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.

Beyond Sexual Violence: Gendered Political Insecurity as a Threat to Peace

Julieta Lemaitre and Kristin Bergtora Sandvik

Based on extensive field research in Colombia, our new article Beyond Sexual Violence in Transitional Justice: Political Insecurity as a Gendered Harm examines political insecurity as a specifically gendered harm that must be addressed in the ongoing Colombian transitional justice process.

In a previous blogpost we described the tragic plight of the women’s rights activist and survivor of sexual violence Angélica Bello. Bello was one of the main proponents of Law 18 June 2014, which sets out to guarantee access to justice for victims of sexual violence. The Law is part of the transitional justice process and seeks to bring Colombian law into harmony with international law regarding sexual violence in the context of the armed conflict. It defines crimes of sexual violence as war crimes and crimes against humanity, and sets out criteria for investigating sexual crimes and protecting survivors analogous to those of the ICC. As the peace negotiations in Havana between the government and the FARC guerrilla continue to make slow but steady progress, the sexual violence agenda increasingly captures the field of harms to women in war.

While recognizing the importance of this law, we nevertheless suggest that it is a problem for the ongoing transitional justice process that there are so few articulations of what other kinds of gendered harms may look like and how they should be effectively addressed. Much of the growing literature on gender in armed conflict and the debates over post-conflict reparations for women focuses on the prevalence and harms of sexual violence. This development has engendered controversial debates concerning the alleged prioritization of sexual violence at the expense of other harms to women, whether this debate sexualizes and infantilizes women, as well as with respect to forms of victimization not captured by feminist frames of reference, such as male rape (This is often framed as a debate between the Halley and MacKinnon schools of thought). In her work on reparations, Ruth Rubio-Marin takes issue with what she sees as an excessive emphasis on sexual violence in transitional justice, embodying both a suggestion that sexual harm is the worst abuse that can happen to women and the entrenchment of a patriarchal ideal of female chastity. Rubio-Marin (2012) argues that the ‘hyper-attention’ to sex now risks doing further harm to women by deviating attention from other non-sexual forms of sex-specific harms, and isolating sexual and gender based violence from broader agendas that confront the multiple gendered forms of harm and injustice.

What are these other gender specific harms? What should transitional justice focus on beyond sexual violence? How can we think of gendered harms in relation to poverty alleviation or of resource redistribution?

In our article, we argue that if civic trust is to be built among all citizens, women’s experience of exclusion from the political through force and intimidation must be included in the narratives of armed conflict, political insecurity and the aftermath of war. Importantly, political insecurity is complex and extends beyond conflict between the state and the guerrillas, and yet the guarantee of security of political activity is a central component of a transition to peace. Arguably, political insecurity will persist as long as there is no effective challenge to the subnational hold of illegal armed actors emerging in the aftermath of war. The insecurity fostered by these actors is gendered, enforcing cultural mandates to confine women to the domestic space. In a transition to the end of armed conflict guerrillas can stop being both a threat for community organizing, and a justification for state repression.

Finally, we also suggest that the complete dismantling of gendered political insecurity will remain a challenge for transitional justice. A just transition to peace for women would require first, the dismantling of the capacity of private powers (at least of organized crime and business interests) to use violence to achieve their economic goals, and it will also require a vigorous promotion of women’s political participation at the grassroots level. More scholarly attention to the gendered aspects of these problems and scenarios is needed as Colombia continues to stumble towards the end of its 5o year old civil war.

Read On! Taking Economic, Social and Cultural Rights Seriously in International Criminal Law

Evelyne Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law, Cambridge Studies in International and Comparative Law, 2015.

At least sincoverpictce Amartya Sen’s economic research, it is well-known that many of ‘those who fall victim to adverse human agency are not injured by proximate violence but as a result of being compelled to live in subhuman conditions’. To address this fact, scholars and practitioners have been debating whether the mechanisms commonly used to address legacies of widespread abuse could engage with economic, social and cultural abuses. Should they be encouraged to do so? And can international law(yers) be of any help in this regard? Continue reading

Write On! Abstracts due TOMORROW (Feb. 28): Occupation, Transitional Justice and Gender Symposium, Ulster University

The Transitional Justice Institute (Ulster University) and the Institute for Research in the Social Sciences (Ulster University) invite proposals for a one-day postgraduate symposium on Occupation, Transitional Justice and Gender to be held on Friday, 8 May 2015.

This symposium seeks to explore the interface between occupation, transitional justice and gender. The starting point for exploration is based in feminist concerns that are broadly focused on issues of power, control and hierarchies. More specifically, feminist theorizing acknowledges that women’s needs during times of occupation, conflict, and/or transition are often ignored, sidelined or essentialised; recent research is also looking into masculinities during these periods. While much research has explored transitional justice and gender, there has been limited research on the relationship and complexities of occupation and gender. Furthermore, there is a dearth of research on how these three concepts intersect, inform and/or impact each other. Some questions to be explored during the symposium may include:

  • What might be the approach in exploring the interface between occupation and transitional justice while utilizing a gendered lens?
  • How does law capture modern instances of occupation that do not fit neatly into the existing legal coding?
  • Can transitional justice mechanisms be employed while there is an occupation and can such mechanisms take the gendered needs of the population into account? ​
  • Can the exceptionality of occupation reveal gender differences unapparent in normal settings and, if so, what are their implications for transitional justice theory and praxis?

We invite papers from postgraduate students (PhD and Masters) who are exploring the above-mentioned questions in any context and any time period; case studies and theoretical papers are also welcomed. We also invite poster proposals to be featured during a special poster session. For paper or poster proposals, please send a title, a 200-word abstract, and a short one-paragraph biography by 28 February 2015 (note the extended date) to Rimona Afana (afana-r@email.ulster.ac.uk) and Stephanie Chaban (chaban-s@email.ulster.ac.uk). Acceptance of abstracts will be notified by 15 March 2015.

All submissions will be eligible for Best Paper and Best Poster awards. Papers will get substantive and thorough feedback from faculty with expertise in gender/transition and/or law of armed conflict. The organizers are exploring the possibility of publication for the best papers. The symposium will feature Professor Christine Chinkin, Professor of International Law at the London School of Economics and Political Science, as the keynote speaker. Gender experts from the Transitional Justice Institute and IRiSS will also participate. Furthermore, there will also be a praxis session involving domestic and international work related to women’s grassroots involvement in transitional justice mechanisms. The full schedule will be announced shortly.

Keynote Speaker: Professor Christine Chinkin, Professor of International Law at the London School of Economics and Political Science

Date: Friday, 8 May 2015, 09:00 – 18:30

Venue: Ulster University, York St campus (Belfast, Northern Ireland)

While there is no registration fee, we regret that we are unable to cover travel and accommodation costs for participants. The symposium is sponsored by the Feminist & Women’s Studies Association (FWSA): http://fwsablog.org.uk/ <http://fwsablog.org.uk/>

Further sponsorship is provided by the Transitional Justice Institute, Ulster University, the Research Graduate School, Ulster University, and the Institute for Research in the Social Sciences, Ulster University.

Go On! Summer School on Transitional Justice, Ulster University (deadline 13 March)

The Transitional Justice Institute (TJI) has announced its 8th annual Summer School on Transitional Justice on the theme of Gendering the Practices of Post-Conflict Resolution: Investigations, Reparations and Communal Repair.

The Summer School will be held from 22-26 June 2015 at the Jordanstown campus of the Ulster University, located on the north shore of Belfast Lough, Northern Ireland. The Summer School is a week-long residential course, consisting of a series of interactive lectures, workshops and roundtable discussions.  It is aimed at both postgraduate students and practitioners working in the field of transitional justice and human rights.

The academic component of the summer school is also complemented by a social programme which provides the opportunity for participants to get to know a little about the local area. A number of social events such as: a murals tour in Belfast, film screenings and a Summer School dinner at Belfast Castle are included in the programme.

A programme outline and application details can be found at http://www.transitionaljustice.ulster.ac.uk/SummerSchool2015.htm.

Increased prospects for Transitional Justice after the political transition in Sri Lanka?

Since the end of the Sri Lankan armed conflict in which the Liberation Tigers of Tamil Eelam (LTTE) were destroyed by the Sri Lankan armed forces in 2009, Sri Lanka was the archetype of a hard case for Transitional Justice. The Sri Lankan government of President Mahinda Rajapaksa adopted a completely intransigent posture by failing to credibly investigate the past. Instead, it set up flawed mechanisms resembling truth commissions in an attempt to ease international pressure on accountability. Unsurprisingly, these commissions largely exonerated the government of any systematic wrongdoing. In addition, the government brutally suppressed dissent, presided over the persecution of the Tamil and Muslim minorities and attacked local human rights activists who cooperated with UN mechanisms.

In this context, human rights campaigners within the country turned to the international community. In 2010, the UN Secretary General mandated a Panel of Experts (POE) to advise him on accountability in Sri Lanka. The Panel looked into allegations of international law levelled against both sides during the final phases of the armed conflict and found credible allegations of a wide range of violations of human rights and humanitarian law by both sides, some of which amounted to war crimes and crimes against humanity. Amid growing calls for further international action, the UN Human Rights Council took the significant step in Mach 2014 of mandating an OHCHR investigation into these violations. Despite these developments, prospects for international justice for human rights abuses and related crimes that took place during the war remained slim. Indeed, China and Russia’s strong support for the Rajapaksa regime appeared to preclude the prospect of a referral by the UN Security Council to the Prosecutor of the ICC. Even at the UN Human Rights Council which mandated the ongoing investigation, there was only limited support for decisive international action on Sri Lanka.

On January 8, against all odds, the Sri Lankan President Mahinda Rajapaksa was unseated by his former Minister of Health Maithipala Sirisena, who managed to rally a wide array of political parties around the defense of rule of law, transparency and democratic values. However, no consensus on post-war justice was found within this broad ad hoc alliance. While there is enthusiastic support for robust international action on accountability within the minority Tamil community which bore the brunt of the war, representatives of the majority Sinhalese community—about 80 percent of the country’s population—are mostly opposed to international trials. This explains why Sirisena—who needed a substantial if not majority share of the Sinhalese vote to secure victory at the presidential elections—vowed to protect all citizens from international tribunals. Nevertheless, during the campaign, the Sirisena camp indicated that issues of accountability for alleged war crimes will be dealt with domestically and hinted vaguely at the need for truth commissions, apologies and forgiveness.

Continue reading

Founder of the Abuelas Identifies Her Grandson

At long last, Estela Carlotto has identified and been acquainted with her grandson.

The founder of the Grandmothers of the Plaza de Mayo, a group dedicated to locating the some 500 children who were either born in captivity or disappeared along with their parents during Argentina’s Dirty War (1976-1983), has been searching for her grandson for thirty-six years, all while watching – and celebrating – as over 100 other grandmothers were reunited with their grandchildren. Last week, the results of a voluntary DNA test confirmed that Ignacio Hurban was born to Carolotto’s daughter, Laura, while she was in captivity in the La Cacha clandestine detention center in the province of Buenos Aires.

Carlotto with her grandson Ignacio (photo credit)

Carlotto with her grandson Ignacio
(photo credit)

As yours truly has written before, children either born in captivity or disappeared along with their parents were often placed with childless families that supported the dictatorship. In addition to the Abuelas‘ efforts to identify these (now adult) children, prosecutors across the country are charging people suspected of stealing babies during the dictatorship. Each discovery of one of these children raises several issues and questions:

►Were the families that raised them complicit in the circumstances of their arrival, or were they innocent third parties? What level of knowledge would be enough for a prosecutor to bring charges?

►Does the grandchild want to be identified? In Carlotto’s case, Ignacio chose to provide his DNA after wondering if he might be one of the grandchildren the Abuelas were working to find, but others in the same situation prefer to retain their privacy.

►What is the scope of the right to an identity; relatedly, what is the scope of the right to the truth?

Thirty years after the dictatorship ended, these and other questions remain. Carlotto will continue fighting on behalf of the Abuelas, saying that “there is still a lot to do.”

Go On! ASIL Transitional Justice event this Thursday in London

The American Society of International Law (ASIL) will be holding a public conference in London this Thursday, June 26th, on Transitional Justice, Rule of Law, and Guarantees of Non-Repetition.

Description: 

To what extent can and should transitional justice engage with the prevention of future violations? In many states emerging from armed conflict or repressive regimes, violence and crime often surge and new forms of human rights violations emerge.

One of the oft-repeated pillars of transitional justice is “guarantees of non-repetition,” yet the scope and limits of the concept remain unclear. Moreover, there are few on-the-ground links or conversations between communities of practice dealing with transitional justice, rule of law reform and structural changes. This workshop considers how continuities of human rights violations, crime and violence and structural reforms should best be dealt with during and post-transition. How do transitional justice initiatives complement, conflict with, ignore or swallow up other rule of law or reform initiatives, or vice versa? What should the balance look like in specific cases?

Panelists:

  • Padraig McAuliffe, University of Liverpool, author of Transitional Justice and Rule of Law Reconstruction;
  • Marcelo Torelly, visiting academic, University of Oxford, former director, Historical Memory, Brazilian Ministry of Justice Amnesty Commission; and
  • Marieke Wierda, Senior Human Rights Officer, Transitional Justice, UN Support Mission in Libya (UNSMIL)

Respondent:

  • Naomi Roht-Arriaza, University of California, Hastings College of Law (and IntLawGrrl!)

This event is cosponsored by the American Society of International Law‘s Transitional Justice and Rule of Law Interest Group, the Transitional Justice Institute, and the Essex Transitional Justice Network.

For more information, visit http://www.asil.org/event/transitional-justice-rule-law-and-guarantees-non-repetition.

OSCE Mission to Bosnia Launches Resources for War Crimes Reporting

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An image the OSCE Mission to Bosnia’s website.

The Organization for Security and Cooperation in Europe (OSCE), which has recently been thrust in the news in light of recent events in Ukraine, has had a productive spring.  The Organization, founded in 1975 out of a conference in Helsinki, is the world’s largest security-oriented intergovernmental organization, with approximately fifteen mission offices.  Almost twenty years after the close of the conflict in the Former Yugoslavia, the OSCE Mission to Bosnia and Herzegovina’s Rule of Law Unit has recently released a report detailing progress the country has made in prosecuting war crimes cases involving sexual violence. In addition, the Mission recently released a groundbreaking interactive war crimes map.

The report, titled “Combating Impunity for Conflict-Related Sexual Violence in Bosnia and Herzegovina: Progress and Challenges,” is  available in both Bosnian and English. It focuses on the prosecution of wartime crimes of sexual violence committed against an estimated 20,000 women, and countless men and boys during the 1992-1995 conflict in the former Yugoslav state.  The report examines the prosecution of wartime sexual violence during the period from 2005 to 2013 and provides a background on international jurisprudence on rape and sexual violence more generally.  It also describes the establishment of certain forms of sexual violence as war crimes, crimes against humanity, and genocide within the Bosnian national legal framework. Moreover, the report details the Bosnian special evidentiary rules governing sexual violence cases and examines the practice in both Bosnia’s high State Court, as well as the regional cantonal courts.  The report also includes several annexes that set forth the number of sexual violence cases charged, as well as a list of completed and ongoing cases involving wartime sexual violence before the Court of Bosnia and Herzegovina.

In addition to serving as a useful research tool, the report will help ensure that the lessons learned by Bosnia in prosecuting crimes of wartime sexual violence will be available to the world in our efforts to stamp out wartime sexual violence everywhere.

Spring also saw the OSCE Mission to Bosnia and Herzegovina releasing an innovative war crimes map, available here.  Also available in both Bosnian and English, the map is an interactive tool containing information on all war crimes cases adjudicated by Bosnian courts since 2003.  The map allows users to search by location of the court, or crime.  The OSCE explains that the tool is targeted at a “wide audience,” including the media, civil society, academia, and the general public.  Christopher Engels, Head of the Rule of Law Unit for the OSCE Mission to Bosnia, recently introduced the mapping project in an interview available here.

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A screenshot of the OSCE Mission to Bosnia’s interactive warcrimes mapping tool.

As tensions continue to rise in Eastern Europe, it is as important to look back as it is to look forward.  National prosecution of war crimes in Bosnia and Herzegovina will continue, but it is important to take a moment to both appreciate and understand the progress made in the prosecution of some of the worst wartimes crimes.

Write On! Call For Papers- Transitional Justice and Civil Society

Minerva Center for Human Rights- Hebrew University of Jerusalem

The Transitional Justice Program

Call for Papers

The 3rd Annual Minerva Jerusalem Conference on Transitional Justice

Transitional Justice and Civil Society
Learning from International Experience

An International Conference
Jerusalem, 25-26 May 2014

Introduction

The Transitional Justice Program at the Hebrew University of Jerusalem’s Minerva Center for Human Rights and Faculty of Law is organizing an international conference that seeks to explore the role of civil society in developing and implementing transitional justice processes, particularly in the context of ongoing conflicts. The conference, the third in the series of Annual Minerva Jerusalem Conferences on Transitional Justice, is scheduled for 25-26 May 2014, in Jerusalem.

Recipients of this call for papers are invited to submit proposals to present a paper at the conference. Authors of selected proposals will be offered full or partial flight and accommodation expenses.
Submission deadline: 31 December 2013

Background

Civil society has a vital, though often under-acknowledged, role in developing transitional justice mechanisms, institutions and concepts. Over the past three decades civil society organizations have set the agenda for transitional justice policies, promoted, supported and developed mechanisms and interventions, acted as advocates and critics of local and international institutions, and helped in developing the theoretical, legal and conceptual framework of transitional justice. From local grassroots organizations like the Mothers of the Plaza de Mayo in Argentina to international networks like the Coalition for the ICC, civil society organizations have been central in struggles for justice, truth and accountability across various contexts, while other civil society groups have been key actors in efforts of reconciliation, inter-community dialogue and conflict-transformation.

Indeed it is impossible to envisage the contemporary landscape of transitional justice without the role of civil society actors. At the same time there has not been sufficient academic reflection on the contribution of civil society to transitional justice, and dialogues between academia and civil society are not common enough.

The Transitional Justice Program at the Hebrew University of Jerusalem’s Minerva Center for Human Rights and Faculty of Law will hold a 2-day international conference on 25-26 May 2014 to explore comparative and theoretical lessons and insights drawn from the experience of civil society actors. The conference will discuss the various goals and methods of civil society actors struggling for transitional justice; their interactions with formal transitional justice mechanisms; their impact, successes and failures; and the practical and ideological dilemmas and challenges they face.

One of the conference’s main goals is to facilitate local learning and discussion in relation to civil society and transitional justice in the Israeli-Palestinian context. The conference therefore seeks to examine in particular the roles that civil society has fulfilled and can fulfill in ongoing conflicts, and possible implementations in the Israeli-Palestinian context of theoretical, historical, and comparative insights about the role of civil society in developing transitional justice mechanisms, institutions and concepts.

Conference topics may include:

· unofficial civil society truth commissions and documentation projects
· the role of civil society in promoting inter-community dialogues and reconciliation
· civil society as litigation actors
· civil society and the work of international criminal tribunals
· civil society and the design, implementation and follow-up of official TJ mechanisms
· the impact of civil society and peace negotiations
· civil society and education reform
· civil society and reparations
· civil society, commemoration and memorialisation
· civil society in ongoing conflicts
· evaluation of existing initiatives in the Israeli-Palestinian context
Submission of Proposals

Researchers interested in addressing questions related to these or related topics are invited to respond to this call for papers with a one- or two-page proposal for an article and presentation, along with a one-page CV. Proposals should be submitted to the Minerva Center for Human Rights via e-mail: mchr@savion.huji.ac.il no later than 31 December 2013

Applicants should receive notification of the committee’s decision by the end of January 2014. Short drafts of 7,000-10,000 words based on the selected proposals will be expected by 1 May 2014.

The Israel Law Review (a Cambridge University Press publication) has expressed interest in publishing selected full-length papers based on conference presentations, subject to its standard review and editing procedures.

Conference Committee

Prof. Barak Medina, Hebrew University of Jerusalem (Chair)
Prof. Tomer Broude, Hebrew University of Jerusalem
Dr. Ron Dudai, Hebrew University of Jerusalem
Adv. Danny Evron, Minerva Center for Human Rights, Hebrew University of Jerusalem
Adv. Hassan Jabareen, Adalah – The Legal Center for Arab Minority Rights in Israel
Prof. Fionnuala Ní Aoláin, University of Minnesota; Transitional Justice Institute, Univ. of Ulster
Prof. Ruti Teitel, New York Law School