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transitional justice
how to cope with regime atrocities
goals/strategies of transitional justice
- restoration of rule of law
- consolidation of democratic institutions
- justice for HR victims
- political reconciliation and national unity
2 approaches of transitional justice
1) engagement
2) avoidance/denial
what is the assumption made by the engagement approach?
national healing/reconciliation can only be done through disclosing, acknowledging, redressing regime wrongdoing through accountability.
what is the role of truth in the engagement approach?
indispensable
strategies of accountability in the engagement approach
- legal retribution: immediate and long-term impact = supremacy of law
- official purges
- restitution (return of stolen property)
- reparations (financial compensation)
- public apologies
- truth commissions (most important)
- political forgiveness
what are the 3 assumptions made by the avoidance/denial approach?
1) pervasive guilt impedes political reconciliation and creates further division of society.
2) accountability inhibits national reconciliation.
3) a forward-looking strategy in building a humane political order will prevent HR crimes from reoccurring.
two expressions of the avoidance approach
1) historical amnesia - deny past/neglect memory
2) amnesty - public acts that relieve responsibility
examples of engagement and avoidance
romania (engagement) and poland (avoidance - thick line)
political reconciliation (Daniel Philpott)
the restoration of right relationship
(overcome division)
six practices of political reconciliation (Daniel Philpott - critical to address past systemic evils)
1) building socially just institutions/relations
2) acknowledgement
3) reparation
4) punishment
5) apology
6) forgiveness
political reconciliation should be conceived as
the building/rebuilding of trust (Govier, Verwoerd)
social trust is indispensable to orderly, creative, and prosperous societies
Putnam, Fukuyama (social capital)
example of rebuilding trust
france/germany & US/germany post WW2 + international institutions = social/political solidarity
2 approaches to national reconciliation (Michael Feher)
1) purists - HR activists
2) pragmatists - gov officials
1) purists
- demand accountability for healing
crime exposed, stigmatized, punished -> justice, rule of law, dem inst -> peace, reconciliation
2) pragmatists
- reconciliation as a precondition for the consolidation of democracy and rule of law
- amnesty, forgiveness -> peace, reconciliation -> justice, rule of law, dem inst
is reconciliation the cause or the effect?
both
dominant way reconciliation is practiced
first justice, then peace -> states' primary moral task = justice
problems with "justice first"
1. conditions of strict justice are never fully realized.
2. national unity takes less priority
3. justice does not necessarily create community, empathy and compassion do.
nuremberg trials
sought to identify and punish major offenders, then pursue communal reconciliation through slow process of building democratic institutions
3 aspects of political reconciliation
1) retributive justice
2) restorative justice
3) political forgiveness
bases of retributive justice
when offenses are committed, moral and legal equality is destroyed.
how to restore moral equality according to retributive justice
public condemnation of offenders -> victims regain moral status
retributive justice paradigm
political communities can only be sustained if wrongdoing is prosecuted. this is the obligation of states
what happens when states fail to fulfill their obligation to retributive justice
the international community should take action
challenges of retributive justice
evidence, political instability, prosecuting offenders
case study for retributive justice
prosecuting rwanda's genocide offenders
rwanda history
- tutsi and hutu
- 1962 independence -> hutu power, redressed inequalities, reverse discrimination against tutsi
- 1980s: Rwandan Patriotic Front (RPF- Tutsi force)
- 1993: Arusha Accords - ceasefire between gov (Hutu) and RPF
rwanda genocide
- 1994 april-july: 800,000 dead
- rw justice system totally destroyed
- rw govt courts: too many detained
- gacaca
problems with gacaca
- no impartiality/legal protection
- easily manipulated, forms new injustices
- tutsi war crimes are exempted
ICTR - International Crime Tribunal for Rwanda
- considered to have low/no impact on rwanda in the social/political context
- very inefficient, $40 mil per detainee
restorative justice
- healing and restoration rather than punishment
- restoration of communal bonds through social/political reconciliation
restorative justice does not forget the past
1) describes truth of past offenses
2) encourages to admit guilt
3) expressing repentance
4) expressing remorse
5) reparation + restitution
strategy of restorative justice
1. moral equality restored
2. political renewal
1. moral equality restored
- offenders acknowledge responsibility, are prepared for legal punishments
- victims refrain from vengeance, acknowledge empathy, are liberated of anger
- forgiveness leads to political reconciliation
2. political renewal
individual forgiveness extended to community level
case study for restorative justice
south african apartheid
strategy taken in south africa
restorative justice through truth telling
- conditional amnesty to those who fully confessed
- priority was the healing of victims + restoration of communal bonds
1995 truth commission TRC divided into
1. HR Violations Committee
2. Amnesty Committee
3. Reparation and Rehabilitation Committee
ethics of the TRC - restorative justice paradigm questioned
- model undermines core societal norms, such as accountability, blame, and punishment
- minimizes memory of apartheid (john dugard)
ethics of reconciliation / restorative justice
- reconciliation = illegitimate public policy goal
- reconciliation - undemocratic doctrine threatening HR -> reconciliation through democracy, dem does not lead to communal solidarity, first unity then dem then reconciliation
is truth important?
yes. it advances healing and restores communal bonds
TRC critics
- is truth healing?
- no distinction between state vs ANC atrocities
- conditional amnesty - offensive to HR activists
political forgiveness
accepting/admitting wrongs of past, overcomes past through repentance and reconciliation
elements of political forgiveness
1) complete, public truth-telling
2) leaders express public contrition (monetary, genuine)
3) victim acknowledges contrition without vengeance/retribution
4) reconciliation
why TRC are not political forgiveness?
- pursued accountability through truth telling
- offenders did not confess voluntarily (was incentivized)
- provided amnesty
- TRC is multidimensional strategy that seeks to restore legal, social, cultural, political, spiritual life
case study for political forgiveness
the bitburg dilemma
the issue with the bitburg visit was not politics, but
good and evil
why do critics argue regain should not have visited bitburg?
remembering is more important than reconciliation, history is more significant than forgiving
consequentialist logic of decision
- cancellation would have jeopardized us-ge relations, hurt ge leadership
- blessing in disguise, as it made millions aware