Learning About International Justice on the Ground—The Balkans & War Crimes (Part I)

By Belinda Cooper and Jennifer Trahan

Students of international affairs or international law can learn about the field of international justice through textbooks, films, discussions and lectures in the classroom, but an additional depth of understanding comes from traveling to the locations where crimes occurred, observing tribunals adjudicating those crimes, and meeting in the field with court officials, NGOs and victims.

Each year, we lead a group of master’s degree students from NYU’s Center for Global Affairs on a trip to The Hague, Bosnia, and Serbia to learn about war crimes prosecutions and issues surrounding international and transitional justice. We both work in the international justice field, and over the course of years have built up networks of contacts in both The Hague and the Balkans region; we are thus able to introduce students to a broad variety of actors and institutions and thereby expose them very directly to the controversies and pitfalls, as well as successes, of international and transitional justice.

THE HAGUE

While still in New York, we hold a number of class sessions that provide basic background on the wars in the former Yugoslavia and the ways in which judicial systems and societies deal with the aftermath of mass atrocity crimes. But the trip really begins in The Hague, which puts us on the doorstep of international institutions, even in the literal sense: our hotel is next door to the International Criminal Tribunal for the former Yugoslavia (ICTY). That tribunal has been the focus of our Hague visit, but we also bring students to the International Criminal Court (ICC) and on occasion the Special Tribunal for Lebanon.

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International Criminal Tribunal for the former Yugoslavia

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NYU Group at the Peace Palace

To provide some insight into the history of the movement for international justice, we spend some time at Andrew Carnegie’s imposing Peace Palace, the home of the International Court of Justice and the Permanent Court of Arbitration. Whenever possible, we sit in on trials at the ICTY and ICC; in past years, student have had the chance to view the Karadžić and Mladić trials, Haradinaj, Bemba, and others. Sitting barely feet away from accused war criminals and hearing lawyers, judges and witnesses speak brings home the drama—and sometimes the tedium—of international criminal trials.

In addition, we organize substantive meetings with a wide variety of people involved in the courtroom process: these include the various offices of the ICTY (prosecution, defense, judges, outreach, registry) and the ICC, as well as journalists covering the tribunals. Highlights of past years have included ICTY Judge Theodore Meron, ICC Judge Hans-Peter Kaul, Karadžić defense advisor Peter Robinson, SENSE news chief Mirko Klarin, and many others. Sometimes serendipity takes a hand: this year, the chief prosecutor of the ICTY, Serge Brammertz, passed our students as they waited to enter the building and began a conversation with them. At these meetings, students gain insight into the mechanisms of international justice, and profit from speaking directly to people involved every day in the nitty-gritty of preparing and carrying out trials of major war criminals.

The impression they receive is an understandably positive one of successful, if not always perfect, institutions staffed by dedicated, skilled, and often idealistic professionals. But questions about the efficacy of the tribunals on the ground in former Yugoslavia already arise in our discussions about the ICTY’s reception in the region, its outreach program, and its perceived legacy. These concerns increase in immediacy and intensity once we arrive in the region, and they become a central focus of our discussions.   (To read more, see Part II.)

Go On! Geneva Academy new Master of Advanced Studies on Transitional Justice, Human Rights and the Rule of Law (deadline 29 Feb.)

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The Geneva Academy of International Humanitarian Law and Human Rights has launched a new Master of Advanced Studies on Transitional Justice, Human Rights and the Rule of Law (September 2016–August 2017). Based in Geneva, this one-year program combines in-depth theoretical knowledge with ‘real world’ perspectives. The Faculty comprises leading scholars and practitioners working in the area of transitional justice, human rights and the rule of law – including Professor William Schabas, Dr. Rama Mani and Professor Christof Heyns, UN Special Rapporteur extrajudicial, summary or arbitrary executions. The deadline to apply is 29 February (with scholarship request) or 31 March (without).

One of the special features of the program is a concern to link academic teaching and research with practical work and professionalizing activities. The program offers students access to work experience in leading international agencies dedicated to transitional justice, human rights and rule of law concerns. Throughout the year, a transitional justice clinic will be held to serve as a platform for students to share their practical experiences and to facilitate dialogue and critical reflection on specific cases and situations.

The program adopts a highly personalized approach to teaching and academic life by providing individualized guidance and one-to-one counseling for students, namely via personalized academic mentoring, career coaching and the coordination of internships. For more information, visit http://www.master-transitionaljustice.ch.

Casas de la Memoria to Conviction?

From “casas de la memoria” in Guatemala, Peru, and El Salvador to an upcoming international colloquium in Spain entitled “From Past to Future: Memory and the Process of Transition,” the development of collective memory – an enduring and shared memory of events – is taking center stage as one path toward healing the wounds of a tattered national conscience and preventing the recurrence of mass atrocities. But to what extent is collective memory compatible with judicial systems, which tend to be very individual-centered?

An annual online symposium co-hosted by Opinio Juris and NYU Journal of International Law and Politics (JILP) that went live this morning is exploring this very question. The focus of the symposium is The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transnational Justice, my article that was recently published in Volume 47, Number 4, of NYU JILP.

The impetus for this article arises from the challenges I encountered in working with survivors of mass atrocity. The indivisibility of their memory struck me, as did the healing and bonds it generated. As I began to examine the literature on collective memory, I realized that I was not alone in this observation. Scholars from disciplines ranging from sociology to clinical psychology have written about and documented collective memory and its cathartic effects.

My article explores the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.

In this article, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. I believe that the inclusion of collective memory would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and possibly advancing reconciliation.

Today and tomorrow, Opinio Juris will feature comments on my article from four distinguished scholars:

Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University.
Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law (and a fellow IntLawGrrl!Ed.).
Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School.
Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law.

Tomorrow, I will respond to their comments. I welcome you to join the conversation by posting your thoughts here.

Burundi: no business as usual

If ever evidence was needed to show that the transition from conflict to sustainable peace is a long, hard road, recent events in Burundi have demonstrated it.

The announcement on 23 April 2015 by President Nkurunziza that he would run for a third term sparked fierce opposition. Although Burundi’s constitution contains a two term limit, Nkurunziza argues, and the Constitutional Court agreed (albeit reportedly under pressure) that his first term does not count because he was appointed by parliament rather than in a general election. Serious protests then rocked the capital Bujumbura, with increasing reports of violence between government forces and protesters. Such reports would have been worrying in any country, but were particularly concerning in Burundi, a country with a long history of mass violence that has been negotiating a protracted and painful transition to peace since the signing of the Arusha Peace and Reconciliation Agreement in August 2000.

The situation then evolved fast. On Thursday 14 May, an attempted coup d’état took place when the president was in neighbouring Tanzania for an emergency meeting with members of the East African Community. The coup has now been quelled, the President has returned to Burundi, and many of those responsible have been arrested. However, the media black-out that has been forcibly imposed on the country through the burning down of the main media and radio houses remains in place, and the situation remains highly charged.

Yet again, it feels like Burundi has reached a crucial junction. In many respects, the government’s actions and words over the next days and weeks are likely to determine whether or not the country’s trajectory will take it closer to civil war or allow it to continue the painful progression towards greater stability. For the situation to diffuse rather than escalate, a number of things need to happen.

First, President Nkurunziza needs to ensure the fair treatment of those arrested – and already there are concerning reports that this is not the case. While the forcible seizure of power is clearly a breach of national and international law and needs to be treated as such, their actions have to be considered within the broader political context in which they took place. Therefore, the president needs to ensure that any action taken not only respects national and international human rights protections, but also is sensitive to the genuine grievances of protesters and others. Ultimately, the president should accept that he is, in part, responsible.

Second, and related, the issue of President Nkurunziza’s third term in office needs to be addressed. The old adage says that that which does not kill you makes you stronger, and there is a danger that, having weathered this threat, President Nkurunziza will emerge emboldened. However, it would be a huge mistake to overlook the strength of feeling that has been, and still is being, demonstrated, quite literally, on the streets of Bujumbura. Renouncing his intention to stand for a third term would avoid conflict and allow Nkurunziza to ensure a proper democratic transition of power.

Third, while much of the attention over the past days has been on events in the capital, Bujumbura, there is a growing refugee crisis in neighbouring countries. Since 2005, the return and reintegration of those who fled previous violence was a crucial component to the broader reconstruction of the country. Now, once again, the return of those who have fled will be a crucial marker of the government’s legitimacy: indeed, the government can prove its commitment to peace by ensuring that those who have fled into exile are able to return voluntarily and with dignity.

Fourth, and facilitating return, it is vital that the government bring its armed elements under control. Allegedly one of the main causes of flight has been threats from, and human rights abuses committed by, the government’s notorious armed youth wing, the imbonerakure (meaning “those who can see from far”). Its continuing presence is likely not only to increase the refugee crisis, but also to prevent those who have fled from returning.

Fifth, press freedom is crucial. The fact that so little information is available within Burundi is extremely dangerous: the vacuum it leaves is inevitably filled with rumour. And rumours generate instability as people are living in fear and uncertainty. Therefore it is vital that a free press be allowed to function as crucial evidence for – and the function of – democratic space.

Finally, it is clearer than ever that the elections slated for June need to be postponed until there is a environment in which they can viably take place in a free and fair manner. Forging ahead with the mechanisms but not the substance of democracy never works. Although the president might appear to have contained the current crisis (although that remains to be seen), an unfree and unfair election will, at best, simply be a holding exercise. At worst, it could fuel considerably more violence as tensions simmering under the surface re-emerge.

Ultimately, the need for equitable governance to become strongly entrenched within Burundi is vital to its political health moving forward. It is important to remember that although President Nkurunziza’s bid for a third term was clearly the trigger for recent events, tensions have been simmering in Burundi for some time with the ruling regime being accused of becoming increasingly dictatorial. Local and international human rights organisations have been sounding the alarm for years. This misuse of political power is antithetical to dealing with legacies of violence. It leaves the country in a permanent state of suspended animation, always waiting to see if a trigger will lead to the kind of violence and unrest that has been witnessed over the past days. The people of Burundi deserve far more. And it is the responsibility of their government to deliver.

 

 

Go on! Update: University of Essex Human Rights Summer School

The Human Rights Centre at the University of Essex has just announced full and partial scholarships for their cutting edge human rights summer school courses.  Space is limited, so all interested participants are encouraged to apply as soon as possible.

The Human Rights Centre at the University of Essex is offering its five day summer school on Human Rights Research Methods from 29 June to 3 July 2015 with a keynote lecture from pioneering human rights defender, Hina Jilani. This will be followed by a second week (6-7 July) of thematic modules on cutting edge issues in human rights. These include:

  • Human Rights, Big Data and Technology (6-7 July)
  • Economic and Social Dimensions of Transitional Justice (6-7 July)
  • Human Rights and Drug Policy (6-7 July)
  • Autonomy and the Rights of Persons with Disabilities (7 July)

Participants in the thematic modules will be invited to a keynote panel discussion that will include contributions from leading human rights experts: Professors Paul Hunt, Nigel Rodley, Francoise Hampson, Geoff Gilbert, and Dr Ahmed Shaheed.

For a comprehensive learning experience, participants may combine the research methods module with a thematic module (a discounted rate is available).  An international team of experts will deliver teaching sessions, including leading human rights academics and practitioners. These are essential courses for postgraduate students, academics, lawyers, those working in civil society and international organisations, and importantly, those holding positions in government, including diplomats and civil servants.  The thematic modules are run in conjunction with the Essex Transitional Justice Network, the Essex Autonomy Project, and the International Centre on Human Rights & Drug Policy.

Courses will be held in the verdant English countryside at the University of Essex campus in Wivenhoe Park, an hour train ride from central London.

A full course programme, including enrolment details are available here.  Anyone interested in scholarship applications should email hrcsumsc@essex.ac.uk to complete the short application form.

Recent developments in Colombian jurisprudence on conflict-related sexual violence

During her first visit to Colombia last month, UN Special Representative on Sexual Violence in Conflict Zainab Bangura drew attention to the issue of sexual violence in Colombia’s five decade long conflict. She met with government officials, survivors and civil society to discuss the progress made in preventing and responding to sexual violence. The conflict, which has involved left-wing guerrillas, right-wing paramilitaries and state security forces, has taken a heavy toll on the civilian population, in particular women and children. Those who have experienced sexual violence want their crimes acknowledged. Ms Bangura’s message was clear: Colombian authorities must work to end the silence and impunity surrounding these crimes.

This is an important message. Despite their prevalence, sexual violence crimes are rarely prosecuted, and impunity levels remain high. However, several recent decisions—in which courts have stressed the need for accountability—reflect positive developments in the judiciary’s handling of these crimes.

Colombia’s Constitutional Court has played a significant role in giving sexual violence crimes visibility. In January of this year, the Constitutional Court issued Auto (Order) 009, in which it noted “with alarm” the persistence of sexual violence as a serious form of gender discrimination. It urged authorities to not only address these crimes, but to comply with their obligations to prevent and ensure their non-repetition. Importantly, it stressed that all parties to the conflict were responsible for such crimes, and referred over 400 sexual violence cases to the Attorney General’s Office for investigation and prosecution.

The Court also highlighted two underreported issues. It noted that sexual violence against children illegally recruited by armed groups persists, in particular against indigenous children. During her visit, Ms Bangura also referred to this issue as well as to the silence that exists regarding the generations of children born out of rape. Additionally, the Court recognized that women are at times targeted for sexual violence and displaced because of their sexual orientation−an aspect of the conflict often ignored.

This ruling follows the Court’s landmark decision of 2008, Auto 092 on women and displacement, in which it acknowledged that women are among those most affected by displacement and that displaced women are particularly at risk of sexual violence. In that ruling, the Court stressed that sexual violence is “a habitual, extensive, systematic and invisible practice in the context of the Colombian armed conflict”. It called on the Attorney General’s Office to investigate 183 cases attached to the decision. Continue reading

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.