Volume 3, Issue No. 2
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2018 marked the 20th anniversary of the Rome Statute, the founding treaty of the International Criminal Court (ICC). In 1998, the Rome Statute promised a permanent and independent Court that would put an end to “unimaginable atrocities”. The establishment of the ICC is seen by many scholars as the jewel in the crown of international criminal justice (see Stephen, 2012, p.73). Although it is the subject of much criticism, many would find it difficult to say that the creation of such an institution could even be conceivable in today’s political climate.
No development has symbolised the globalisation of criminal transitional justice more poignantly than the establishment of a permanent International Criminal Court. The ICC has made transitional justice a “routine matter under international law” (Teitel, 2014, pp.64-65). Accountability for gross human rights violations became a top issue on the international political agenda in the 1990s, once the Cold War came to an end. It was the time when its sister-discourse of “good governance” became prevalent too, and a time when liberal states sought to empower themselves as legitimate bearers and enforcers of the idea of anti-impunity. Historically, however, dealing with perpetrators of past gross human rights abuses was a domestic concern of societies seeking to come to terms with past abuses committed during civil war or under authoritarian regimes (see the cases of Brazil, Argentina, Chile, South Africa, Uganda and El Salvador in the 1980s; Sikkink, 2011).
Although legal obligations to prosecute perpetrators of mass atrocities have existed for many years, enshrined in customary international law and international conventions, impunity was rather the norm. For instance, in the 1970s and 1980s, blanket pre-conviction amnesties by governments were common practice in countries such Chile, Peru and El Salvador (Roth-Arriaza, 1996, pp.93-94). Many justice efforts during this time took the form of truth commissions that sought to expose crimes and reconcile communities. In former communist states, the end of the Cold War marked the start of the processes of opening the files of government bureaucracies, especially the secret police (Schiff, 2008, p.30). Regardless of where these crimes occurred and states’ ideological position during the Cold War, transitional justice was considered a domestic issue and did not necessarily include a criminal accountability response. As Karen Engle (2017, pp.15-16) highlights, the human rights movement’s explicit fight against impunity is new; it only started in the 1990s.
It is only after the establishment of the ICTY and ICTR, and subsequent hybrid courts, that we can talk of the institutionalisation of international criminal accountability and the emergence of international criminal justice for mass atrocities as a routine practice. Whether prosecutions for international crimes are pursued through international, mixed or domestic tribunals, criminal accountability is now generally seen as a legally required component of transitional justice. This shift is part of a wider trend in transitional justice that is “more and more normalised and aimed at advancing the ongoing goals of global rule of law” (Teitel, 2014, p.41).
One of the challenges and risks that flow from the globalisation and routinisation of transitional criminal justice is its bureaucratisation. Transitional justice has become a process that is increasingly formulated by technocratic elites, in global, universal terms, which are insufficiently informed by local politics (Teitel, 2014, p. xvii). What this tells us about the current nature of transitional justice remains a question to be further examined since, traditionally, transitional justice has been a politically charged field that emerged out of the needs of victims and their activism. But as transitional justice has become more internationalised, technical, and decontextualised, it has lost touch with the root causes of violence and shifted its focus away from the need to interrogate and change domestic power hierarchies. Considering the importance of this mutation in the nature of transitional justice, we thought it was appropriate to dedicate a Special Issue to this subject.
The issue opens with a foreword signed by Dr Lars Waldorf that critically interrogates the nature of transitional justice as transitional object, and a foreword by Dr Ingrid Roestenburg-Morgan on the future of transitional justice and the role and value of traditional justice mechanisms for the ICC. The issue continues with Domenico Carofiglio’s article analysing the role of transitional justice as a tool that establishes a link between the particular and the universal. Using examples from Nigeria and East-Timor, Carofiglio illustrates how tension between the global and the local appears, and the outcome when either one dominates the justice process. Moving on, Anna Skinner analyses Kenya’s response to the 2007-2008 violence, specifically the success of transitional justice approaches for achieving peace and reconciliation. In doing so, she explores the important role that Kenya’s socio-political context played in the post-election violence, such as Kenya’s history of societal restructuring.
Similarly, Alisha Lakhani analyses the abuse of transitional justice mechanisms in Kenya after the 2007 elections and in Rwanda following the 1994 genocide. From a constructivist perspective, Lakhani argues that transitional justice is a definitional project, which leaves it vulnerable to abuse. Finally, in her article, Salomé Wyns identifies factors contributing to the International Criminal Court’s perceived lack of credibility and assesses how these factors may hinder the successful conviction of perpetrators of mass atrocities. Through an analysis of the violent aftermath of the Kenyan general elections in 2007, Wyns argues that the ICC’s lack of credibility stems from its inherent structural contradictions which seem to limit its prosecutorial independence and impartiality.
The common thread that runs through this issue’s articles is the emphasis on the importance of transitional justice frameworks that go beyond criminal justice responses and put issues related to structural power, truth finding, reparations, and guarantees of non-recurrence on center stage. Whilst there is a growing consensus that states have a responsibility to investigate, prosecute and punish perpetrators of mass atrocities, questions about what meaningful justice is and what transitional justice means today remain open. This issue provides an avenue for young voices to contribute to this ever-important debate.
The Editorial Board
Note: All opinions expressed in this publication represent those of the authors. They do not necessarily reflect the opinions or views of the Responsibility to Protect Student Journal and its team.
Engle, K. 2017. ‘A Genealogy of the Criminal Turn in Human Rights’. In: Karen Engle, Zinaida Miller and Mathias D. Davies, Anti-Impunity and the Human Rights Agenda. Cambridge: Cambridge University Press.
Nesiah, V. 2017. ‘Doing History with Impunity’, In: Karen Engle, Zinaida Miller and Mathias D. Davies, Anti-Impunity and the Human Rights Agenda, Cambridge: Cambridge University Press.
Roth-Arriaza, N. 1996. ‘Combating Impunity: Some Thoughts on the Way Forward’, Law and Contemporary Problems, 59(4), p. 93-94.
Stephen, C. 2012. ‘International Criminal Law: Wielding the Sword of Universal Criminal Justice?’, International and Comparative Law Quarterly, 61(1), p. 73.
Sikkink, K. 2011. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, New York, London: W.W. Norton.
Schiff, B. 2008. Building the International Criminal Court, Cambridge: Cambridge University Press.
Sriram, Ca. 2005. Globalising Justice for Mass Atrocities: A Revolution in Accountability. London and New York: Routledge.
Teitel, R. 2014. Globalising Transitional Justice. New York: Oxford University Press.
Download Volume 3 Issue 2
By Dr Lars Waldorf
“The object is affectionately cuddled as well as excitedly loved and mutilated.”
– D.W. Winnicott (1953, p. 90)
I was once at a “transitional justice” workshop where a scholar took credit for coining the term. The rest of us were happy to let someone else own the conceptual confusion it had caused. That me-not-me moment generated a transitional space in which we debated the meaning of transitional justice: Is it (special) justice for transition or (normal) justice during transition or justice in transition (see Bell 2016)? In the intervening years, transitional justice has been both elusive and illusive.
20 Years Later: The Role and Value of Traditional Justice Mechanisms for the International Criminal Court and for the Future of Transitional Justice
By Dr. Ingrid Roestenburg-Morgan
What is Justice? This is a question that I would like to open up for thought in this special edition of the R2P Student Journal that addresses the topic of traditional justice, mainly in light of the transformative context of transitional justice but equally as important in light of the 20th anniversary of the International Criminal Court’s Rome Statute, both of which have dealt with the concept of justice in varying ways. The International Criminal Court (ICC), for instance, determines that justice means “the ending and preventing of impunity of serious crimes” through prosecution (Article 4, Rome Statute, 1998). This is in line with the Preamble of the Rome Statute and in line with article 53 of the Rome Statute (OTP Policy Paper, 2007, pp. 8-9). In other words, the ICC makes it clear that justice should not be relegated to moral or practical disagreements of the term, but rather to the law which is the Rome Statute. Transitional justice proponents on the other hand see justice as “the full set of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale abuse in order to secure justice, achieve accountability and achieve reconciliation” (Annan, 2004, p. 4). In other words, transitional justice proponents rely on both judicial and non-judicial processes to successfully realise justice needs for post-conflict societies and their citizens (Villaba, 2011).
Not All Pandora’s Boxes Are the Same: If Transitional Justice Is to Be Effective a One-size-fits-all Approach Is Not the Right Choice
By Domenico Carofiglio
This article analyses the role of transitional justice as a tool able to establish a link between the local and global, the national and international, the particular and the universal. By drawing on examples from Nigeria and East-Timor, this article explores the tension between the global and the local, and the resulting outcomes when one excessively overcomes the other. In doing so, the article looks at the effectiveness and relevance of transitional justice by focusing on its relation with the discourses of global politics, arguing that for transitional justice to be effective a one-size-fits-all dimension is to be discarded in favour of an application of transitional justice as a legal tool that helps communities to find their own way to come to terms with a tormented past. The imposition of de jure universally-applicable rules does not necessarily bring about de facto effectiveness of such rules; the local realities where these rules apply cannot be ignored. This paper begins by defining transitional justice, globalisation and globalised politics, and it will shed light on what is meant by local needs. Building on the definitions provided, the second section will outline a theoretical framework for the arguments at issue, by focusing the attention on the link between transitional justice and global politics; as will be seen, such a connection is theoretically informed by concepts of globalisation, glocalisation and liberalism. Finally, beyond the traditional examples used in the transitional justice literature, such as those of Rwanda and Uganda, the essay focuses on the cases of Nigeria and East-Timor.
A Critical Discussion of the Success of Past Transitional Justice Approaches in Kenya for Securing Peace and Reconciliation
By Anna Skinner
Kenya's 2007 election results sparked two months of grave violence. This article analyses Kenya’s response to the violence, and specifically the success of transitional justice approaches for achieving peace and reconciliation post 2007-2008. The article explores the important role that Kenya’s socio-political context played in the post-election violence, such as Kenya’s history of societal restructuring, favouring certain ethnic groups, which created the interrelation of ethnicity and politics and fostered ethnic tensions. Transitional justice approaches - including the Truth, Justice and Reconciliation Commission, a Special Tribunal, and eventually, the International Criminal Court's intervention – lacked the support of Kenya’s leaders. This paper argues that, fundamentally, transitional justice efforts were impeded in achieving positive peace by failing to address socio-political symptoms. The article concludes that the inherent and enduring structural violence within institutions, policies and society hinders the ability to achieve lasting peace and reconciliation.
Transitional Justice: A Tool of Elite Manipulation? A Constructivist Analysis of Gross-Abuse in Kenya and Rwanda
By Alisha Lakhani
Since its inception in the 1990s, significant concerns have been raised regarding the implementation of transitional justice and the abuse of its mechanisms. The purpose of this paper is to determine the extent to which the noble ambitions of transitional justice have been co-opted by political elites to serve vested interests. Whilst gross abuse of state institutions and processes is not a new phenomenon, using a constructivist lens unveils the sheer scope of elite manipulation. In this paper, norm theory is used to analyse transitional justice mechanisms in Rwanda following the genocide in 1994, and in Kenya following the outbreak of electoral violence in 2007. The paper addresses the abuse of transitional justice mechanisms through positing a three-tiered narrative which explains how leaders consolidate personal political power as well as party dogma. Firstly, elites create a state-directed version of truth which is later institutionalised as collective memory, and ultimately history. Secondly, all opponents are characterised as the ‘other’ and enemies of state through manipulating these mechanisms. Finally, notions of justice are mobilised to claim ‘liberation’ is under threat to justify elongation of political mandates. This paper demonstrates how elites mobilise transitional justice to serve their own agenda. Fundamentally, this paper reiterates the fact that transitional justice is a definitional project with both causal and constitutive effects, which render it vulnerable to abuse.
The International Criminal Court’s Lack of Credibility: What Consequences for the Process of Convicting Perpetrators of Mass Atrocities?
By Salomé Wyns
February 2018 marked the twentieth anniversary of the Rome Statute which established the International Criminal Court (ICC). The ICC has, since 2002, taken up the daunting challenge of meting out international criminal accountability. As a permanent judicial institution, the ICC seeks to end impunity for the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes and crimes of aggression (UN General Assembly, 1998). Since its implementation sixteen years ago, the ICC has faced a range of criticisms regarding its effectiveness and its alleged bias against African leaders. The purpose of this paper is to identify the factors contributing to the International Criminal Court’s lack of credibility –along the lines of impartiality and independence- and assess how these factors may hinder the process of conviction of perpetrators of mass atrocities. Through an analysis of the case of Kenya (2007-2008), this paper will argue that the ICC’s lack of credibility stems from inherent structural contradictions that limit the Court in its prosecutorial independence and impartiality, rendering it vulnerable to politicisation and manipulation by states, thereby enabling them to justify non-cooperation.