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The Relevance of Victims\u27 Organizations in The Transitional Justice Process: The Case of the Grandmothers of Plaza De Mayo in Argentina
No full textThe case of the Grandmothers of Plaza de Mayo has been extensively discussed, but most commentators focus on two aspects: its uniqueness, and its meaningful participation in the transitional justice process. This paper challenges the traditional commentary by concentrating on the complexity of the Grandmother\u27s experience and its potential to be replicated by other victims\u27 organizations in other parts of the globe. The paper also proposes replacing the traditional goal of meaningful participation - focused on a victim-centered or victim-oriented perspective - by means of a victim-driven approach. To do this, the article analyzes the success of the Grandmothers by showing their independent work during a variety of political circumstances at the national level. The Grandmothers of Plaza de Mayo (Las Abuelas de Plaza de Mayo) is a non-governmental organization (NGO), created in 1977 in Argentina. Its organization works to locate children who were kidnapped during the last dictatorship and restore them to their proper families. The Grandmothers\u27 actions have reinforced and advanced the achievements of truth, justice, reparations, and guarantees of non-recurrence during their forty years of work, strengthening the Argentinean transitional justice process. While the case of the Grandmothers has been extensively reviewed, most observers focus on two aspects: its uniqueness, and the meaningful participation of the organization in the transnational justice process. Characterizing the case as unique reinforces an idealization that fails to acknowledge the struggles and challenges that the group members of the Grandmothers have endured. Thus, it obstructs the possibility of replicating their experience in other contexts. On the other hand, the description of the case as an ideal example of meaningful participation allows to contrast the Grandmothers\u27 experience with the great majority of the cases in which victims were used as a tool for governmental legitimization, without an actual role in the decision-making process. However, this ideal characterization of the organization based on its meaningful participation tends to re-affirm the conventional wisdom that the success of victims\u27 experience should be measured by their intervention in public policies run by the government or by international organizations. This article challenges both the uniqueness characterization and the meaningful participation thesis. Instead of focusing on a homogenous and idealized narrative of the Grandmothers\u27 participation, it concentrates on the complexity of the Grandmothers\u27 experience, digging into those aspects that have the potential to be replicated by other victims\u27 rights organizations in other parts of the globe. The study analyzes nearly forty years of the Grandmothers\u27 struggle, and how their organization, strategies, and input varied depending on the political circumstances at the national level. At the same time, the article suggests that achieving meaningful participation by the victims may not be an achievable ideal in the first place. The countries and regions that are traversing transitional justice processes are particularly vulnerable to political change and socio-economic instability. As a result, even if a certain regime is willing to give the victims a clear voice in the process, this participation is constrained by the success and continuity of that regime. Victims\u27 actions end up being uncertain, and vulnerable to changes in public policy or fluctuating political alignments. The ideal of participation implies a problematic auxiliary role in a public policy that is run by others (e.g. the government, local judiciary, international organizations or international courts). The goal of meaningful participation, even if temporarily feasible, therefore perpetuates the victims\u27 submissive role in relation to the political leadership of the moment.8 In short, this article proposes that the empowerment of the victims as an end in itself and as a path to reinforce the transitional justice process should not rest on a victim-centered approach, but on what can be called a victim-driven approach. Following this logic, the article proposes that the cause of the Grandmothers\u27 success may be their lack of meaningful participation in the transitional justice process and their development of an independent agenda that sustain them throughout different political circumstances. It is not a case of participation, but rather of the leadership of public policy. The Grandmothers were not just a group of relevant individuals who were heard and considered in an official process; they provoked national and international recognition of these crimes, even under the dictatorship. Despite this challenging context, the Grandmothers denounced impunity, conducted fact-finding that was the core of later investigations to restore the abducted children and prosecute members of the dictatorship, and they led a cultural shift to avoid recurrence. As Sikkink highlights: other countries experienced repression as great as or greater than that in Argentina and did not put forth the same vibrant response from both civil society and governmental actors [...] In Argentina, social movements not only took advantage of existing opportunity structures but also helped create them at both the domestic and the international levels. Mdndez reinforces: [...] in Argentina, the inherent force of the idea of accountability has resulted in magnificent efforts by civil society to document past violations and to rescue the memory of the victims from oblivion. In short, the article focuses on deconstructing the characterization of the Grandmothers as unique , and on the development of a victim-driven approach to help reinforce the experience of this organization as a guide for many others. To achieve this, the research is structured in five sections that develop a historical analysis to show how the Grandmothers drove the transitional justice process along the different political regimes. Part II explores the experience of the Grandmothers during the civil-military dictatorship (1976-1983). The article explores which were the characteristics of the group in its initial configuration and queries if they were unique or susceptible of being replicated. The proposed thesis is that the independent and victim-driven agenda of the Grandmothers during this period was centered on their claims for truth by means of international denunciation, regardless the governmental harassment against them. Part III focuses on the Grandmothers\u27 struggle during the \u27fragmented transitional process\u27 into a democratic regime (1983-1989). This period was led by Raul Ricardo Alfonsin, in which democracy was unstable and vulnerable to the still-powerful military forces. Then, the Grandmothers supported official decisions such as the creation of the truth commission and the trial against the dictatorship\u27s leaders. However, they preserved their own work in the search of their Grandchildren. They also joined forces with other victims\u27 organizations to vigorously reject official measures that limited the criminal responsibility of those who perpetrated human rights violations during the dictatorship. Part IV centers on the Grandmothers\u27 battles during the years of impunity (1989-2003), when the democratic regime was more stable, but President Carlos Menem promoted impunity policies and only concentrated on reparations for the victims. At this time, the Grandmothers kept on working with other victims\u27 organizations and with the civil society intensifying their complaints against the government. However, the Grandmothers also preserved their independent efforts in the transitional justice process that were now concentrated on a judicial strategy. Part V explores the Grandmothers\u27 work during the years that may be described as human rights\u27 recognition (2003-2015). These years correspond to the Kirchner government, which acknowledged the past human right violations and encouraged the four transitional justice measures: truth, justice, reparations, and guarantees of nonrecurrence. For the first time, the Grandmothers decided to openly support a government, even though they preserved their agenda with a focus on the trials as well as political and cultural activities to ensure the non-recurrence. Part VI analyzes the Grandmothers\u27 activity in the framework of a government that is undermining the transitional justice process, in what might be called a step back in human rights policies. This moment is particularly interesting because the Grandmothers\u27 opposition to the present government differs from the opposition held in earlier periods. The current Grandmothers\u27 opposition to the government rests on more solid political statements and on the defense of a broader agenda in terms of human rights violations. It is possible that this change comes as a result of the Grandmothers\u27 forty years of experience and their politicization during the former government. Besides their claims against the present government, the Grandmothers preserve their self-determining agenda, which now is concentrated in the continuation of the organization through their restituted grandchildren. In each of the mentioned parts, the article distinguishes the actions, struggles, and contributions of the Grandmothers to enforce the four components of the transitional justice process (the pursuit of truth, justice, reparations and guarantees of non-recurrence), following the analysis and methodology of the U.N. Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence (U.N. Special Rapporteur). Particularly in relation to guarantees of non-recurrence, the article addresses the different forms that were established in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (The Basic Principles) as doing so demonstrates a perspective that avoids centering this aspect of transitional justice only on the vetting process, and enriches the discussion with the contributions of the Grandmothers to legislative changes and cultural transformation. The final part of the paper offers reflections and suggests that the historical analysis of the Grandmothers\u27 experience might serve as an enriching reference for other victims\u27 organizations, always taking care to respect local particularities.\u2
The Cost of (Non)Compliance: An Expose of the United States\u27 Immigration Detention Policy and its Failure to Comply with International Standards
No full textThe persistence of brutal warfare sparked an international movement against torture at the turn of the twentieth century. By 1948, the Universal Declaration of Human Rights (UDHR) introduced a ban on torture.\u27 Two decades later, the International Covenant on Civil and Political Rights (ICCPR) followed suit, prohibiting member States from subjecting individuals to torture. However, in decades following said treaties, brutal dictatorships proved that short provisions in international documents are not enough to prevent torture. The plight of Chilean dictator Augusto Pinochet illustrated the weaknesses of the international framework on torture. Despite the heinous acts of torture committed under his regime, Pinochet enjoyed impunity at the international level. Torture needed its own treaty. Inspired by gruesome reports of electrocutions and forced disappearances in Chile, Amnesty International launched a global campaign to end torture. Over time, the campaign against torture gained momentum. Sweden proposed a treaty to the United Nations (U.N.) that eventually became the Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (Torture Convention)
Mark D. Kielsgard, Responding to Modern Genocide: At the Confluence of Law and Politics
No full textThis essay is a book review of Responding to Modern Genocide: At the Confluence of Law and Politics by Mark D. Kielsgard
Pit Bull Lives Matter: Ineffectiveness Breeds Unconstitutionality in Miami-Dade\u27s Breed-Specific Legislation
No full textPart I of this Article reviews the history of the pit bull breed and the see-saw reputation that pit bulls have endured. Part II of this Article describes unsuccessful constitutional challenges to breed specific legislation. Part III of this Article discusses the problems with Miami- Dade County\u27s breed-specific legislation and proposals for changes that do not include unconstitutionally targeting a particular breed
From Rio to Paris: What Is Left of the 1992 Declaration on Environment and Development
No full textThis paper has a dubitative title. And this is for a good reason. It is meant to introduce the critical perspective in which I propose to assess the legacy of the 1992 Rio Declaration after almost a quarter of a century from its adoption. This retrospective outlook, it is hoped, may help assess the progress, if any, that international law has made in this field, at a time when we are facing the challenge of implementing the 2015 Paris agreement on climate change
Anti-Israel, a Camouflage Platform for Antisemitism
No full textAnti-Israel has become a camouflage platform for expressing antisemitism under a more socially acceptable umbrella. There is no legal solution to combat antisemitism and all of its ripple effects. Instead, educating the general public with the knowledge necessary to discern antisemitic rumors from reality and passing remedial legislation are important steps to combatting bigotry and hatred
Adults Only: Florida\u27s Botched Case of Youth Employment Discrimination
No full textThis Article argues that Florida courts got it wrong. Part II of this Article reviews the chronological evolution of Florida\u27s anti-discrimination law. It then contrasts Florida courts\u27 reading of the FCRA to extend age-related protections only to individuals over forty to the Commission\u27s unyielding argument for the Act\u27s age-neutral application. This Part further illustrates this interpretative incongruity by juxtaposing the Fourth District Court of Appeal\u27s holding in City of Hollywood v. Hogan to the Commission\u27s final order in Williams v. Sailorman, Inc. Part III of this Article reviews the Commission on Human Relations\u27 role enforcing the FCRA and describes the two enforcement avenues-judicial and administrative-the Florida Legislature inscribed into the Act. This Part posits that the courts\u27 analysis of the FCRA\u27s age protections de facto eliminates the judicial enforcement mechanism from the Act. Part IV of this Article expands on this argument by engaging in statutory interpretation. This Part reasons that, on its face, the FCRA is unambiguous, and the statutory language must be given its plain and obvious meaning. In the alternative, it reasons, the FCRA should not be interpreted in the image of the ADEA because such interpretation is not harmonious with the spirit of the Florida legislation. This Part explains that the harmony cannot be achieved for four reasons: (1) the 1977 legislative record of the FCRA (then-Human Rights Act) does not only not express the intent to set a lower age ceiling-it in fact expresses a contrary intent; (2) the Florida Legislature provided all aggrieved persons with two enforcement routes and did not intend to exclude anyone from the FCRA\u27s all-inclusive statutory framework; (3) the courts\u27 reading controverts the Act\u27s manifest purpose to provide Floridians with the maximum protection against unlawful discrimination in employment; and finally, (4) the Florida Legislature knows how to express its intent that a state statute follow the federal law, and intentionally omitted such expression from the FCRA with respect to age discrimination. Part V of this Article discusses two out-of-state case analogs-Michigan\u27s Zanni v. Medaphis Physician Services Corp. and New Jersey\u27s Bergen Commercial Bank v. Sisler, in which state courts overturned their prior precedents, declining to follow the ADEA\u27s lower age ceiling, and held that their states\u27 respective anti-discrimination statutes, similar to Florida\u27s, protected individuals of all ages. This Article concludes with Part VI, which offers final thoughts on the Florida courts\u27 and the FCHR\u27s interpretive disconnect, and provides suggestions to the Florida courts, the Florida Legislature, and the Commission on how to reconcile their differences
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 28, Issue 2, Spring 2016
Securing Workers\u27 Economic Rights through Public Protest
No full textThis essay will explore the use of public protest as a nonregulatory device for promoting the fair pay and equal workplace treatment principles of the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and American domestic laws. Specifically, it will consider the role of public protest in improving the economic condition of workers who face discrimination, low wages, and gig or contractual work arrangements that do not provide the kinds of job security contemplated by the law. The essay will first look at the effect of civil rights protests on the economic rights of minorities in the United States. Second, it will describe and evaluate the plight of low-wage workers. And, finally, it will consider the impact of purchasing labor through independent contracts that circumvent legal prescriptions for fair pay and nondiscriminatory workplaces. Part I of the essay shows that public protest helped to produce legal prescriptions that were instrumental in improving the pay and benefits minorities and women receive. Part II shows that public protest has resurfaced as a viable strategy for low-wage workers who have found it difficult or impossible to improve their compensation status under existing regulations. This part highlights the free-market foundation of American labor laws, and how this model limits the power of unions to champion the economic claims of the most vulnerable workers. Part III considers the challenges that gig and contract employment present to the rules of fair pay, reasonable work hours, and complementary workplace benefits that come with fulltime employment.\u27 0 The essay concludes by referencing the success recent worker initiatives have had in advancing their economic claims, and proposes that such activism should be expanded
For the Trafficking Victim, Winning Is Collecting
No full textAll too often, restitution orders go uncollected. Why? The answer is painfully simple. By the time the restitution order is obtained or the forfeiture of the trafficking defendant\u27s property occurs, the defendant has either dissipated or disposed of his assets leaving little or nothing for the victim. Before discussing the solution to this problem, relevant matters should be discussed. This paper will only consider the applicable federal law. State law varies; but if restitution is mandatory under state law, this same approach to collecting restitution for the trafficking victim can be applied to cases involving State prosecution of criminal trafficking defendants