176 research outputs found
Erin Daly, Jeremy Sarkin, Reconciliation in Divided Societies: Finding Common Ground, 2007
No full textPaquin Frédéric. Erin Daly, Jeremy Sarkin, Reconciliation in Divided Societies: Finding Common Ground, 2007. In: Revue Québécoise de droit international, volume 20-1, 2007. pp. 503-508
Recommended from our members
Africa's role and contribution to international criminal justice /
No full textThis book explores a range of issues related to the development, application and enforcement of international criminal justice within Africa and on Africa. Written by experts from Africa, and adopting African perspectives, this book seeks to understand the scope and reach of these issues, nationally, regionally and globally. Africa's Role and Contribution to International Criminal Justice engages in theoretical and policy discourses on the substantive and procedural features of criminal law and justice in the African context. A range of topical issues are examined by the contributors, such as the ways in which African states have dealt with issues of universal jurisdiction and how victims are treated, as well as controversial questions concerning how courts function and should function in dealing with these issues. The ideas, themes, institutions, practices, concepts and patterns of convergence of criminal justice systems in Africa are also explored. This book aims to establish a greater understanding of international criminal justice and its relation to Africa, and beyond. Further, it seeks to expand the conversation beyond the narrow topics that are so commonly discussed when matters of African criminal justice are considered. PROF DR JEREMY SARKIN is Distinguished Visiting Professor of Law at Nova University of Lisbon (Portugal) and Research Fellow at the University of the Free State (South Africa). DR ELLAH T. M. SIANG'ANDU is Lecturer and Post-Doctoral Fellow at the University of Zambia and Research Fellow at the Southern African Institute for Policy and Research (SAIPAR)
Justice and social reconstruction in the aftermath of genocide in Rwanda: an evaluation of the possible role of the gacaca tribunals
No full textPrepared under the supervision of Professor Jeremy Sarkin, Faculty of Law, University of the Western CapeThesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2000."Rwanda was largely destroyed in 1994. Among an endless host of problems, highly complex questions and dilemmas of justice, unity, and reconciliation haunt Rwanda to this day. A basic question confronting Rwanda is how to deal with the legacy of the conflict that culminated in the genocide of the Tutsi and in the massacres of Hutu opponents of the genocide. The UN set up an International Criminal Tribunal in Arusha, Tanzania, and Rwanda has its own courts. In both cases, the process of trying accused genocidaires is long, laborious, and frustrating. Only eight convictions have been handed down in Arusha after five years of work, while in Rwanda only some 3,000 cases have been disposed of. At least 120,000 detainees are in prisons around the country, the vast majority of whom are accused of participation in the genocide. At the present rate it is estimated that it will take anywhere between two and four centuries to try all those in detention. The Rwandese government has developed a new procedure called “gacaca,” lower-level tribunals that attempt to blend traditional and contemporary mechanisms to expedite the justice process in a way that promotes reconciliation. The impact of gacaca remains to be seen, and as a process, it certainly needs an evaluation or, at least, an attempt to evaluate its possible contribution to the perplexing questions of justice, unity and social reconstruction in the aftermath of genocide.
This paper mainly aims to analyse the draft legislation on the gacaca jurisdictions. Further, this essay attempts to examine the impact of criminal trials in the aftermath of mass violence and genocide. Although conventional wisdom holds that criminal trials promote several goals, including uncovering the truth; avoiding collective accountability by individualising guilt; breaking cycle of impunity; deterring future war crimes; providing closure for the victims and fostering democratic institutions, little is known about the role that judicial intervention have in rebuilding societies.
The present essay deals only with criminal trials. By definition, these are focused on the perpetrators of abuses and their allies. Although not examined in the essay, a comprehensive and holistic approach to dealing with a legacy of past atrocities should also include range of victim-focused efforts, such as programs for compensation and rehabilitation, the establishment of memorials, and the organisation of appropriate commemorations.
The main sources of this study are textbooks, articles from journals and official documents of national and international bodies. Since this essay aims at evaluating the gacaca proposals, a great deal of attention is paid to the terms of the draft legislation.
It is certainly premature to make an in-depth assessment of a draft law and the merits and flaws of the legal institution it is designed to set up. Only gradually and over a period of time can the gacaca become effective and credible. Further research aimed at gathering data through interviews, field observations, participant observation, study and analysis of the implementation can also illuminate experience in ways that analysis of published sources do not. A thorough and sound appraisal of this new institution must therefore wait some time. I shall nevertheless attempt in this essay to set out some initial and tentative comments on some of the salient traits of the future gacaca tribunals.
This paper makes a preliminary “human rights impact assessment” of the implementation of the draft law establishing “gacaca jurisdictions”. The potential role of the new institution in rebuilding the Rwandese society is also discussed. Considering the many complex issues which still surround the process of justice in Rwanda six years after the genocide, as well as the continuing challenge to the judicial system in terms of the inadequacy of resources for dealing with such an enormous caseload, recommendations to help the process follow the analysis of the gacaca proposals (Chapter Three).
To end impunity, it is necessary to respond in accordance with human rights law to the genocide and mass killings. Therefore, the starting point for our evaluation of the gacaca proposals will be an analysis of the proposals in human rights law. Does human rights law impose any affirmative duties to punish genocide and other mass killings that occurred in Rwanda? In addition, for the “gacaca jurisdictions” to be effective, they should not be viewed in isolation, as their performance will depend to a large extent on whether other judicial mechanisms and institutions are functioning properly. The relationships between the gacaca jurisdiction and other mechanisms are thus reviewed. In particular, the process of setting up the gacaca jurisdictions should include an evaluation of the genocide trials which have taken place to date both at the International Criminal Tribunal for Rwanda and in the domestic courts and apply the lessons learnt (Chapter Two). An evaluation of the potential contribution of the use of gacaca courts needs to be put into the broader context of the conflict in Rwanda. Thus, an analysis of the conflict in Rwanda is necessary to grasp the challenges facing the questions of justice and social reconstruction in the aftermath of genocide in Rwanda (Chapter One)." -- Introduction.http://www.chr.up.ac.za/academic_pro/llm1/dissertations.htmlCentre for Human RightsLL
Internship in the Permanent Mission of Portugal to the United Nations and other International Organizations in Geneva - Transitional Justice in Countries Emerging From Conflict and the Role of the United Nations: Alternative Accountability Strategies for Contemporary Challenges
No full textPeriods of violence or repressive regimes often accompany gross human rights violations, necessitating post-conflict societies to transition away from this legacy. Transitional justice has the potential to deal with these legacies of significant past grievances while promoting truth, justice, reconciliation, and guarantees of non-
recurrence.1 The United Nations, through various tribunals and courts, has developed a global accountability framework for serious international crimes.2 However, traditional transitional justice mechanisms have proven insufficient in contemporary contexts.3 The international community's response to genocide, war crimes, crimes against humanity, and other human rights violations is facing challenges, with geopolitical tensions, non-intervention principles, and Security Council dynamics influencing their decisions to intervene or not.
The report begins with an in-depth exploration of a 6-month internship at the Permanent Mission of Portugal to the United Nations and other international organizations in Geneva. This introductory section serves as a foundational understanding of the efforts made by the United Nations, Human Rights Council in specific, to ensure accountability in transitional settings. It focuses on the political dimension of human rights and the
current challenges faced by the Council, highlighting the cases of Ethiopia and Sudan to demonstrate the impact of contemporary political “ideologies” on the UN's approach to transitional justice.
The report raises crucial questions about the international community's response to human rights violations, exploring instances of intervention or non-intervention and assessing alternative transitional justice mechanisms. By analysing the UN's approach in two specific country situations, the report aims to understand the factors influencing the international community's decision to intervene or not. While some challenges have been addressed with some creativity by the United Nations over the past years,4 recent cases show that alternative strategies can be applied to face contemporary challenges. The case studies of Syria and Myanmar highlight important contributions by the Human Rights Council and the General Assembly to ensure accountability. Other countries examples contribute insights into alternative contemporary accountability strategies, such as the “Uniting for Peace” resolution, cases before the ICJ and Universal Jurisdiction, suggesting that member states can advocate for effective alternative mechanisms and activate universal jurisdiction when the international community falls short in responding to gross human rights violations. 1 Istrefi, Remzije. “Transitional Justice and Reconciliation from the International Peace-Building
Perspective.” SEER: Journal for Labour and Social Affairs in Eastern Europe 20, no. 2 (2017): 269–87.
http://www.jstor.org/stable/26427185.
2 Rashid, Norul Mohamed. n.d. “International and Hybrid Criminal Courts and Tribunals.” United
Nations and the Rule of Law. https://www.un.org/ruleoflaw/thematic-areas/international-law-courts-
tribunals/international-hybrid-criminal-courts-tribunals/.
3 Security Council. 2019. “Security Council Report ‘The Rule of Law: Retreat from Accountability”.
Security Council Report. https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-
8CD3-CF6E4FF96FF9%7D/research_report_3_rule_of_law_2019.pdf
4 Security Council. 2019. “Security Council Report ‘The Rule of Law: Retreat from Accountability”.
Security Council Report. https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-
8CD3-CF6E4FF96FF9%7D/research_report_3_rule_of_law_2019.pdfPeríodos de violência ou de regimes repressivos são normalmente acompanhados de graves violações de direitos humanos, exigindo às sociedades a sua transição, no pós-conflito, para um regime democrático, de paz e segurança. A justiça de transição tem o potencial de lidar com estes legados de violações de direitos humanos, enquanto promove a verdade, a justiça, a reconciliação e garantias de não recorrência. As Nações Unidas, através de vários tribunais internacionais, híbridos e nacionais, desenvolveram um quadro de responsabilização global para investigar este tipo de crimes. No entanto, os mecanismos tradicionais de justiça de transição têm-se revelado insuficientes face ao contexto contemporâneo. A resposta da comunidade internacional quanto ao genocídio, crimes de guerra, crimes contra a humanidade e outras violações de direitos humanos tem enfrentado desafios, com tensões geopolíticas, princípios de não intervenção e dinâmicas do Conselho de Segurança a influenciar as suas decisões.
O presente relatório começa com uma análise detalhada do estágio de 6 meses na Missão Permanente de Portugal junto das Nações Unidas e outras organizações internacionais em Genebra. Esta secção introdutória serve para dar nota dos esforços feitos pelas Nações Unidas, especificamente pelo Conselho de Direitos Humanos, para garantir a responsabilização em contextos de transição. Centra-se nas dimensões
políticas dos direitos humanos e os desafios atuais enfrentados pelo Conselho, destacando os casos da Etiópia e Sudão para demonstrar o impacto das atuais “ideologias” políticas na resposta da ONU no âmbito da justiça de transição.
O relatório levanta questões cruciais sobre a resposta da comunidade internacional às violações de direitos humanos, explorando casos de intervenção ou não intervenção e avaliando mecanismos alternativos de justiça de transição. Ao analisar a abordagem da ONU em duas situações nacionais específicas, o relatório pretende compreender os fatores que influenciam a decisão da comunidade internacional de intervir ou não.
Embora alguns desafios tenham sido abordados com alguma criatividade pelas Nações Unidas nos últimos anos, casos recentes mostram que estratégias alternativas podem ser aplicadas para fazer face a desafios contemporâneos. Os casos da Síria e Mianmar destacam contribuições importantes do Conselho de Direitos Humanos e da Assembleia Geral para garantir responsabilização. Exemplos de outros países oferecem
contribuições sobre estratégias alternativas de responsabilização contemporânea, como a resolução "União pela Paz", casos no TIJ e Jurisdição Universal, sugerindo que os Estados Membros podem empregar mecanismos alternativos eficazes e ativar a sua jurisdição universal quando a comunidade internacional fica aquém na resposta a graves violações de direitos humanos
Assimilated justice for the actors by the international core crimes : towards a legitimate assimilated justice paradigm of criminal and restorative justice aims
No full textDefence date: 10 December 2005Examining Board: Neil Walker, EUI, Supervisor ; Prof. Jeremy Sarkin, University of Western Cape, Cape Town, external supervisor ; Cécile Aptel, United Nations, and University of Caen Basse-Normandie ; Marie-Ange Moreau, EU
The methodology by which transitional justice strategies ought to be incorporated into the International Criminal Court framework
No full textThis research seeks to establish a methodology by which transitional justice strategies ought to be incorporated within the International Criminal Court (ICC) framework. The study is based on the situation in Uganda as an example of the state that has a situation and cases before the ICC. The aim of the thesis was achieved through the adoption of a combination of theoretical legal research and the non -doctrinal approaches.
This research establishes that the primary responsibility to prosecute persons suspected of violating international law lies with the states. The importance of the concept of individual criminal responsibility, the idea that every person suspected of committing the most serious offences must be held accountable regardless of status. The principle of individual criminal responsibility is further developed with the creation of the ICC.
This research clarifies that there are limitations in terms of what prosecutions can achieve during transitional periods; further, that trials in the ICC and national courts can be undertaken together with proceedings of the Truth and Reconciliation Commissions or indigenous mechasims. Such an approach will allow for confines of prosecutions to be addressed.
Despite the existence of principles and institutional framework that are intended to ensure individuals are held accountable for the most serious offences of international concern, the majority of individuals are not held accountable. In order for the ICC to operate effectively it would need to seek to go beyond deterrence and retribution. This would require post – conflict states to devise transitional arrangements that compel with the ICC structure.
Thus the research recommends that it would be better for judicial and non- judicial measures to be adopted in states that have cases before the ICC. Particularly Uganda must adopt the mato oput method formally as a tool to address the past human rights abuses in Uganda. All persons regardless of whether they have been granted amnesty or not must be held accountable under the mato oput measures. This implies all persons with exception to those that the ICC has issued the warrants of arrest against.LL. D.Public, Constitutional and International La
Enhancing the realisation of the right to development through devolution in Kenya
No full textThe Right to Development (RTD) is not a new issue in human rights practice, having received recognition as an inalienable human right by the United Nations Declaration on the Right to Development (UNDRTD) in 1986, more than 30 years ago. The RTD has also featured in past and recent agreed international policy documents such as; the 1993 Vienna Declaration and Programme of Action and the 2030 Agenda for Sustainable Development (SDGs) among others.
Despite its international recognition as a human right, the schism between the global North and the global South has made it difficult for the UN to adopt a binding international human rights treaty on the RTD. The UN only released the first draft of the international human rights treaty on the RTD in January 2020. This thesis makes a case for the realisation of the RTD through devolution, as an appropriate national development policy in Kenya while international consensus on the RTD is still being sought.
This thesis argues that devolution in Kenya is designed to support the realisation of the RTD. This hypothesis is anchored on the argument that devolution in Kenya and the RTD share certain common elements such as; participation of the people, equity and the realisation of all human rights including the right to self-determination. This commonality therefore makes it possible for devolution in Kenya to augment the realisation of the RTD.
This thesis also argues that devolution in Kenya led to the birth of a development paradigm that is compliant with the RTD. This is discernible by delineating the features of devolution that support the realisation of the RTD. This thesis practically demonstrates how devolution has influenced equitable development, participatory development and the realisation of all human rights in Kenya as evidence of a RTD compliant development paradigm.
The decentralisation experiences of Ethiopia, South Africa and Germany indicate that while a decentralized system of government invariably activates the elements of the RTD such as equity and participation, deliberate policy and legislative steps have to be undertaken to align development programmes with the RTD. Additionally,
ii
the normative and institutional design of the decentralised system of government is key in securing the elements of the RTD.
For Kenya, this means that more has to be done beyond the normative and institutional structures of devolution in Kenya to make the RTD a reality in Kenya. Deliberate efforts have to be taken to align development praxis at county level in Kenya. Some of the recommendations to this end include making devolution functional, devolving human rights practice and raising awareness about the RTD.LL. D.Public, Constitutional, and International La
combining retributive and restorative justice to overcome the justice versus peace dilemma through the lens of Colombia´s process
No full textA justiça de transição, incumbida de assistir os processos de transição encetados
em sociedades marcadas pela violação em massa ou sistemática de direitos
humanos, tem a árdua tarefa de assegurar que é feita justiça em face dos crimes
cometidos e, simultaneamente, alcançada uma paz duradoura. Porém, o sucesso
dos processos de transição em cumprir com esta incumbência tem sido limitado
pelos obstáculos que, na prática, a aplicação do direito penal em contextos de
transição acarreta, e bem assim pelo insuficiente, e muitas vezes nocivo, papel que
os tribunais penais, presos a uma conceção convencional e retributiva de justiça,
têm desempenhado, em última instância, comprometendo a paz.
Consequentemente, as sociedades em transição têm sido sistematicamente
confrontadas com a impossível escolha entre sacrificar as hipóteses de paz, de
forma a cumprir os desígnios da justiça penal internacional, ou conformar-se com
a impunidade, em nome dessa mesma paz, vivenciando o que é comummente
referido como o dilema “justiça versus paz”. Com vista a ultrapassar este dilema,
a justiça restaurativa, proposta como uma abordagem de justiça em que os
objetivos da justiça e da paz andam de mãos dadas, tem sido
crescentemente preconizada e alegadamente implementada no âmbito da justiça
de transição, mormente, tendo sido reconhecida e teoricamente incorporada pelo
Tribunal Penal Internacional, com vista a poder assegurar, para além da justiça,
a paz. Não obstante o mérito que cumpre reconhecer a estes esforços, na prática,
a forma como esta nova abordagem perante o crime tem sido entendida em
contextos de transição vem limitada por uma sobreposição conceptual que a
constringe a uma mera forma alternativa e parcial de justiça, assim justaposta à
justiça retributiva, impedindo o aproveitamento do seu verdadeiro potencial para
ultrapassar tal dilema. A Jurisdição Especial para a Paz da Colômbia, porém,
veio demonstrar como a justiça restaurativa, quando devidamente concebida
como uma forma de complementar e enriquecer a justiça retributiva no âmbito da
justiça penal internacional, pode munir os tribunais penais com os meios para
genuinamente contribuírem para o sucesso dos processos de transição. Inspirada
por este modelo, esta Dissertação vem propor a adoção de uma abordagem mista
de justiça penal internacional em contextos de transição, conjugando processos e
sanções tanto retributivos, como restaurativos, para assegurar a justiça e,
simultaneamente, contribuir para a paz.Transitional justice, aimed at assisting societies in responding to legacies of
systematic or mass human rights violations, is tasked with the arduous endeavor
of simultaneously delivering justice for the crimes committed and achieving longlasting peace. The success of transitional processes in accomplishing this task,
however, has been constrained by the practical difficulties of delivering criminal
justice within transitional settings, paired with the insufficient and often harmful
role that criminal trials, rooted in a conventional, retributive conception of justice,
have played in transitions, hindering the chances of peace. Consequently,
transitional societies have systematically been faced with the impossible choice
between sacrificing peace to comply with the mandates of international criminal
justice or settling for impunity to ensue in the name of peace. This makes up what
is commonly referred to as the justice versus peace dilemma. With the intent of
overcoming this dilemma, restorative justice, as an approach to justice in which
the goals of justice and peace go hand in hand, has been growingly proposed and
allegedly applied within the field of transitional justice. Ultimately, this novel
approach was acknowledged and supposedly incorporated in the International
Criminal Court, with the aim of enabling the Court to both ensure justice and
contribute to peace in transitions. Notwithstanding the merit of such efforts, the
way in which restorative justice has been understood within transitional settings
insofar is limited by a conceptual overlap that, reducing it to a mere alternative and
partial form of justice, juxtaposed against retributive justice, has hindered the
harness of its true potential to contribute to overcoming the justice versus peace
dilemma of transitional justice. Colombia’s Special Jurisdiction for Peace,
however, has come to shed light on how restorative justice, when duly
acknowledged beyond this constricting understanding, and instead viewed as
means to complement and enrichen retributive justice within international criminal
justice, can equip trials with the means to take part in successful transitions.
Inspired by this model, this dissertation makes a case for a mixed approach to
international criminal justice in transitional settings, combining both retributive
and restorative criminal proceedings and sanctions to deliver justice for the
atrocities committed, all the while contributing to the chances of peace
In the aftermath of truth: implementing truth commissions’ recommendations on reparations - following through for victims
No full textTransitional justice emerged after the Second World War as a set of discrete measures, such as trials, truth commissions or reparations, to address the atrocities of a past regime and to transition societies away from the recurrence of atrocities. Since the 1990s there has been an increasing emphasis on the need for multifaceted, comprehensive transitional justice measures to effectively deal with impunity and the consequences of mass violence. It is no longer considered effective to pigeonhole discrete transitional justice mechanisms. Instead there is increasing discussion of a comprehensive package of measures that complement each other. Each of the areas of transitional justice – truth, justice, reparations, amnesties, guarantees of non-recurrence and, to a certain extent, demobilisation, disarmament and reintegration (DDR) – have their own particular focus, benefits and limitations. Although such measures can be complementary, there can also be overlap and tension between them, such as when trying to carry out prosecutions while at the same time seeking to secure truth, which requires careful crafting of social, political, economic and legal factors to avoid derailing the transition itself.Given that the focus of this chapter is on truth commissions and reparations, it will mainly address the connection between these two measures. Truth commissions and reparations, to a certain extent, have a symbiotic relationship through which they can complement and reinforce one another's goals in acknowledging the atrocities of the past, building social inclusion and trying to vindicate victims' suffering. The first part of this chapter explores the bond between these two mechanisms, drawing upon different examples of how recommendations for reparations are constructed by truth commissions and their justification. The second part of this chapter analyses the implementation of reparation recommendations, finding that in most cases states fail to follow through, or only do so where they are forced by civil society through legal and political pressure. The third part of this chapter briefly discusses transitional societies where reparations are made without a truth commission and their impact on the transition, before reaching a conclusion. As such, it is more likely than not that truth commissions can facilitate the implementation of reparations. That said, transitional societies are complex and fragile, and cannot be easily socially engineered; the past is Often still contested and fought through political and legal forums.<br/
- …
