Rebuilding Sierra Leone

The University of South Carolina School of Law recently hosted a very interesting conference entitled “Rebuilding Sierra Leone: Changing Institutions and Culture” (logo at right). Organized by Professor Joel Samuels, this April 1 conference was one of the first interdisciplinary academic conferences in the United States to focus solely on the unique challenges of redeveloping Sierra Leone after its decade-long armed conflict in the 1990s.
The goal of the conference was to highlight salient issues that have hindered Sierra Leone’s post-war rebuilding, and to begin discussion among academics working in different disciplines on future collaborations on Sierra Leone-specific projects.
The conference was divided into four panels:
► “Sierra Leone in Context”
► “Paths to Rebuilding Sierra Leone”
► “The Special Court for Sierra Leone”
► “The Problem of Child Soldiers”
Some highlights included a talk by Professor Erika George (University of Utah) (left) that began with the observation that erosion or failure of the education system is one of the first indicators of a failing or failed state. She linked this idea to the state of education in Sierra Leone prior to and after the conflict, noting some post-conflict improvements but also some very worrying gaps that still remain.
Another thought-provoking speaker was Professor Jennifer Moore (University of New Mexico) (right), who argued that post-conflict Sierra Leone needs not only courtroom (retributive) justice, it also needs to focus on social justice (material well-being), and historical justice (addressing peace in community life. She highlighted the work of two nongovernmental organizations within Sierra Leone – the Centre for Development and Peace Education and Fambul Tok – in contributing to the two latter forms of justice.
Yours truly, Valerie Oosterveld, had the honour of presenting a paper on the jurisprudence of the Special Court for Sierra Leone with respect to gender-based crimes against humanity and war crimes. I traced positive and less-than-positive legal reasoning with respect to gender-based acts in the trial judgments in what are usually referred to as the Armed Forces Revolutionary Council and the Civil Defence Forces cases. I contrasted these cases with the Revolutionary United Front case, arguing that the RUF case represents a step forward in efforts to contextualize rape, sexual mutilation and other forms of sexual violence directed against women, girls, men and boys, as well as gender-based crimes such as forced marriage. My presentation represented a continuation of arguments outlined in a recently-published article - “The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments” (2011) 44(1) Cornell International Law Journal 49-74.
The conference participants also heard interesting presentations by: Prof. Christopher DeCorse (Syracuse University), Herb Frazier (author), Kevin Lowther (author), Joseph Opala (Bunce Island Conservation Project), Ambassador June Carter Perry (former US Ambassador to Sierra Leone), Lt. Col. Mark Daubney (British Embassy), Ambassador David Scheffer (Northwestern University), James Hodes (Cochran Law Firm), Anthony Triolo (International Center for Transitional Justice), Professor Daniel Hoffman (University of Washington), Professor Mark Drumbl (Washington & Lee University) and Professor Noah Novogrodsky (University of Wyoming).
There was discussion among the conference participants about publishing an edited volume focused on possibilities and challenges facing Sierra Leone in its rebuilding efforts: I will keep IntLawGrrl readers informed about this potentially exciting development!

Write On! Transitional justice amid conflict

(Write On! is an occasional item about notable calls for papers)

Paper proposals are being sought for The Potential Role of Transitional Justice in Active Conflicts: An International Conference to be held from November 13 to 15, 2011, in Jerusalem. The conference will launch a series of conferences in the Minerva Center for Human Rights at Hebrew University will employ a broad, interdisciplinary approach and use the comparative experience of other societies and international experts to explore transitional justice.
This 1st conference will examine the potential impact of transitional justice mechanisms while conflicts are still ongoing. Chairing the planning committee is Dr. Tomer Broude of Hebrew University; other planners include IntLawGrrl guest/alumna Fionnuala Ní Aoláin and Professor Ruti Teitel of New York Law School. Questions that may be addressed at the conference include (full list is in the call for papers):
► Are there conditions in which mechanisms of transitional justice can make a positive contribution to the cessation of violence and human rights infringements?
► Can state-led transitional justice mechanisms be formed during ongoing conflict, or will lack of political will, economic conditions, and the need to prioritize other objectives such as security, make any efforts in this direction ineffective?
► What lessons can be learned from cases in which transitional justice was pursued while the guns were not yet silent, such as in the International Criminal Tribunal for the former Yugoslavia, or in the International Criminal Court's intervention in the situation in Darfur?
► Are certain transitional justice mechanisms more suitable for application to ongoing conflicts?
► What about informal, as opposed to state-led, processes?
► Specifically in our local context, can transitional justice mechanisms assist in reaching greater reconciliation and coexistence between Israeli Jews and Arabs? Authors of selected proposals will be offered full or partial flight and accommodation expenses. It's anticipated that the conference will result in the publication of a dedicated volume or journal issue.
Deadline is May 1, 2011, for submission of 2-page proposals, plus CV, via e-mail to mchr@savion.huji.ac.il. Details here.

Go On! Transitional Justice for Darfur

(Go On! is an occasional item on symposia and other events of interest)

A report entitled Toward Peace with Justice in Darfur: A Framework for Accountability will be launched this Wednesday, March 23, from 10 -11:30 a.m. at Tillar House, American Society of International Law, 2223 Massachusetts Avenue, N.W., Washington, D.C. The report represents the culmination of the two-year Darfur Project partnership between the D.C.-based Robert F. Kennedy Center for Justice and Human Rights and the California International Law Center at King Hall, University of California Davis, School of Law.
Envisioned by Dr. Mohammed Ahmed Abdallah Eisa (prior posts), Darfuri physician and recipient of the 2007 RFK Human Rights Award, and principally authored by yours truly, CILC Fellow Kathleen A. Doty, the report was prepared under the direction of RFK Human Rights Director Monika Kalra Varma, an IntLawGrrls guest/alumna, and CILC Director Diane Marie Amann, IntLawGrrl. Each of the four of us will speak at Wednesday's event.
The Toward Peace with Justice report provides a comprehensive analysis of the key transitional justice issues that will face the Darfuri people as they come to grips with past atrocities in Sudan. It is intended to be used as a tool to aid members of Darfuri civil society in determining which transitional justice mechanisms to implement.
Please join us for the launch. Space is limited, so please reserve your place to rsvp@rfkcenter.org.

Read On! South Africa constitutionalism

Our colleague Dr. Emanuela Fronza, a law professor at the University of Trento, Italy, recommends a brand-new book, Constitutionalism and Transitional Justice in South Africa (2011), by Dr. Andrea Lollini, Assistant Professor of Comparative Constitutional Law, University of Bologna.

The publisher writes:

Investigating the post-apartheid transition in South Africa from a multidisciplinary perspective involving constitutional law, criminal law, history and political science, this book explores the overlapping of the post-apartheid constitution-making process and the Amnesty Process for political violence under apartheid and shows that both processes represent important innovations in terms of constitutional law and transitional justice systems.

Religion & Transitional Justice

My institution (Santa Clara) recently hosted Paul Van Zyl, former Executive Secretary of South Africa’s Truth and Reconciliation Commission, co-founder of the International Center for Transitional Justice, and CEO of Peace Ventures, a new NGO dedicated to identifying and providing market access to responsible businesses that are both profitable and help to prevent conflict or promote peace. The theory is:

By creating jobs, facilitating interaction between groups on opposite sides of the conflict and promoting cooperation across borders, these “peace businesses” can generate profit while making a global contribution to the prevention of conflict and protection of human rights.

Paul's talk focused on religion and its role in transitional justice, particularly in efforts to promote reconciliation—a key feature of many transitional justice efforts—and even forgiveness. Drawing on the case studies of South Africa, East Timor, and Morocco, he discussed:

1. How faith influences what is desirable;
2. How faith can be manipulated to impede peace and justice; and
3. How justice efforts can influence faith and religion

The case of Morocco will be particularly interesting to our readers in that the truth commission there had to decide whether the reparations regime for the families of the disappeared would rely upon Shari'a succession rules. Under these rules, the eldest male heir of the dead or disappeared (such as a brother or male child) would receive the deceased's estate, leaving the wife with nothing. The truth commission decided to depart from these default rules and allow wives, daughters, and mothers to recover in the wake of Morocco's systemic violence. The truth commission thus created a space to consider ways to ensure more just outcomes and ended up prompting a broader and ongoing conversation within Moroccan society about potentially reforming the succession regime for all contexts.

Paul stressed that sequencing is an important component of any transitional justice agenda—what is possible or desirable in the immediate post-conflict period may evolve as a society moves farther away from the period of abuse or repression.

The webcast of Paul's fascinating talk is available here.

Post-Conflict Justice Survey Invitation

If you are now working or have ever worked in the field of post-conflict justice, you are invited to take part in a survey about your work experiences. You can take the survey in English here or in French here. Those who have worked on accountability (trials, international/hybrid criminal tribunals, truth and reconciliation commissions, and so on) and those who have worked on post-conflict rule of law are all welcome to participate.The survey should take only about 15 minutes to complete, it is anonymous, and participants are eligible to win a $100 amazon.com gift card. (We've given some away already!) More details are discussed in my earlier post about this study.

To those of you who have already completed the survey, thank you! If you haven't taken it yet, please take a few minutes to fill it out and help us understand this growing area of international law. And of course, you are also welcome to forward this invitation to your post-conflict justice colleagues and friends.

This survey is part of a research study that I am conducting. If you would like any additional information, you can contact me directly at ebaylis@pitt.edu.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

The wrangling over reparations also helped turn the German people against co-operation with the international system.

-- Oxford historian Margaret MacMillan (right) in a New York Times op-ed marking the recent payment-in-full by Germany of reparations assessed against it at the end of World War I. In the essay Macmillan (prior IntLawGrrls posts) seesaws between the good and the bad, the rightness and wrongness of these reparations -- an ambiguity that, as she notes, persists in postconflict situations to this day.

Write On! 'Local owners' postconflict

(Write On! is an occasional item about notable calls for papers.)

Our colleagues at the Grotius Centre for International Legal Studies(prior post here), University of Leiden, seek papers for presentation at a workshop to be held May 5 and 6, 2011, at The Hague, Netherlands. (Day 1 events will be at the Peace Palace, home to the International Court of Justice; Day 2, at Leiden's Hague campus.)
The workshop, entitled Post-Conflict Justice and ‘Local Ownership’: Assessing the Impact of the International Criminal Court, is part of a 4-year study co-directed by IntLawGrrls' alumna Larissa van den Herik and by Carsten Stahn, with the assistance of researchers Christian De Vos and Sara Kendall. The aim is to assess the impact of ICC intervention in the countries where it has opened situations: Democratic Republic of Congo, Uganda, Central African Republic, Sudan, and Kenya. Organizers write:

The anticipated closing of the ad hoc and hybrid tribunals, combined with the expanding jurisdiction and practice of the International Criminal Court (ICC), offers an important opportunity to step back and critically assess the social and legal impact of the ICC’s prosecutions and investigations on local populations. More research is needed as to whether and how ‘local ownership’ of the ICC can be operationalized if, indeed, it can. Given that the ICC’s jurisdiction is complementary to that of domestic legal systems, there is an acute need to revisit the modalities and timing of legal reform and international justice in light of the priorities and interests of local constituencies and actors.

Papers are invited under the following 4 themes:
► Conceptualizing the Local
► Social Impact of the International Criminal Court
► Legal Impact of the International Criminal Court
► Methods and Methodology
The many possible subtopics within each theme are detailed in the full call for papers.
Proposals for papers, which may be considered for publication in a special edition of Criminal Law Forum, should be submitted electronically no later than February 1, 2011, to pcj@cdh.leidenuniv.nl. Proposals should include the author’s name and full contact information, and an abstract of no more than 500 words.

On the Job! Jus Post Bellum Position

(On the Job! pays occasional notice to interesting intlaw job notices)

The Grotius Centre for International Legal Studies (Leiden Law School & Campus Den Haag) has announced two funded PhD vacancies for the project

From Conflict Termination to Peacemaking: Role and Contours of a Contemporary Jus Post Bellum.

The project is funded by the Innovational Research Incentive Scheme (Vidi) of the Netherlands Organisation for Scientific Research (NWO). It investigates whether and how a modern conception of ‘Jus Post Bellum’ may facilitate greater fairness and sustainability in conflict termination and peacemaking, based on analysis of just war theory, peace settlements, norms and principles in the area of peacemaking and selected case-studies. Analytical research is combined with expert consultations and empirical elements in order to develop and test policy principles and best practices.
The deadline for application is 14 January 2011.
Thanks to our friend and colleague Carsten Stahn (right), an expert on jus post bellum, for sending the word out.

Fragile peace in Liberia

'There's peace in Liberia, but peace is fragile.'

So says Ellen Margrethe Løj (left), since 2007 the U.N. Special Representative for Liberia. (credit for photo of Løj pinning U.N. medal on Nigerian peacekeeper) Formerly a career diplomat in Denmark, Løj served as the Danish Permanent Representative to the United Nations from 2001 until shortly before her appointment to the Liberia post.
Løj's comment was published yesterday, in a San Francisco Chronicle editorial entitled "U.N. role works as peacekeeper in Liberia." The editorial was among several items in the Chronicle's examination of how things stand in Liberia years after the end of active civil war 7 years ago. The series anticipates balloting next year, during which Ellen Johnson Sirleaf (right; prior IntLawGrrls posts), President since 2006, will vie for re-election. Other articles include:
► An overview of post-civil war Liberia;
► Efforts to reintegrate ex-child soldiers;
► The past, present, and future role of women as peacemakers;
► The challenge of disputes over land; and
► Labor at a Firestone factory.
All well worth the read.

Designing Bespoke Transitional Justice

The field of transitional justice is in need of a unified theory that addresses flaws in contemporary approaches to accountability for mass violence. My most recent article, Designing Bespoke Transitional Justice: A Pluralist Process Approach (published in the Michigan Journal of International Law) presents a novel theory of effective transitional justice processes as those that successfully reconstruct social norms concerning mass violence.
Because norm generation is an inherently communal and contingent social process, transitional justice ought to be primarily locally-controlled and always precisely tailored to particular events and societies. In a word, it must be bespoke. This approach seeks to replace a universalist vision of transitional justice -- imposition of a uniform set of substantive values -- with a pluralist approach to transitional justice -- reconciliation of competing value frames through an inclusive process. This theory should be used to inform the design of effective transitional justice mechanisms ex ante, rather than to assess the impact of extant institutions ex post.
The current reliance on international criminal law as the favored normative framework for transitional justice results in several theoretical and structural problems (detailed further in the paper). Drawing on several academic disciplines, the article suggests that, in order to successfully reconstruct social norms, the local population must perceive transitional justice mechanisms as legitimate and the values they propound as worthy of internalization. Transitional justice mechanisms carefully tailored to the society they serve will be perceived as significantly more legitimate than institutions drawn from a "universal" mold.
The article provides the first comprehensive attempt to catalogue the perceptions and attitudes of local populations toward contemporary transitional justice mechanisms. Empirical surveys and cultural studies demonstrate legitimacy gaps that have largely been caused by failures of international criminal courts to incorporate local perspectives and preferences. Other mechanisms have been more successful in garnering legitimacy, but these locally grounded accountability efforts have limitations of their own. The central lesson from these case studies is that the existing catalogue of transitional justice institutions should be viewed as a spectrum rather than a hierarchy of options.
The article then offers concrete suggestions for crafting effective transitional justice mechanisms. It presents design principles that aim to buttress the legitimacy of the source, procedure, and substance of these institutions, as well as evidence-based and locally grounded mechanisms to implement these principles.
The article concludes by situating its proposals in current international law and dispute resolution literature. Global legal pluralism scholarship assumes that competing visions of substantive justice will exist within the society afflicted by mass violence and aims to incorporate, or at least respond to, a variety of perspectives. Dispute resolution literature advocates for a flexible, inclusive process of dispute resolution design rather than a rigid adversarial legalist approach. Drawing from both of these literatures, an inclusive and carefully structured design process achieved through prescriptive empiricism offers tantalizing potential to create more effective mechanisms of transitional justice.

Post-Conflict Justice Survey & Interviews

Have you worked in the field of post-conflict justice?
Would you like the chance to share the story of your experiences?
If you have ever worked on issues relating to post-conflict rule of law or accountability for atrocities, you are invited to participate in a survey about your work experience. You can take the survey on-line in English here. Or if you would prefer to take the survey in French, click here.
The survey, which is being conducted by yours truly, Professor Elena Baylis at the University of Pittsburgh Law School, should take only about 10-15 minutes to complete.
As thanks for participating in the survey, you will be eligible to win a $100 Amazon.com gift card. One of every 25 people participating in the survey will win. At the end of the survey, you will see a report summarizing the survey responses so far and indicating how your responses compare to those of other survey-takers. You will also be given the chance to request a copy of the final report of this research study.
We would also welcome the opportunity to talk to you about your post-conflict justice work. You will have the chance to volunteer for an interview at the end of the survey. Interviews will be brief (no more than 30 minutes) and can be conducted in person or over the phone.
The purpose of this research study is to learn about the work and career choices of people working on post-conflict justice issues and to examine what effect those choices are having on the development of the field of post-conflict justice. This is the first study to focus on the role of the people involved in post-conflict justice, rather than primarily on its processes or institutions. By participating, you will help us better understand this emerging area of the law -- and have the chance to tell your story as well.
The survey is anonymous, and interviews can also be conducted anonymously if you wish. All individual responses are confidential and will be kept secure. The data from the survey will be reported only in the aggregate. There are no foreseeable risks to you from participating in this research study, and the only benefit offered is the chance at winning a gift card. Your participation is voluntary and you may withdraw from the study at any time.
If you have any questions about this study, or if you wish to volunteer for an interview or request a copy of the final report without taking the survey, you may contact me directly at ebaylis@pitt.edu.

Write On! Transitional Justice

(Write On! is an occasional item about notable calls for papers.)

The International Journal of Transitional Justice invites submissions for its 2011 special issue titled "Civil Society, Social Movements and Transitional Justice." Guest-editing the issue will be Dr. Lucy Hovil (left), Senior Researcher, Citizenship and Displacement in the Great Lakes region, International Refugee Rights Initiative; and Moses Chrispus Okello, Project Coordinator, Beyond Juba Project and Senior Research Advisor, Refugee Law Project, Uganda.
Possible topics to be covered include:
► Survivor/victim organizations and transitional justice
► Transitional justice, as a social movement, and as an international human rights movement
► Political context for civil society operating in periods of transition
► Roles of various entities and actors, including funders, civil society, media, and popular culture
► Relationship among local, national, transnational and international civil society, as well as political context for civil society operating in periods of transition
► Impact of transitional justice mechanisms on civil society
► Engagement of religious actors in transitional justice processes
► Art and literature
► Women's groups and transitional justice
► Civil society and disarmament, demobilization and rehabilitation
The deadline for submissions is April 1, 2011. Papers should be submitted online from the Journal's webpage. For questions or further information, please contact the Journal's Managing Editor at ijtj@csvr.org.za.

Open wounds after war

(Delighted to welcome back alumna Jennifer Kreder, who contributes this guest post)

The first major Khmer Rouge defendant has been brought to justice with the 30-year sentence just handed down (left), as posted, by the Extraordinary Chambers in the Courts of Cambodia. (photo credit)
I believe postwar prosecutions for human rights violations are beneficial for victims, but that there are risks as well. When people who have committed heinous crimes get less than the maximum sentence, I think it is foreseeable that many victims will be hurt again. On the other hand, if every defendant gets the maximum sentence, the tribunal will not appear to be objective.
Then, there are other ways to deal with postwar open wounds, such as truth commissions and civil litigation, which may occur in courts beyond the borders of the nation that experienced war (often internal civil war).
I would love to hear others' viewpoints about these issues:
► What do you think is helpful for the individual victims and the nation, and why?
► Should U.S. courts hear postwar claims? If so, when and why?
► Should it depend on the location of victims who fled a murderous regime? Or on the location of their property? Or on whether significant remedies are available in the nation where the war occurred?
► Should it depend on a green light from the executive branch?
I am currently exploring the intersection of the "open wounds" idea and the cultural property arena.
For example, Tuol Sleng (right), the prison where the just-sentenced defendant, known as Duch, led the torture and murder of so many innocents, is now a Genocide Museum.
Part of Tuol Sleng's roof collapsed last week. Some people said the souls of the dead were crying out for justice.
Certain types of property, real property and chattels, have meaning that transcends finances. Caring for such property thoughtfully can help heal postwar wounds, whereas its destruction can feel like new wounds to wartime victims.
Another example of the intersection of human rights, war, and cultural property concerns terrorism and antiquities that were found within the borders of modern-day Iran but now are located in U.S. museums.
In recent years Congress a number of laws purporting to give victims of terrorism means to redress:
► That part of the 1996 Antiterrorism and Effective Death Penalty Act that allows American victims to sue countries designated as sponsors of terrorism; and
► The Civil Liability for Acts of State Sponsored Terrorism Act, a/k/a the Flatow Amendment in honor of victim Alisa Flatow), which authorizes U.S. courts to award money damages to victims of terrorism.
In fact, this legislation has proved ineffectual -- a “sound bite” that has foisted conflicting jurisdictional mandates upon the federal courts, sucked terrorist victims into a vacuous, exhausting drama with no chance for justice, and interfered with the President’s ability to conduct diplomatic relations in the Middle East.
One group of victims is mired in multiple jurisdictions, trying to enforce an extremely large default judgment against the Islamic Republic of Iran by forcing auctions of antiquities like these Persian tablets, housed at the University of Chicago's Oriental Institute. Other collections subject to this complex litigation may be found at, to name a few sites, Harvard University, the Field Museum of Natural History in Chicago, and the Museum of Fine Arts in Boston. Congress, in this political posturing, required the U.S. Department of Justice to participate in the litigation in a way that runs counter to the victims’ interest. The victims likely feel ignored and maligned by their own President, while Congress all along was the master puppeteer of their false hopes. Kimberly deGraaf and I have co-authored an article on the subject, "Museums in the Crosshairs: Unintended Consequences of the War on Terror," forthcoming in the Duke Journal of Comparative & International Law.
No one believes that dealing with property ever will bring back the dead or afford full "justice" to victims. But many of us believe that the symbolism of such property is significant.
Do you have thoughts on these issues?
Can you provide other examples of postwar wounds that need redress to allow healing to occur?

(A version of this post appears at PrawsfBlog)

Guest Blogger: Fionnuala Ní Aoláin

It's IntLawGrrls' great pleasure to welcome Dr. Fionnuala Ní Aoláin (left) as today's guest blogger.
Fionnuala holds the Dorsey & Whitney Chair in Law and is Associate Dean for Planning and Research at the University of Minnesota Law School, Minneapolis. She's also Professor of Law at the University of Ulster and cofounder and Director of the university's Transitional Justice Institute, with offices in Belfast and Derry, respectively the largest and 2d-largest cities in Northern Ireland.
In her guest post below, she discusses the release last week of the Bloody Sunday Inquiry report on the 1972 paratrooper killings of civilians in Derry, placing the event in the context of transitional justice discourse.
Fionnuala's previously been a Visiting Scholar at Harvard Law School, Associate-in-Law at Columbia Law School, Visiting Professor at Columbia University's School of International and Public Affairs, Associate Professor of Law at the Hebrew University in Jerusalem, and a Law & Public Affairs Fellow at Princeton University. She received her LL.B. and Ph.D. from the Law Faculty at Queen's University in Belfast, and also holds an LL.M. degree from Columbia.
As is evident from her list of publications (SSRN here), Fionnuala's an internationally published expert and scholar in the areas of human rights, gender, and other issues related to transitional justice, on feminist legal theory, and on states of emergency. Law in Times of Crisis (2006), which she co-authored with Minnesota Law Professor Oren Gross, received a 2007 Certificate of Merit from the American Society of International Law, the organization for which she just began a 3-year term as a member of the ASIL Executive Council. She's at work now on a book on gender, masculinities, and transitional justice, co-authored with IntLawGrrls Dina Francesca Haynes and Naomi Cahn.
Fionnuala's many awards include a Fulbright scholarship, the Alon Prize, the Robert Schumann Scholarship, a European Commission award, and the Lawlor fellowship.
The Irish government twice has nominated her to the European Court of Human Rights. Fionnuala served as a member of the Irish Human Rights Commission by appointment of the Minister of Justice, from 2000 to 2005. She remains an elected member of the Executive Committee for the Belfast-based Committee on the Administration of Justice, and is also a member of the Irish Council for Civil Liberties.
She's just been invited to serve on the U.N. Roster of Experts for the Crisis Communications Unit, having already taken part: in a 2008 Expert Seminar organized by the Working Group "Protecting human rights while countering terrorism" of the United Nations Counter-Terrorism Implementation Task Force; in 2003 as U.N. Special Expert on promoting gender equality in times of conflict and peace-making; and from 1996 to 1997 as a representative of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia at domestic war crimes trials in Bosnia.
Fionnuala dedicates her post to the woman who was IntLawGrrls' 1st transnational foremother, whose anglicized name is Grace O'Malley (a favorite not only of yours truly, but also of IntLawGrrls guest/alumna Gráinne de Búrca). (credit for photo of statue of O'Malley on grounds of Westport House, County Mayo, Ireland) Referring to Grace by her Irish name, Fionnuala writes that

Gráinne Ní Mháille (c. 1530 – c. 1603), also known as Granuaile, was an important figure in Irish folklore and a historical figure in 16th century Irish History. While primarily viewed as a romantic and complex female pirate figure she represents for me a figure of feminist agency in a highly patriarchial society with much vigor and uniqueness in her tapestry of her life's story and choices.

Heartfelt welcome!

Human rights turn in Chile's courts

(My thanks to the IntLawGrrls for allowing me to contribute this guest post about my most recent article, Judging from a Guilty Conscience: The Chilean Judiciary's Human Rights Turn (Law and Social Inquiry, 2010), with your audience).

I worked as a journalist in Chile from 1991-1994, the first years of the new democracy. At that time, it was considered inconvenient and something of a faux pas to make mention of the human rights legacy of the Pinochet regime (1973-1990), and most Pinochet-era human rights cases were suspended or closed.

Thus, when I returned in 1999 to conduct legal research for The Center for Justice and Accountability, I was amazed to find that news of prosecution of Pinochet-era crimes filled the front pages of all the kiosk papers. Suddenly, and for the first time, judges (such as Judge Guzman, at left, and Judge Valdovinos, at right below) were actively involved in investigating decades-old crimes they had for years ignored. These were the same judges who had denied over 90% of habeas corpus petitions filed during the height of the Pinochet regime’s violence, and who had been instrumental to legitimating the military regime. Since 1999, these very judges have sentenced more former officials of the military regime for human rights violations than judges of any other country in Latin America.

In this article, I seek to explain this dramatic turn. Extensive interviews with the judges revealed that the prosecutorial turn reflects the judiciary’s attempt to atone for its complicity with the dictatorship. The 1998 arrest of General Pinochet in London created pressure for prosecution of Pinochet-era human rights violations; but it is the contest over the judiciary’s legacy, as an important piece of post-authoritarian memory struggles, that explains why Chile’s notoriously illiberal judiciary ceded to that pressure. Understanding this redemptive dynamic is important, for judiciaries often emerge from a repressive regime with no sense of wrongdoing, quick to blame injustices on the executive, the legislature, or circumstances outside their control.

Virtually no professional group emerged from the Nazi era with so good a conscience as that of the jurists,

Ingo Müller writes (1991, 219). My article explains how this judicial consciousness came to change in Chile, with clear implications for the study of transitional justice, the spread of human rights norms, and the study of judicial politics.

In emphasizing the redemptive impetus, I do not deny that civil society, executive leadership and transnational networks of activists played key roles in the judicial turn. Nor do I mean to depict as heroic a judiciary that has been characterized by reticence and conservatism on rights issues. However, by focusing on the perspective of the judges themselves, the article opens a window on a transformation that has been little explored, and which led to important moments of justice.

One judge, for example, described his search for two men who had disappeared in 1973. The men had fled toward Argentina through the Andes. Thirty years later, a team led by the investigating judge retraced their steps, traveling 360 kilometers (224 miles) into the Andes by horseback:

We rode for ten days. . . . Perhaps an older judge would not have been able to do it. I was camping in the mountains, on the border with Argentina in a tent. . . . We worked with the Police. We worked with investigations. Digging everywhere . . . we found nothing. I took along the brother of one of the disappeared men. And that brother, on the last day, when we found nothing, said to me: “Your honor, do not feel badly. I am satisfied . . . after seeing you in front of all these people, working. After seeing you crawling and digging in the weeds, side by side with your assistants, and you were always the first. Now I am at peace with the justice system. If we cannot [find him] it is because it was impossible, not because the effort wasn’t made. And I think that my mother will be at peace now. She may even die on me now.” The mother passed away the following week. (Interviewee 22, March 11, 2004)

It is not normal practice for the judge to join this part of an investigation, to invite along plaintiffs, or to put so many resources into an expedition likely to fail. By doing so, however, the judge seeks to compensate for the judiciary’s past omissions and for its callousness to the victims of the Pinochet-era crimes. The underlying crime could not be solved, but, by the judge’s telling, the injustice that had been committed by the judiciary of not investigating was now undone. The image of the saddle-sore judge on his knees, with a victim as witness, conveys at once an act of penitence and an act of justice.

Transitions not made in Sierra Leone

Those of us who teach in the areas of international criminal law or transitional justice know well the literature that holds Sierra Leone out as something of a success story. (map credit)
Commentators point to the Special Court, established to prosecute a handful of high-level defendants, and to the Truth and Reconciliation Commission that in 2004 both published a 5,000-page record of the 1990s civil war and recommended changes. Articles often make laudatory, albeit vague, references to post-conflict rehabilitation programs. Few, however, mention the record of non-implementation of truth commission recommendations, nor the fact that the country remains destitute.
A series running in the Los Angeles Times is correcting the latter omission. Today's "Forgotten Countries" installment discusses problems in sectors as varied and health care, employment, and politics. Here's an excerpt:

Sierra Leone is one of those nations where decades of foreign aid have failed to appreciably lift the fortunes of the people. The country is a charity case: 60% of its public spending comes from foreign governments and nonprofit organizations. Since 2002, it has received more than $1 billion in aid.
Yet it has the second-highest rate of infant mortality in the world, behind Angola; even Afghanistan ranks lower. The United Nations says 1 in 8 women die giving birth in Sierra Leone; the rate in the United States is 1 in 4,800. Life expectancy in Sierra Leone is 41 years; in Bangladesh it's 60.

Keep an eye out for the series' 2d installment (here, on drug trafficking in Guinea-Bissau).

Bosnia, ICTY & the limits of retributive justice

(My thanks to IntLawGrrls for this opportunity to guest post on the article I recently published in the Journal of International Criminal Justice)

The creation of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in 1993 and 1994, respectively, marked a new normative trend of using international criminal justice as a response to war crimes and human rights violations. Yet there is a dearth of empirical research on the extent to which criminal trials do in fact achieve their ascribed objectives.
My article, The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina, aims both to address this empirical gap in the transitional justice literature and to question whether the confidence and high expectations that such tribunals have generated among their supporters is justified.
Using the ICTY and Bosnia and Hercegovina as case studies, the article examines four particular claims made by the ICTY’s first President, Antonio Cassese. In his "Reflections on International Criminal Justice," 61 Modern Law Review 1, 6 (1998), he contended that criminal trials:
► individualize guilt;
► dissipate calls for revenge;
► establish a historical record; and
► facilitate reconciliation.
The article demonstrates that in the specific case of the ICTY and Bosnia, all except possibly the second of these claims are questionable – in particular, the third and the fourth. The claims are, moreover, unsupported by author’s empirical data. Addressing each of Cassese’s assertions from the least to the most problematic, the article advances two main arguments:
► The first is that while war crimes tribunals have a fundamental role to play in formerly war-torn societies, we should be more realistic about what they can accomplish. High expectations potentially generate deep disappointments, which in turn can undermine the actual achievements of these judicial bodies.
► The second argument is that post-conflict societies, including those in the former Yugoslavia, cannot rely on retributive justice alone to deal with the aftermath of large-scale atrocities. Transitional justice takes many forms and we should not over-rely on criminal trials as a means to achieve justice.
With particular reference to Bosnia, it is suggested that some form of truth and reconciliation commission should be set up to complement the work of the ICTY. Such a commission, in contrast to the ICTY, would be based in Bosnia itself, which would help to create a greater sense of local ownership and interest in the truth-finding process. Its immediacy, moreover, would mean that a truth and reconciliation commission was directly a part of people’s everyday lives, thus making it a potentially significant tool for helping to combat the problem of denial and competing truths -- a problem that remains a fundamental obstacle to reconciliation in Bosnia.
Ultimately, what this article seeks to demonstrate is the importance of questioning commonly made, yet untested, claims about war crimes tribunals, and hence the imperative of further empirical research in this area using different case studies.
The macro-achievements of tribunals like the ICTY -- for example, in terms of their jurisprudence and contribution to the development of international law -- are significant. Examining their successes and failures at the micro-level, however, through a focus on the actual impact they are having on the ground, is crucial for any comprehensive assessment of their work, and hence for a fuller appreciation of both the strengths and the limitations of retributive justice in complex post-conflict societies.

Write On! Impact of transitional justice

(Write On! is an occasional item about notable calls for papers.) The International Journal for Transitional Justice invites submissions for its 2010 special issue.
Entitled “Transitional Justice on Trial: Evaluating its Impact,” the issue's to be guest-edited by Colleen Duggan, Senior Program Specialist with the Evaluation Unit of the International Development Research Centre, Canada.
The call states in part:

The fact of the matter is that transitional justice – often controversial and always laden with political risks – is badly in need of an objective knowledge base that tells the impact story.
[W]e would like to delve more deeply into the impact dilemma currently being faced by those with a stake in the outcomes of transitional justice policies and practices. Just as evidence can be found in multiple and often unexpected places, we encourage the submission of theoretical, practical and policy-oriented papers from a broad spectrum of disciplines: law, sociology, anthropology, psychology, criminology, evaluation research, international relations and economics, among others. We encourage submissions from north and south-based authors. We welcome inputs from academics, from practitioners who have engaged in assessing the impact of their interventions, or other stakeholders who have reflected systematically on these
issues.

Among topics suggested:
► State of knowledge about the effects – either positive or negative – of transitional justice
► Methods of inquiry to be used for evaluating the impact of transitional justice
► Potential pitfalls and promise of specific methods
► Evaluation case studies
► Cross-disciplinary approaches
► Experimental designs
► Challenges of conducting evaluation
► Ethical dilemmas faced by researchers and evaluators
► Relationship (if any) between transitional justice and larger processes for social and political transformation
► Making of transitional justice policy
► Role (if any) of evidence of impact
► Tensions and trade-offs locally, nationally or internationally
► Integration of monitoring and evaluative thinking into transitional justice mechanisms
The deadline for submissions is April 1, 2010. Papers should be submitted online here. More information is available from the Managing Editor at ijtj@csvr.org.za.

A Luta Continua! The struggle for gender justice in East Timor 10 years after the independence ballot

(My thanks to IntLawGrrls for the opportunity to contribution this guest post)

One of the bravest but least known acts during the East Timorese resistance to Indonesian occupation occurred in November 1998, when over 20 Timorese women told their stories of surviving sexual violence to crowds of hundreds at a public meeting in Dili. The stories were collated into a 1999 book called Buibere, which means ‘woman’ in Mumbai, the second most common Timorese language after Tetum. It was written only in English, published in Australia, and intended as an advocacy document for the international community. The persecution, as described first-hand in these collected testimonies, was intense, and included rape, torture and other inhumane acts.
Today marks the tenth anniversary of the popular consultation held in Indonesian-occupied East Timor on 30 August 1999. On 4 September 1999, it was announced that 78.5% of the population had voted against East Timor remaining as part of Indonesia, despite intimidation and full knowledge of the likely reprisal. Independence was granted to the territory after 25 years of brutal invasion. The announcement of the ballot result on 4 September 1999 resulted in immediate acts of violence, a scorched earth policy, looting, massive evacuations, and forced deportation of the population. In the months surrounding the 1999 vote, pro-Jakarta militias killed an estimated 1,400 people, burned towns to the ground, destroyed 80% of the territory's infrastructure, and forced or led more than a quarter of a million villagers into Indonesian-ruled West Timor.
In November 2001, in an independent East Timor controlled by a UN mission, the local women’s rights nongovernmental organization, FOKUPERS, released a second version of Buibere, in Tetum, at a public event, with many of the women who contributed stories to the book present. The second edition is intended to formally respect and honour both the contribution of East Timorese women to independence and the high price they paid during the Indonesian occupation.
Some of the problems that continue to face the women of East Timor were graphically outlined by advocate Sister Maria de Lourdes Martins Cruz at the launch:
‘A luta continua!’ she said, and described how the women of East Timor were still second-class citizens in their own land. ‘A luta continua!’ and she described how girls still don’t receive the same educational or employment opportunities as men. ‘A luta continua!’ and she told of domestic violence still rampant, women still serving as slaves in their own homes, women bought and sold like commodities under the tradition of bride price, and men leaders still unwilling to accept East Timorese women as equals. Ovation after ovation shook the hall.
Given the serious nature of the crimes outlined in Buibere, Sister Lourdes’ speech is striking in that in the eyes of those survivors present that day, independence did not necessarily mark the end of violence against women, but rather just a new manifestation of violence and subordination. (credit for 1998 photo by Jude Conway of demonstration in Dili challenging violence against women; the sign says "STOP Murder!")

I contend that Sister Maria was correct in stating that the problems facing Timorese women in the independence period are linked to the problems women faced during the occupation. Recognition and redress under the law for gender-based violence in war is linked to recognition and redress for domestic violence and socio-economic rights in the ‘peace’.
The danger for East Timorese women now is what I term the ‘changing the curtains’ phenomena — that fundamental changes in the sovereignty of the State in the form of independence may mean that the basic conditions of women’s lives, or their potential to claim their legal rights, does not change in any meaningful sense, as described in the call to arms by Sister Lourdes. Despite some important efforts to include women and their experiences in the justice mechanisms established in East Timor since 1999, Timorese women such as Sister Maria may indeed have cause to be disenchanted.
This then raises the crucial question — transitional justice rests on the assumption that there has been a transition from a state of conflict to a state of peace, however uneasy. If women are still experiencing serious levels of domestic violence and economic deprivation, commensurate with their experience of violence during the proclaimed conflict, have they entered a state of transition at all? If we ask the question — transition to what? — then the next logical question is therefore — justice for whom?

(See further: CAVR Final Report Chega!, and Independent women. The story of women’s activism in East Timor, by Irena Cristalis and Catherine Scott.)