Transitional justice JUSTIN Judicial Studies Institute Masaryk University Katarína Šipulová Brno, 24 September 2024 •Course requirements •What do we need to know about a transition? •What is Transitional Justice? • • • Outline •Lectures •1. Introduction 24 September 2024 •2.+3. ICTs 1 October 2024 •4.+5. ICC 15 October 2024 •6. Debate 22 October 2024 •7. TRCs 5 November 2024 •8.+9. De-communisation 19 November 2024 •10. Victim-oriented TJ 26. November 2024 •11.+12. Movie+debate 3. December 2024 •13. EU and International actors 17. December 2024 • • • • • Course requirements •Exam and requirements: • •1 position paper (2000 words long) •Deadline: 10 December 2024, midnight •Analytical •Grounded in theory •Feel free to state your position • •Debate •Selection of groups 1. October 2024 •Submission of reports 18 October 2024 •Debate: 22 October 2024 •Reports of Referees: 29 October 2024 •Exam: written, open-ended questions • • • • • • Course requirements •When? •Transition from what? • •How long does it last? • • • • • • • What is a Transition? Theory of transition Dankwart Rustow 1. national unity = statism 2. preparation = liberalisation 3. decisive phase = transition 4. habitation = consolidation Przeworski There is no unitary model of transition or consolidation Democratization Democratization htthttps://ourworldindata.org/democracy Third Wave Transitions —Huntington Linz Share – Mainwaring — (1)Transformation = reforma = transaction (2)Replacement = ruptura = breakdown/collapse (3)Transplacement = ruptforma = extrication — What is Transitional Justice? a set of judicial and non-judicial mechanisms (institutions, policies, and practice) designed to deal with atrocities and large, almost systematic violations of human rights in the process of transition, aftermath, or anticipation of the fall of a past non-democratic regime (Neil Kritz) What is Transitional Justice? Ruti Teitel: the view of justice associated with periods of political change, as reflected in the phenomenology of primarily legal responses that deal with the wrongdoing of repressive predecessor regimes Encyclopaedia of Genocide and Crimes Against Humanity: framework for confronting past abuse as a component of a major political transformation. This generally involves a combination of complementary judicial and non-judicial strategies UN Secretary-General: the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels on international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof. What is Transitional Justice? • it follows primarily political goals (although addresses also legal, historical and philosophical questions of justice) • • It aims to challenge the legitimacy of old structures and political practices and •to facilitate a moral, political, and legal break from previous regime •to establish and stabilize the democratic legitimacy of a new elite •to lay ground for development of new civil society •to deter future repetition of HR atrocities Where is transitional justice happening? Typically used by: new elites striving to come to terms with atrocities committed by the previous regime. •Postconflict societies •Aiming for democratic transition •Authoritarian postconflict societies with strong cleveages •Other regime transitions recognising past regime’s crimes •To democracy •Away from democracy • •When is TJ happening? •During transition •In the aftermath of transition •In the wake of the transition Historical roots Historical and legal roots •1992 Salzburg (Charter 77); Ruti Teitel and Neil Kritz •Aeschylus’ drama The Oresteia: “The matter is too big for any mortal man who thinks he can judge it.… I shall select judges of manslaughter, and swear them in, establish a court into all time to come…. I established this tribunal. It shall be untouched by money-making, grave but quick to wrath, watchful to protect those who sleep, a sentry on the land.” •Ruti Teitel: Latin America •John Elster – Closing the Books: historical examples, including WW2 • Legal roots: •Jus post bellum •Jus ad bellum (UN Charter) •Jus in bello (Hague and Geneva Conventions) •Kantian imperative of punishment •Deterrence and peacekeeping Dilemmas of transitional justice •Missing unified theory •Truth v justice dilemma •Peace v justice dilemma •Democracy v justice dilemma • • •Adjective transitional is misleading •Winter and Hansen: any normative changes inside of a political system • •What law to apply? •Whom to prosecute? •Retroactivity? • • Actors of transitional justice • •International – National •International organisations •UN •International courts and tribunals •TRCs •states •State – Non-state •Governments •Opposition (dissent, new elites) •Judiciary (ordinary and constitutional courts) •NGOs •Civic society •Church Transitional Justice Mechanism Transitional Justice Brian Grodsky (2009) Trends in transitional justice •Internationalisation (externalisation) of TJ •Increasing number of actors •Increasing range of mechanism •Smaller space for maneuvre for statespostoj vlád TJ and international law •first: domestic justice processes following regime transition •now: globalizing movement of HR: new normative expectations • •Punish v forget dilemma •Controversial stance on amnesties • • 1. Impunity 2. Accountability De facto De jure Legal Civil Administrative - forget - exil - blanket/ general amnesty - National CP - International CP - International ad hoc - International permanent - Hyberid - TRCs -Reparations -Funds -Lustration Factors influencing TJ decisions •vlád Thank you for your attention Katarína Šipulová katarina.sipulova@law.muni.cz Masaryk University