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Although meant to bring legal procedures in line with EU norms, critics say changes would hamstring the fight against corruption.
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This paper seeks to examine the process of transitional justice in Sri Lanka following the end of conflict in 2009, by assessing the implementation of transitional justice mechanisms under United Nations Human Rights Council (UNHRC) Res 30/1. Initially this paper will discuss the concept of ‘guarantees of non-repetition’ in relation to transitional justice and violations of international human rights. It will then analyse the current implementation and workings of the Office on Missing Persons (OMP) in Sri Lanka. The OMP is the first of four mechanisms of transitional justice to be implemented and officially set up by the Government of Sri Lanka in 2018. As the first functioning mechanism of transitional justice under UNHRC Res 30/1, this paper discusses what role the OMP has in constituting or contributing to a guarantee of nonrepetition. Subsequently it can play a role in addressing underlying structural issues and socio-economic rights, under the umbrella of transformative justice. Despite its implementation, the Office on Missing Persons itself will only contribute to a guarantee of non-repetition if it has the implementation and support of all four mechanisms under UNHRC Res 30/1.
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The article is dedicated to the experience of Bosnia and Herzegovina in the field of Transitional Justice providing for the problems, connected with internal displacement, dealing. Possibility and directions of Transitional Justice’s application in Ukraine was augmented in relation to the challenges caused by internally displacement of people, who had previously lived in Crimea and certain territories of Donetsk and Luhansk regions of Ukraine. A list of ways and prospective results of implementation of Transitional Justice elements was defined. The main approaches of Bosnia and Herzegovina strategic planning on the issues of internally displaced persons and Transitional Justice was studied. As a result some opportunities of its application in Ukraine were determined. The role of international community activities in post-conflict period in Bosnia and Herzegovina was investigated. The certain ways, which could support rising of positive and minimizing of negative effects of international actors’ presence in Ukraine, were outlined. Also an attention was paid to the issues of organizing the work of the authorities and building of civil society in these conditions.
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This paper examines the absence of Transitional Justice mechanisms during Spain’s transition from Franco’s dictatorship towards a consolidated democracy, and the attempts to develop those instruments in the last two decades. The essay analyses the evolution from the 1977 Amnesty law and the ‘Pact of Oblivion’, towards the development of certain Transitional Justice mechanisms designed by the Spanish Socialist government through the Law of Historical Memory. The paper examines the social and political factors which have shaped the attitudes of the Spanish society when dealing with the country’s recent past, and explores windows of opportunity for action at a time of political and social change. More than four decades after Franco’s death, the need for memory, truth and reparation is still an unresolved issue which undermines the strength of Spain’s democratic system. The need to develop and implement more comprehensive mechanisms for truth-recovery, acknowledgement and reparation will be highlighted throughout the last section of the paper.
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Transitional justice discourse rarely touches the issue of unrecognized states (regimes de facto), namely those located in the post-Soviet space. Needless to say, the disintegration of the USSR in the early 1990s led to the establishment of numerous ‘new’ states in the Eastern Europe and many bloody conflicts as those between Georgia and Abkhazia, Moldova and Transnistria, or Armenia and Azerbaijan over Nagorno-Karabakh. All of them have their strong geopolitical and legal implications until today. The paper explores the issue of the so-called 'quasi-states' in the post-Soviet area, such as Transnistria (formally the integral part of Moldova), Abkhazia (legally speaking the Georgian territory) and the new de facto regimes within Ukraine (‘Donetsk’ and ‘Luhansk People’s Republics’, based in Donbas) in a context of transitional justice tool-kit. It is argued that post-violence instruments shall go hand-in-hand with the diplomatic or (even) military means in a case of abovementioned examples. Backward-looking justice needs to be strengthened by forward-looking mechanisms, especially by the use of institutional reform paradigm, demobilization and reintegration of the quasi-states. This study is based on a socio-legal methodology and a subsidiary field-research conducted during visits to Ukraine, Moldova (Transnistria) and Georgia (Abkhazia).
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Globally, conflict-related "sexual violence is committed against men more frequently than is often thought" (Sivakumaran 2007). However, this growing attention has not yet translated into sufficient policies or transitional justice instruments for male sexual violence victims. Only very limited research specifically analyzes justice and accountability for male victims of sexual violence. Throughout this restricted body of literature, a heavy emphasize is placed on retributive justice and judicial accountability. Such a narrow focus, however, risks ignoring other potential transitional justice mechanisms which may theoretically offer redress and accountability for male victims. Against this backdrop, this paper proposes to discuss some of the challenges male victims of SGBV face in accessing justice and legal protection. Moreover, the paper argues to consider non- or semijudicial transitional justice mechanisms to provide redress for male victims of sexual violence, and calls for victim-centric empirical research to establish male victims' perspectives with regards to transitional justice.
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The decision of the ICC to declare the case against Saif al-Islam admissible and to consider Libya unable to carry out investigation or prosecution has reignited the debate on the ‘cornerstone’ of the ICC regime: the principle of complementarity. The jurisprudence on admissibility of the ICC as developed in this case may discourage states to endorse their duty to investigate and prosecute international crimes, though criminal prosecutions is an important tool of transitional justice. Instead of taking the case from national jurisdiction, the ICC should encourage states emerging from conflict to pursue their transitional justice process. Therefore, the ICC should demonstrate more flexibility in the conduct of the admissibility test and establish a mechanism of monitoring national proceedings for a certain period of time, at the end of which the decision on the state’s ‘willingness and ability’ will be more credible. Such a monitoring mechanism would reconcile the ICC with its complementarity regime by giving a real opportunity to states to participate in the fight against impunity, to improve the legal standards and human rights, and to hold a transitional justice.
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This article will address the case of Kosovo on human rights violations during the armed conflict and the consequences as well as the future of the country in human rights protection. The Kosovo war was an armed conflict where many people died, many others were lost and some of them are not found yet. Across the country many survivors of the bloody conflicts still don't know what happened to their missing loved ones. In order to have reconciliation and transition, people should be aware that they need to understand what happened in the past, which is often complex. Every society has the right to know the truth about past events, as well as the motives and the circumstances in which crimes can be committed, in order to prevent repetition of such acts in the future. After providing a brief theoretical frame about truth and reconciliation commissions, the author brings some personal hopes for the future of judicial system in Kosovo.
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The revolutionary events that have collectively dubbed ‘the Arab Spring’ in the Middle East had started in December 2010. Even though some turmoil continues in the region, it is a fact that the Arab Spring has paved the way to a transitional justice era – at least – for some of the countries. This piece defends that the Organization of the Islamic Cooperation (OIC), the second-largest public international organization after the United Nations, shall take an active part during the transition period of the Arab Spring countries. It is highlighted that the OIC could implement joint projects in cooperation with some other public international organizations that have experience in implementing democracy, rule of law and human rights programs in some Muslim dominant European countries.
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This paper will try to answer on how transitional justice mechanisms address an issue of rape victims in these two countries. In order to accomplish its aim the paper will be divided in four main parts. First part will be dedicated to the crime of rape during the conflict in Bosnia and Herzegovina. Then, it will proceed with the overview and analysis of transitional justice mechanisms response to the needs of victims of rape. The same pattern will be used for the next two chapters that are related to Rwanda and crime of rape. It would be essential to examine transitional justice mechanisms used to help victims of rape, how those people are integrated into society, how they face trauma, fear, shame and influence of traditionally patriarchal societies and how effective transitional justice in healing their wounds is. Also, this would be a good chance to compare situation in which rape victims are in both countries and to compare used mechanisms. This paper will give an overview and analysis of transitional justice mechanisms used in BiH and Rwanda aiming to show how two different countries are coping with the legacy of recent conflicts and which lessons could be learned.
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The European Union undertakes several transitional justice activities. Most specifically, three areas of activities can be identified: conducting peace-keeping missions, supporting the ICTY in providing justice and funding transitional justice activities. Despite these activities, the EU lacks a comprehensive transitional justice policy, which has detrimental effects on the outcome of these activities. Four recommendations are presented that may reverse these effects.
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Transitional justice is an interesting legal and social concept: to discover the truth, to prosecute and punish responsible perpetrators, to reconcile them with the victims and bring peace within a country, which suffered massive violations of human rights. A lot has been said in the literature regarding transitional justice. Some have pointed out the advantage of transitional justice and some strongly criticised it arguing that it is ―reflective of a legalist tendency within transitional justice to abstract law from its political context. However, I would argue that a gap still persists in transitional justice literature since the place, or rather the role, of refugees has never been explored. Refugees are actually part of the people who suffered the most during the conflict. They had no protection; they had to flee, to build their lives somewhere else and, yet, there is nothing said regarding the role they could play or even should play. I would, therefore, argue that a real transitional system, envisaged to bring the truth, justice, and reconciliation to society does not really exist as long as refugees, citizens of the wounded country, are not taken into consideration.
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This article focuses on the provision of healthcare for children in Bosnia and Herzegovina in the context of the ongoing transitional justice process. First, I argue for the existence of a universal human right to healthcare for children, before turning to transitional justice in Bosnia and Herzegovina and placing the right to healthcare in this societal context. By outlining the existing legislation related to children‘s healthcare and examining its shortcomings, I hope to illustrate how impediments to healthcare for Bosnian children affect the country‘s ability to progress towards the goals of transitional justice, healing being among them. Moreover, I seek to highlight the connections linking a functioning government, children‘s healthcare, the success of transitional justice and Bosnia and Herzegovina‘s future. By underscoring the importance of governmental assurance of children‘s access to the human right to healthcare at a time when Bosnians are coming to terms with a history of rights abuse and war, I wish to demonstrate that provision of this right will ensure that Bosnia and Herzegovina, as a whole, has a healthier future that is focussed on human rights for all.
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The idea that, to reconstruct a peaceful and stable basis for a society that went through massive violations of human rights, it is necessary to use a form of justice designed to face the past, which is now widely accepted and promoted. The debate on transitional justice has not dried up and remains more than ever a pertinent question. Nonetheless, no formal work has yet been able to precisely define the meaning of the concept. In the following pages, I argue that, keeping in mind the difficulties encountered when coining a definition, it is necessary to define and identify the objectives of such a concept. I however argue that to keep broadening the scope of transitional justice could be dangerous.
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Transitional Justice (TJ) mechanisms have seen a rise both in number and popularity. The so called ―Justice Cascade is marked by a proliferation of TJ mechanisms worldwide. TJ as a tool to deal with a past of mass human right violations and intends via a number of mechanisms (trials, truth commissions, reparations, amnesties, vetting, etc…) to come to terms with the past, to reconcile society, to bring justice to the victims, to strengthen the rule of law and democracy and to establish accountability. The debate on the intended impacts of TJ however has been conducted largely on a theoretical basis or on the grounds of qualitative research. Only lately there have been a number of quantitative studies on large scale cross country impact assessment of TJ mechanisms. Nevertheless research results are very mixed and do not leave space for clear conclusions. This paper explores the debate on TJ impacts as well as the state-of-the-art of quantitative research and results. Further a number of shortcomings and necessary improvements are highlighted. The study provides an overview of the field of quantitative research in the realm of TJ underlines the importance of qualitative and quantitative impact assessment and provides a short outlook on needed future research.
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The focuses of this analysis are the issues regarding the rules of attribution and the legal consequences, both in the light of the Genocide case. From the transitional justice point of view, the judgment was regrettable in that it left thousands of victims without judicial redress and compensation, and this is unfortunate.
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This essay expounds on the advantages and disadvantages of plea bargaining in war crimes trials, notably in the context of BiH War Crimes Chamber. The ruling about Dušan Fuštar will be taken as a case in point for essentially two merits: first, it illustrates the difference existing between ―charges bargaining and ―sentence bargaining. In so doing, I will illustrate why an agreement on the scope of the sentence should be preferred to one involving dropping charges. Secondly, I will assess the rationale behind the court‘s mitigating of the sentence and thereby will draw some final remarks as to the most apt way to deal with plea agreements in the context relevant to this study.
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15 years have passed since the signing of the 1995 Dayton Peace Agreement which ended the war in the former Yugoslavia. However, the Agreement was not only signed to stop the hostilities, but also to lay down the requirements for a durable peace through, among other things, the process of reconciliation. In order to achieve that goal, different transitional justice mechanisms have been set up. This paper is a short review of the main transitional justice mechanisms put in place in Bosnia, a review that will show the political tensions that are in the background of the process of reconciliation. Thus, the trials, national and international will be analyzed; followed by a description of different truth seeking mechanisms; and finally a quick examination of the vetting process of public officials will be given.
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Based on public demands for rectifying injuries of the past, memory politics recently became the most potent catalyst of social divisions and confrontations, as well as possible limitation of freedom of expression. In addition, facing the past might not yield conciliatory, but rather antagonizing effects, leading toward so-called “memory wars” regarding conflicting past narratives that might jeopardize political stability and aggravate cultural trauma in highly polarized societies, especially if there are powerful mnemonic warriors propelled with foundational and teleological attempts to impose historical “truth”, as the author shows in the first part of the article. In the second part the author focuses on the origin of the politics of memory in Croatia and ongoing “memory wars” regarding displaying and using controversial symbolic expressions, while parts three and four contain a critical analysis of the Dialogue Document provided by the Council for Dealing with the Consequences of Undemocratic Regimes that aimed to deliver comprehensive recommendations for political decision-making and law-framing in an attempt to face the difficult past and socially contested symbolic expressions.
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Prikaz / The review of: dr Tatjana R. Kandić, „Sudska vlast u Republici Srbiji", Institut za uporedno pravo i Dosije studio, Beograd, 2015, 311 str.
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