Lecture 10-Transitional Justice

Transitional Justice

• Definition: Processes aimed at addressing a state’s past abuses to ensure accountability and reconciliation.

• Four Pillars of Transitional Justice:

  • Accountability

  • Justice

  • Truth

  • Reconciliation

Addressing Informal Transitional Justice for Indian Residential Schools

• Context: Residential schools represent the colonial effort to eliminate Indigenous populations.

  • Elimination is seen as a mechanism for improved societal structure by settlers.

  • Indigenous cultures deemed ungrievable, paralleling the elimination agenda.

Goals for Transitional Justice in Settler Colonial Societies

• Decolonization: Making Indigenous lives and deaths recognizable as losses that deserve grief and remembrance.

• Shifting perception of Indigenous culture to acknowledge its value and losses that it has endured.

Project of the Heart (PoH) as Informal Transitional Justice

• Objectives:

  • Acknowledge losses from residential schools.

  • Promote truth-seeking and reconstruction of history.

  • Call for transformative action by Canadians.

  • Emphasizes the pillars of transitional justice: truth, reconciliation, commemoration, and non-repetition.

VICTIMS

Key Concepts

• Primary and secondary victimization

• Prosecutorial tools

• Restorative justice

• Intersectionality

12.1 Introduction

• Victims of crime compensation information:

  • Offered by various US states like Texas, West Virginia, and New York.

  • Financial assistance available for 'innocent' victims of crime.

• Accessibility issues due to strict criteria, sparking dissatisfaction among applicants.

• The notion of the 'innocent victim' shapes debates in victimology.

  • Victims deemed 'innocent' usually had no role in precipitating their victimization.

12.2 Victims, Offenders, and the Role of the State

12.2.1 Victims as Humans

• Wemmers (2012): Critique of international human rights instruments favoring offenders while ignoring victims.

• Historical context: The 1948 Universal Declaration of Human Rights did not acknowledge victims directly, focusing on protecting individuals from totalitarian states.

• Emergence of several conventions promoting protection for vulnerable groups:

  • 1951 Convention Relating to the Status of Refugees

  • 1965 Convention on Racial Discrimination

  • 1979 Convention on the Elimination of Discrimination against Women

  • 1989 Convention on the Rights of the Child

  • 1984 Convention against Torture and Other Cruel Punishment

  • 2006 Convention on the Rights of Persons with Disabilities.

12.2.2 Lack of Recognition for Victims

• Victims have historically been overlooked in favor of offenders,

  • Domestic and international systems differing in focus.

• Reinforcement of victims as secondary players in justice proceedings, often viewed as mere witnesses.

• Wemmers (2012): Victims are often disempowered by an omnipotent state.

12.2.3 Movement Towards Formal Recognition of Victims' Rights

• 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power: a significant international advancement promoting victims' dignity and respect.

• Some impacts on national justice systems, improving victim support services.

• Landmark case: Doorson v. Netherlands enhanced victims' rights regarding testimonies.

• 1998 Rome Statute: Highlights prosecutors' responsibilities to protect victims in atrocity cases.

12.3 Victimization and Restorative Justice

• UN’s 2002 endorsement of restorative justice emphasized involving victims directly in the criminal process.

• Aim: Recognize nuances in victims’ realities and allow them to communicate feelings to the offenders.

• Restorative justice promotes dignity and recognizes the need for emotional healing alongside material compensation.

• Essential conditions for victims acknowledged through the 2002 UN Basic Principles that stress fairness for all involved parties.

12.4 Victims' Agency in Transnational and International Crimes

• Victims’ focus has been neglected in favor of broader political agendas, especially after 9/11.

• New categories of victims emerge, complicated by globalization. Criminal justice systems often ignore or politically exploit victims.

• Victim narratives shaped to fit political interests, limiting agency.

• A critical view of victim definitions disrupts the binary of victim and offender roles.

12.5 Conclusion

• No binding UN document protects victims' rights yet, but various trends are promoting greater recognition and balancing victims’ and offenders’ rights.

• Dominance of a conservative law-and-order approach in victim discourse needs reevaluation.

• Supranational courts have made strides in acknowledging victims' rights through various interventions, primarily driven by restorative justice principles.

Parmentier et. al: Human Rights in Situations of Transitional Justice

Introduction

• The twentieth century is often viewed as the bloodiest in human history due to the numerous violent conflicts and casualties.

• Key instances of atrocities from the past 50 years include:

  • The killing fields in Cambodia

  • Genocides in Guatemala and Rwanda

  • Ethnic cleansing in former Yugoslavia

  • Conflicts in East Timor and the Apartheid regime in South Africa

  • Civil wars in the Democratic Republic of Congo

• These events resulted in vast numbers of casualties, torture, and displacement.

• Historical conflicts include the two World Wars, which resulted in millions of deaths.

• Ongoing conflicts in the 21st century, such as in Afghanistan, Iraq, and Syria, continue this grim narrative.

• New political regimes face the challenge of "transitional justice" (TJ), focusing on addressing past human rights violations.

• The chapter aims to clarify the relationship between human rights and TJ, utilizing a criminological perspective.

• Overview of TJ’s core concepts and four main pillars, referencing Sierra Leone and Afghanistan.

Transitional Justice: Origins and Aspects

• The concept of transitional justice emerged in the mid-1990s post the Berlin Wall's fall.

• The 1998 Rome Statute established the International Criminal Court, framing serious human rights violations as international crimes.

• Secretary-General Kofi Annan defined TJ as processes aimed at addressing a society’s legacy of past abuses to ensure accountability, justice, and reconciliation.

• Teitel (2000) identifies four pillars of TJ:

  1. Criminal Prosecutions - holding offenders accountable.

  2. Truth Commissions - uncovering past violations and acknowledging victims' suffering.

  3. Victim Reparation Programmes - compensating victims.

  4. Institutional Reforms - reforming structures that permitted abuses.

• TJ often relates to state and individual responsibilities for serious human rights abuses.

• The goal of TJ is to establish rule of law in the long run, combating impunity for human rights violations.

Criminal Prosecutions

• Historically, states avoided prosecuting human rights violations; however, post-World War II and notable trials (Nuremburg and Tokyo) marked the start of legal accountability.

• The development of international human rights standards led to a duty for states to prosecute human rights violators, though execution remained inconsistent.

• Landmark national prosecutions in Greece and Argentina contributed to changing norms on accountability.

• The rise of international tribunals in the 1990s for the former Yugoslavia and Rwanda shifted the paradigm towards accountability.

• While criminal prosecutions affirm accountability, they face critiques such as:

  • Legal issues regarding retroactivity and independence.

  • Political challenges from powerful entities resisting prosecution.

  • Cultural issues emphasizing offenders over victims' experiences.

Truth Commissions

• Truth commissions aim to uncover and acknowledge the truth about past violations without establishing legal accountability.

• Their focus is on historical truths rather than individual legal responsibilities and highlight victims' rights to know.

• Hayner's key characteristics of truth commissions:

  1. Concerned with past events only.

  2. Investigate patterns of events over specific timeframes.

  3. Engage broadly with affected populations.

  4. Temporary and produce a final report.

  5. Supported by the state being investigated.

• Over 40 truth commissions have been established in various countries, notably:

  • South Africa: Truth and Reconciliation Commission.

  • Guatemala: Commission for Historical Clarification.

  • Peru: Truth and Reconciliation Commission.

  • Timor Leste: Reception, Truth, and Reconciliation Commission.

  • Additional recent commissions address Indigenous rights in Canada and the U.S.

Reparations for Victims

• Development of the right to reparation for victims recognized in international frameworks, primarily addressing state responsibilities.

• The UN General Assembly’s adoption of Basic Principles and Guidelines in 2005 specified recipient rights in five categories:

  1. Restitution - restoring victims' property or rights.

  2. Compensation - financial reimbursement.

  3. Rehabilitation - medical, psychological, and legal support.

  4. Satisfaction - wide-ranging acknowledgment initiatives like memorials and public apologies.

  5. Guarantees of Non-Repetition - preventing future violations through institutional reforms.

• Institutional reforms include broader changes in governance, justice systems, and societal frameworks to uphold human rights.

Case of Sierra Leone

• Sierra Leone's civil conflict (1991-2002) resulted in widespread abuses, necessitating a balance between peace and justice.

• Peace vs. Justice: Key peace accords included amnesties but drew criticism for prioritizing combatant protection.

• The Special Court for Sierra Leone (2002) aimed to prosecute high-level offenders, although it faced budgetary and relevance critiques.

• The Truth and Reconciliation Commission (TRC) (2002-2004) produced comprehensive recommendations for addressing human rights violations but experienced challenges in implementation.

• The need for victim-centric reparations and institutional reforms highlighted ongoing struggles for accountability in Sierra Leone.

Case of Afghanistan

• Afghanistan has endured conflict for over four decades, with no established accountability mechanisms for historical atrocities.

• Efforts like the 2005 Action Plan for Peace, Reconciliation and Justice proposed key TJ components but faced resistance.

• The Amnesty Law (2009) effectively institutionalized impunity for past human rights abuses, undermining potential progress toward justice.

• Current conditions and a continuation of warlord rule negate meaningful TJ implementations, resulting in rampant corruption and neglected socioeconomic rights.

Future Outlook

• The expansion of transitional justice frameworks increasingly acknowledges socioeconomic rights as crucial alongside civil and political rights.

• Criminology's role in TJ suggests a need for integrating various social and political contexts into accountability mechanisms.

• The interrelationship between TJ and criminology emphasizes that understanding the root causes of violence is imperative for meaningful justice solutions.

Settler Colonialism and the Politics of Grief: Theorising a Decolonising Transitional Justice for Indian Residential Schools Augustine S. J. Park

Abstract

• Context: Transitional justice (TJ) must focus on decolonisation in the face of settler colonialism.

• Settler Colonialism: Aims for Indigenous population disappearance to establish new societies on expropriated lands.

• Argument: Proposes a politics of grief that:

  1. Re-conceptualises Indigenous death as grievable.

  2. Mobilises grief politically for transformative justice.

• Case Study: Analysis of deaths at Canadian Indian Residential Schools (IRS) and Project of Heart as an informal TJ mechanism.

Introduction

• Focus: Theorising TJ in settler colonial contexts, especially regarding Indian Residential Schools (IRS).

• Key Argument: TJ should aim for decolonisation, promoting decolonisation demands and allyship with movements focused on decolonisation.

• Definition: Settler colonialism involves colonisers establishing political orders on expropriated lands.

Theory of Settler Colonialism

• Elimination Logic: Indigenous populations are eliminated through various means (death, assimilation).

• Theoretical Claims: Indigenous death rendered ungrievable, making Indigenous life derealised.

• Aim: Develop a dual conception of decolonisation combining a mental decolonisation and structural justice.

Context of Indian Residential Schools

• Comparison: Similar to Australia’s Stolen Generations, IRS aimed at the assimilation of Indigenous children and have been described as cultural genocide.

• Historical Context: Operated for over a century with detrimental conditions leading to serious health issues and numerous deaths.

• Impact: Significant negative impacts on survivors and communities, including loss of culture and high rates of trauma.

Transitional Justice Mechanisms in Canada

• Indian Residential Schools Settlement Agreement (IRSSA): Largest class-action settlement in Canadian history aimed at healing and education.

• Components:

  1. Truth and Reconciliation Commission (TRC).

  2. Common Experience Payment (CEP).

  3. Independent Assessment Process (IAP) for abuse claims.

  4. Funding for healing programs and community-initiated projects.

• Critique: Ongoing debates about the effectiveness of these measures in truly addressing Indigenous grievances.

Critiques of Transitional Justice in Settler Colonialism

• Criticism of TRC: Seen as limiting accountability and reinforcing colonial narratives.

• Examination: Lack of connection to ongoing colonialism undermines genuine reconciliation efforts.

Theoretical Framework of Elimination and Ungrievability

Settler Colonialism and Its Impacts

• Concept: Settler colonialism is dynamic and results in both physical and social death of Indigenous populations.

• Examples of Elimination: Historical instances where physical death was coupled with socio-political erasure.

Ungrievability

• Definition: The state where the lives of certain populations are rendered unworthy of grief.

• Conceptual Basis: Judith Butler’s work highlights how violence can render lives ungrievable.

• Conditions for Ungrievability:

  • Precarious existence defined by systemic vulnerabilities.

  • Derealisation of Indigenous life as not quite human leads to devaluation in death.

Patterns of Ungrievability in IRS

1. Deaths Produced by IRS:

   • Causes include medical negligence and abuse.

2. Denial of Grief:

   • Lack of communication regarding deaths and the emotional toll on survivors.

3. Disrespect for Remains:

   • Improper handling and treatment of deceased Indigenous bodies.

The Politics of Grief in Decolonising Transitional Justice

• Grief as a Political Tool: Understanding grief’s political potential can aid in achieving structural justice.

• Grievability: Asserting the worth of Indigenous lives in death challenges settler colonial narratives.

Project of Heart (PoH)

• Overview: An informal TJ initiative aimed at commemorating IRS victims and raising awareness.

• Steps of PoH: Research into IRS history, creative expressions of remembrance, survivor testimonies, and social justice actions.

• Importance: Represents a grassroots approach to processing grief and advocating for social justice regarding Indigenous issues.

Conclusion

• Summary: Transitional Justice in settler colonial contexts must strive for decolonisation.

• Call to Action: Must connect grief to political movements aimed at reversing reduction of Indigenous life to ungrievability.

• Urgency for Recognition: Emphasises on the need to transform societal perceptions surrounding Indigenous deaths and engage in actions that reflect this value.