they continue to fear return.
For IDPs there is a clear link to human rights obligations to allow participation of
citizens in political processes. Better research could help overcome some of these
challenges.

Brigitte Mapendo- Women and Transitional Justice- What choice between peace and
justice?
(Director, Africa Initiative Programme, Democratic Republic of Congo)

In 1999 a conflict between pastoralist and farmers degenerated into a bloody conflict
which led to 500,000 deaths and 5,000,000 displaced people. The situation worsened in
2003 with the fall of the city of Bunia. The government decided to put in place the
commission of pacification of Ituri which set up an administration that were given the
role of managing and pacifying the district of Ituri. That administration had also the
task of verifying allegation of violence in preparation of trials or truth telling to the TRC.
In the mean time another peace process was going on in Sun City were Congolese were
in dialogue. Talks in Sun City led to a setting up of a transitional government and a truth

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and reconciliation commission. The country was in a situation Were by two peace
processes were going on at the same time. A national one and a local one.

Women suffered the most in the Ituri conflict. Their dignity was tempered at all levels.
They were supposed to be the first to benefit from TJ mechanisms so that they can
relieve their suffering. In several workshops women discussed about transitional justice,
trying to found out how it can be of any help to them. Our account will give their
answers to question such as: Is Transitional justice relevant to them in the light of culture
and circumstances surrounding the conflict. Is it possible to talk about peace without
justice? What kind of justice is relevant for the situation in Ituri? Is the transitional justice
experience in other country applicable in DRC most precisely in Ituri?

The present exposé is the result of the job we began with women in Ituri for community
peace-building. Debates on transitional justice ended in a dilemma. Women did not
know which choice to take, so that communities can reach reconciliation and sustainable
peace. Transitional justice seemed not to fit in.

Session 14: Local Approaches To Transitional Justice – Field-Based

Analyses
Laurens Bakker- From dictatorship to reform. Transfiguring land access in Indonesia
(Van Vollenhoven Institute, Leiden University)

Since the 1998 abdication of Suharto as president of Indonesia that nation’s

administrative and legal systems have been undergoing continuous changes. Departing
from the patrimonialist application of national law by Suharto’s elitist New Order regime,
the nation’s reformation leaders have frequently their desire to popularise and
democratise national law. The task at hand is huge, and problematic. How does a nation
recover its legal system after over three decades of appropriation for the regime’s private
needs?

Notably the domain of land access is in dire need of legal reform. National land law is
not unified, not attuned to popular needs. Moreover, practice sees national land law and
local customary tenure systems at odds. The general character of the former paying lip
service to the latter, but in fact providing a tool for dispossession of land and the
negation of rights to the regime.

Change is not coming through the government. As politicians and law-makers prove
hesitant to review the land legislation, it is at the grassroots level of society that
transformation is initiated. Local communities negotiate improvements to their
respective justice issues. Through intricate combinations of appeals to tradition, national
and internal law, do they. Whereas the threat of a nationwide patchwork of diverse
regulations and situations is realistic, these varied effects appear to impact the strength of
national legislation.

Can local land issues transfigure national land law? The heritage of New Order rule and
its adherents suggest this to be an unlikely course of developments. Local events,
however, present a different image. Approaching the issue through perceptions of justice
in land affairs at the grassroots level, I seek to identify the transitional tendencies as well
as the entrenched hindrances of the present legal situation.

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Bert Ingelaere- Life (Stories) In Transition: A Methodological Approach To Study
Political Transition And Transitional Justice From Below
(Institute of Development Policy and Management (IOB), University of Antwerp)

Lieselotte Viaene - The internal logic of the cosmos as ‘justice’ and ‘reconciliation’: Maya
Q’eqchi’ perceptions from post-conflict Guatemala
(PhD Researcher, Human Rights Centre, Ghent University, Belgium)

Prof. Mwesiga Baregu – Title to be confirmed

(Professor of Political Science, University of Dar es Salaam, Tanzania)

Dr. Phil Clark – When Local and Global Justice Meet: Field Findings from Rwanda,
Uganda and the Democratic Republic of Congo
(Research Fellow in Courts and Public Policy, Centre for Socio-Legal Studies, University
of Oxford)

Session 15: Nation Building, Social Transformation and Post-Conflict

Reconstruction
Thomas K Crick - Local Justice Promotion as Nation Building: Current efforts in Liberia
(Associate Director, Conflict Resolution Programme, The Carter Centre)

Re-establishing an agreed social order should be a first line priority for post-conflict
peace building. However, the challenge of replacing violence with the rule of law is often
left to slow and mistrusted processes of rebuilding formal mechanisms. These processes
are often controlled by old establishment interests, as represented by lawyers. This
presentation provides a case study of the Carter Center’s efforts in Liberia to bridge
between community justice needs and the reform of the formal justice system. In
collaboration with government, traditional authorities and civil society organizations, the
Center is helping to strengthen the formal justice system while at the same time finding
ways to encourage the strengths of the customary systems. Where differences exist
between the systems, respectful dialogue is a critical tool and can be expanded to include
previously marginalized stakeholders such as women and youth. In this way, the
discussion over what the laws should be and how they should be implemented becomes
a discussion about historic cleavages and how these can be reconciled in durable ways
that will help to keep the peace.

Lauren McAlister- Conceptualizing the “other”- transitional justice in the divided

community of Mostar
(Monitoring and Procurement Officer, United Nations Volunteer, UNDP Upper Drina
Regional Development Programme, Bosnia-Herzegovina)

The crux of transitional justice is that processes to deal with the legacy of a conflict
transpire through officially sanctioned mechanisms that serve to address the past in a
holistic manner. However, the conflict in Bosnia-Herzegovina, which ended after three
years of fighting with the Dayton Peace Agreement in 1995, served to entrench ethnic-
based divisions into the post-conflict reconstruction process. In doing so, not only are
the particularities of the regional differences undermined, but also, any transitional justice
initiative is stymied by a political system that serves to undermine the vast majority of

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forward looking mechanisms. Therefore, speaking to methods for addressing the past is
hindered by lingering tensions that serve to frame the transitional process.

While in theory the Washington Agreement, signed between Bosnian Croats and Bosnian
Muslims in 1994, ended this dimension of the conflict, Mostar was divided, and
continues to be divided, between these two ethnic groups. While many civic institutions
have been unified, including the administration of the city, many of these initiatives are
superficial mechanisms and have not served to induce cooperation between the two
communities in Mostar; rather, ethnic antagonisms have become a systemic component
within local institutions.

In light of these issues, this paper seeks to determine the particular challenges associated
with transitional justice mechanisms within a community that has not only been divided,
but that those divisions are entrenched within the peace process and serve to frame any
transitional justice initiatives that transpire within the country. The rationalization for
examining transitional justice through Mostar is that the city itself embodies many of the
dynamics of both the conflict and the post-conflict rhetoric, and can therefore be a
conceptual space through which to examine the viability of transitional justice within
Bosnia-Herzegovina as a whole.

Furthermore, since the signing of the Dayton Peace Agreement, the international
community has had a significant and relatively unprecedented role in shaping the
transitional justice mechanisms utilized by the country itself, and local actors have had
relatively limited autonomy over the process. The impact then of having such massive
and protracted involvement from the international community will also be examined
within the context of Mostar, for relatively few communities within Bosnia-Herzegovina
have received more international involvement, and yet, intractable ethnic tensions
continue to frame the community.

Binaifer Nowrojee –Title to be confirmed

(Clinical Instructor and Lecturer in Law, Human Rights Programme, Harvard Law
School; Open Society Justice Institute)

Clara Sandoval – Legal Change and Transitional Justice

(Lecturer in Law and Co-Director of LLM in Human Rights Law, University of Essex)

Modern liberal societies believe that law has the potential to effect fundamental change
in society. They consider that International Human Rights Law, and transitional justice
when applicable, are necessary elements in such a process. Such a belief overlooks the
fact that law has both the capacity to resist change as well as the ability to promote it.
This paper explores an intrinsic quality of the law that makes this dual role possible: its
capacity to be a conductor of ideology. Although the article focuses on legal ideologies,
referred to as working theories of law, and legal change, it maintains that the answers it
searches for are a pre-requisite for the understanding of what makes social change
possible.

A key task, therefore, is to understand the way in which law deals with change,
particularly of a fundamental nature, and to uncover its inherent elements that are at
work when important transformations are in progress as when transitional justice
processes are in place. Therefore, this article explores three inter-related questions. How

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do legal ideologies deal with legal and social change?; In what ways is legal ideology both
a positive vehicle for and a potential obstacle to legal change?; And, whether these
openings and obstacles to fundamental legal change affect its likelihood?

The article explores the theoretical dimensions of the questions and offers detailed
research of the working of legal ideologies and fundamental legal change by looking at
the case of Colombia, comparing two different periods of time. Firstly, the end of the
1980’s and the beginning of the 1990’s when the wave of the ‘new law’ penetrated the
country, a new Political Constitution was enacted, and amnesty, demobilisation and
reintegration of the M-19 and the EPL took place but where no transitional justice
mechanism or process was in place and, secondly, the Presidency of President Alvaro
Uribe where some transitional justice mechanisms have been put in place with the
implementation of the Justice and Peace Law such as the prosecutors and judges of
justice and peace, the National Commission for Reparation and Reconciliation and The
Group of Historical Memory.

The assumption behind the comparison is that in Colombia the transformation of the
State in terms of re-establishing democracy, the rule of law and material justice was
greater without transitional justice mechanisms than with them in place. After
considering the truth of this assumption, the article reflects on the nature of fundamental
legal change in both periods and its consequences for social change particularly in
processes of transitional justice.

Morris Kiwinda Mbondenyi- The road to post-conflict reconstruction in Kenya: An

evaluation of the country’s approach to justice, land and institutional reforms after the
2007 post-elections violence
(LLB (Moi); LLM, LLD (University of South Africa)

Kenya opened a new chapter in her history when two wrangling political parties— the
Party of National Unity (PNU) and the Orange Democratic Movement (ODM) —
signed a power sharing agreement in February 2008. The agreement brought to an end
months of civil unrest and political bickering, following the declaration of Mr. Mwai
Kibaki (PNU’s presidential candidate) as the winner of the 2007 Presidential Elections.
The wave of atrocities that resulted from the declaration of Kibaki’s disputed victory
caught the eye of the international community, which stepped-in to restore order and
peace in the country. The African Union (AU) appointed a team of international experts
to mediate over the crisis. During the mediation process, it emerged that the post-
elections crisis was a culmination of both long-term and immediate causes. Behind the
façade of alleged election fraud were decades-old tensions that instigated the national
pandemonium. These tensions concerned many unresolved issues, some dating way back
to the time the country attained her independence. Endemic failures in governance,
epitomised by injustice and botched land and institutional reforms, informed such issues.

This contribution therefore evaluates the extent to which Kenya has attempted to resolve
these issues since the 2007 crisis. It argues that unless justice and institutional reforms are
treated with deserved urgency, the country will experience another wave of atrocities.
The contribution further argues that Kenya desperately needs a reformed system of
governance that would ensure greater citizens’ participation. Among other things, the
system should provide equal opportunities to all citizens by creating conditions that
would encourage their participation in government. Secondly, it should provide for

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effective transfer of power and periodic renewal of political leadership through
representative and competitive elections. Thirdly, it should strengthen legislative and
administrative institutions, such as Parliament, the Judiciary and other state institutions.
Fourthly, it should empower citizens to hold public officials accountable for their
conduct, omissions and decisions. Fifthly, it should ensure effective public sector
management, stable economic policies, effective resource mobilisation and efficient use
of public resources. Lastly, it should uphold the rule of law in a manner that would
protect human rights and democracy and ensure equal access to justice for all.

Session 16: Memories In The Making

Diana Batchelor- Moving On? The Role of Collective Amnesia in Lebanon’s Transitional
Justice Strategy.
(Lebanese Association for Cultural and Artistic Exchange [UMAM D&R], Lebanon)

Since the signing of the Ta’if Accord in 1990, scholars have often described Lebanon as
dealing with its 15-year civil war and recurring political violence by means of collective
amnesia. The reasons that the Lebanese have opted, both intentionally and
unintentionally, for collective amnesia in the wake of violence are well documented.11 In
contrast, the nature and components of such a collective amnesia remain largely
unexplored.12 This paper uses a psychological lens to identify and describe nine of the
prevailing components of Lebanese collective amnesia, in order to propose mechanisms
of transitional justice appropriate to Lebanon.

The Lebanese collective amnesia has been perceived primarily in two ways: either as
denial, a refusal to face the past which most clinical psychologists agree is a risk factor
for chronic post-traumatic stress disorder (PTSD)13; or as a coping strategy, a resilience
factor that contributes to the prevention of chronic PTSD, particularly in the context of
ongoing conflict.14 Thus some within Lebanon argue for a process of remembering and
reflection whilst others argue for maintaining the status quo so as not to strip the
Lebanese of their resilience to recurring violent conflict. This unhelpful dichotomy is a
barrier to the development of a national transitional justice strategy.

To break from this dichotomy, therefore, this paper identifies nine components of the
Lebanese collective amnesia, the potential for each component to become a risk or
resilience factor, and its role in transitional justice. The author proposes that four of the
nine components are largely resilience factors, and therefore transitional justice strategies
should be designed to incorporate rather than override them. Three are primarily risk
factors, and the design of transitional justice strategies should attempt to challenge and
transform them. Two have the potential to contribute to both risk and resilience, and the
11 See: Mémoire pour l’avenir, Dhakira lil-ghad, Memory for the Future: Actes du colloque tenu a la
maison des nations unies, ESCWA (Beyrouth), ed. Amal Makarem (Beirut: Dar an-Nahar, 2002),
225.
12 With some exceptions, for example: Haugbolle, Sune. “Public and Private Memory of the
Lebanese Civil War.” Comparative Studies of South Asia, Africa and the Middle East. Vol 25, no. 2,
2005.
13 Risk and resiliency to PTSD are taken here to be negative and positive factors that are relevant

to Lebanese society, independent of whether the disputed (Western) clinical definition of PTSD
applies in Lebanon.
14 Through the more recent study of “traumatic growth” one might even claim that the amnesia is

a positive consequence of trauma.

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design of appropriate transitional justice strategies should focus on harnessing their
potential as resilience factors whilst mitigating the associated risks.

The paper closes with recommendations for appropriate transitional justice mechanisms
in Lebanon, incorporating the above observations on the critical role of collective
amnesia, the current debate on transitional justice within Lebanese civil society, and
relevant international experience.

Eadaoin O'Brien- The Exhumation of Mass Graves and the Memorialisation Process: A
Critical Analysis of the Transition from Isolated Victim Memory to the Collective
Memory of a Nation.
(Doctoral Candidate, Government of Ireland Postgraduate Scholar, Irish Centre for
Human Rights, National University of Ireland, Galway, Ireland.)

The exhumation of mass graves is a valuable tool and fulfils multivariate objectives.
Identification and repatriation programmes initiated in post-conflict States fulfil a
humanitarian role by assisting the reconciliation process. This process provides objective
forensic truth in the face of contested facts. It is underpinned by identifying the victim
and repatriation of their remains to the family. No matter how many years after a conflict
this practice is crucial.

Transitional justice mechanisms are not only vital in States emerging from conflict or
repressive rule. I argue that such mechanisms are essential in States confronting the
legacy of an incomplete history many decades after a conflict. I will critically examine
this hypothesis by an analysis of developments in Spain over past decades to assess the
Governments attempt to counteract what was viewed by many citizens as a biased
history.

Only in 1995 did Spain develop a framework to document the political repression of
Francoism, with an aim to recover a collective historical memory. I will consider if the
excavations of clandestine graves from the Spanish Civil War is a genuine attempt to
seek the restitution of the memory of victims which has often been disparaged over the
last 80 years.

Franco’s regime is hallmarked by the use of the dead as a continuing weapon of

repression. Public memory and discourse remained devoid of their recognition and this
resulted in a partial formulation of history. Succinctly, the dead and disappeared
remained forgotten - their voices and stories predominantly silent. I postulate that the
silence was facilitated by the Spanish State to justify a peaceful transition to democracy
by the 1977 ‘Pact of Forgetting’. Yet the policy of forgetting failed – the families of the
deceased were not prepared to sacrifice the truth so easily.

Over the last decades Spain has been confronted with its unremitting harsh memories. I
will explore whether the ceaseless calls from families of the dead was the impetus for
change rather than a Government that recognised opportune political gain by searching
for a corrective historical record. I will examine the legitimacy of this process by
analysing the government funded exhumation of bodies killed in the Franco era and the
‘Law of Historical Memory’. I will explore whether the removal of Memorials to Franco
as integral part of this legislative process further bolsters the attempt by the Government
to address previous wrongs.

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This paper aims to analyze whether Spain is an example of a State constructing an
accurate collective memory as a means to redress the isolated memory of victims. For the
future progression of transitional justice, it potentially shows that a modern State can, by
respecting the search for truth, implement a corrective memory process which finally
respects the dead and potentially will bring justice for atrocities committed.

Danielle Granville- The role of memory in Transitional Justice

(OTJR Committee Member, D.Phil Candidate, Department of Politics and International
Relations, University of Oxford)

Scholars have shown increasing interest in the role of memory in transitional justice
processes, particularly the necessity of ‘coming to terms’ with a violent past. But the
literature on this topic neglects the problem of scope and duration – how much
remembering is sufficient? Can societies ever overcome their guilt, or should atonement
be a permanent priority? The irresolution of these questions can result in a great deal of
tension in international relations, particularly over the politics of restitution. If victim
groups make vague demands, they leave open the possibility of making further demands
in the future, even if the perpetrator attempts to meet the original demand. This
possibility, and the failure of the transitional justice literature to provide guidance on this
point, creates ambiguities that both the victim and perpetrator groups can exploit for
other purposes.

This paper will explore the dynamics of this problem through the lens of a case study –
the conflict between Russia and Ukraine over whether the 1932-33 famine should be
legally recognized as an act of genocide by the Soviet authorities against the Ukrainian
people. This case is of particular interest because Russia’s recalcitrance to engage with
Ukrainian claims may be partly rooted in suspicions about Ukraine’s future intentions.
Although Ukraine wants Russia to acknowledge its ‘moral responsibility’ in this case, it
remains unclear what such a responsibility would entail. Would a public admission be
sufficient, or would official apologies, legislative resolutions, and reparations payments
inevitably ensue? How would Ukraine’s ‘victory’ in this case affect Russia’s international
position? Could an ongoing dispute over historical responsibility actually benefit the
state and nation building goals of either country?

Final Plenary: SHAPING THE WAY FORWARD

Debates in the Foyers- an audio-visual reflection of the conference

Dr Rama Mani- Title to be confirmed

(Department of Politics and International Relations, University of Oxford)

Dr. Phil Clark- Title to be confirmed

(Centre for Socio-legal Studies, University of Oxford)

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