2016 New England Regional Junior Faculty Scholarship Workshop

Conference Announcement: 2016 New England Regional Junior Faculty Scholarship Workshop

New England Law | Boston is pleased to host the New England Regional Junior Faculty Scholarship Workshop on Friday, February 12, 2016.

This year will also feature a dedicated track for papers on international, comparative, and human rights law, co-sponsored by the Center for International Law and Policy at New England Law | Boston.

The workshop will bring together junior law school faculty from around the New England region (and beyond) to present works in progress. The workshop is timed to allow participants to incorporate feedback before the spring article submission cycle, but papers and “ideas in progress” are welcome at any stage of completion. New England Law | Boston will provide a light breakfast and lunch to attendees. There is no fee for attending the workshop, but participants will be responsible for their own travel expenses.

The workshop is open to all non-tenured law faculty, and papers are welcome on any law-related topic. Each participant will be asked to present his or her own paper or project, and to serve as a primary commenter on another attendee’s paper or project. To ensure an atmosphere conducive to lively discussion and constructive feedback, space is limited to twenty participants.

To participate in the workshop, please send an e-mail to Jordy Singer (jsinger@nesl.edu) by Monday, January 18, 2016. In the e-mail, please indicate the title of your paper or work in progress, and include a short abstract. Any questions about the conference can be directed to Jordy Singer or Lisa Laplante (llaplante@nesl.edu).

The workshop will alternate every year in collaboration with the faculty at Albany Law School.



Memory Battles and National Human Rights Trials

I teach transitional justice at New England Law | Boston, and this past week I began the unit on national human rights trials. This topic is one of my favorites due largely to my experience observing national human rights trials like that of former Peruvian President Alberto Fujimori and former Guatemalan leader José Efraín Ríos Montt.
Fujimori is currently serving a twenty-five year sentence in Peru for his role in serious human rights crimes during the 1990s while president; while Ríos Montt has been under house arrest awaiting the resumption of his trial since 2013,  when the Guatemalan Constitutional Court pointed to procedural errors as a reason to annul his conviction for crimes against humanity and genocide for his role in massacres of indigenous communities in 1982-83.

While observing both trials, I was fascinated by the media coverage of these proceedings and how the  local coverage of these historical trials impacted public debates outside of the courtroom.   My own research and writing on this topic seeks to respond to the fact that, generally speaking, we often forget the important role of media in transmitting the content of human rights trials although it can dramatically influence the overall transitional justice process.

In my recent article, “Memory Battles: Guatemala’s Public Debates and the Genocide Trial of José Efraín Ríos Montt“, I conducted a systematic evaluation of news reports and opinion pieces from local news outlets to study the nuances of Guatemala’s debate over whether or not the country had suffered a genocide. What I discovered was a “memory battle” about interpretations of the past war. Based on these findings, I challenge the idea that transitional justice mechanisms will naturally lead to a collective memory that results in a widespread societal condemnation of human rights violations. Instead, I draw from the field of memory studies to debunk the assumption that there is a smooth path towards a national narrative about atrocity. Different societal actors accompany the transitional justice process, actively and purposefully seeking to use judicial and non-judicial justice mechanisms to construct public memories that fit within their own interpretations and political agendas resulting in many contested versions of the past.
This situation presents a paradox for transitional justice advocates: On the one hand, tolerating expression of different interpretations and opinions of the past promotes the ideals of democracy. However, when versions of the past justify or explain away atrocity, they challenge the political project of building a culture of rights and the rule of law. I decided to examine how this paradox plays out when a transitional justice project includes national criminal trials given that most scholarship focuses more directly on the relationship between truth commissions and memory. I found that, up until now, scholars often wrote about memory and trials based on theoretical speculations as opposed to empirical research. This narrow focus can best be explained by the fact that transitional justice evolved as a response to the inability or unwillingness to conduct criminal trials, a trend that has begun to change only in the last decade with a rise in national human rights trials especially in Latin America.

I conclude my article by arguing that a country’s long term interpretation of its past, and its agenda for the future, depends on which camp of memory-makers in a transitional justice setting wins this memory battle. It is my position that a collective memory is the first step towards cultivating its collective consciousness which leads to a conscience that can influence how its members buy into this culture of rights, accountability, equality and other essential attributes to sustainable peace. Importantly, it is often the nature of the memory making process itself, as opposed to a final memory product that predicts the outcome of memory surrounding national human rights trials.

Based on my close study of the media and memory-making in transitional justice settings, I strongly  recommend that any  new  transitional justice project should consciously contemplate the role of memory production in its design and implementation.

Delayed Justice in Guatemala

I arrived this past Monday to Guatemala City with a team of students from the University of Connecticut (law students and an undergraduate) to serve as a monitor with the Open Society Institute’s monitoring project of the criminal trials again Jose Efrain Rios Montt (who ruled Guatemala during 1982 and 1983), and Jose Mauricio Rodriguez Sanchez (Montt’s chief of military intelligence). The project includes an up-to-date blog.

This is the first time a former head of state has been tried in a domestic court for genocide, making it a historical and important precedent in the fight against impunity. The prosecution alleges that Rios Montt and Rodriguez Sanchez were responsible for the deaths of 1,771 Mayan Ixils, the displacement of 29,000 and their subjection to sub-human conditions, their torture, and cruel and inhuman treatment, and the rape and sexual abuse of women, all in violation of Guatemalan and international law.

The defendants are also being charged for Crimes against Humanity, although the Guatemalan Code refers to this charge “crimes against the duties of humanity” (delitos contra los deberes de humanidad) and requires a nexus to a conflict.

The trial opened on March 20th and has included the participation of dozens of fact witnesses and experts offering horrifying detail of the brutal massacres that killed children, women and men, and elderly people in rural villages. The proceedings have cruised along at neck-breaking speed despite the Semana Santa (“Holy Week”) holiday in April and the trial was near ready to conclude last week when suddenly a legal challenge brought it to a full halt.

In summary, Judge Carol Patricia Flores, who presided over the pre-trial stage of the proceedings (which determines whether there is sufficient evidence to proceed to oral hearings) was recused in 2011 after the defense challenged her objectivity due to a conflict of interest. The prosecution filed a procedural challenge of amparo (similar to an injunction) which only last week was confirmed by the Constitutional Court.

In the meantime, while these legal actions were pending, Judge Miguel Angel Galvez (the other judge sitting on the special Tribunal de Alto Riesgo (“High Risk Court”)) charged the defendants in January 2013, and ordered the public hearings to proceed. Last week when the high court reinstated Judge Flores, she unexpectedly declared the public hearings null and void, ordering that the proceedings had to return to the pre-trial stage.

The Attorney General Claudia Paz y Paz declared the ruling “illegal” and vowed to challenge the decision. The civil parties (querrellante adhesivos) representing the various victims also began to file legal actions of amparo to challenge the decision. Over the weekend, the defense, in turn, filed its own challenges on various procedural grounds.

The result is a legal entanglement that has slowed down the justice process. It is dizzying trying to keep track of the various challenges, and legal experts here describe how the use of amparo– originally conceived as a legal mechanism to protect individual rights against governmental abuse of power–have been converted into a legal strategy to delay justice. Yesterday, in a new round of hearings on outstanding amparos brought by the defense, the civil parties contended that there is an “abuse” of this legal procedure.

One risk of this legal strategy to halt the legal proceedings (and the suspension of the oral hearings) is that the Guatemalan Penal Code dictates that if a trial is suspended for ten days it then is automatically nullified and must begin again. The issue is that there would then be no judge to hear a new proceeding, given that Judges Flores and Galvez are the only two judges sitting on the High Risk Court have already heard the case.

Things stand at a critical crossroad where the road forks towards justice or impunity. Stay tuned to for new developments in the coming days.