Betsy Brody

Study Grant Application

ÒTransitional Justice: Balancing Peace and Justice in Post-conflict SocietiesÓ

bbrody@ccccd.edu

x. 5005
Transitional Justice: Balancing Peace and Justice in Post-conflict Societies

Proposal and Study Plan

 

                  In the wake of the ÒWar on TerrorÓ and the subsequent transitions to democracy in Iraq and Afghanistan, how can the desire for peace be balanced with the need for justice? History provides too many tragic examples of societies torn apart by ethnic conflict, human rights abuses, or war, while examples of successfully consolidated transitions to democracy after such conflicts are rare. There is a deep need within such societies to come to terms with past abuses and conflict; the field of transitional justice attempts to explore the policy options available for societies coming out of conflict and attempting to pursue both peace and justice. Clearly, in many post-conflict situations, the pursuit of justice (in the form of truth-telling, prosecutions, and imprisonments) would not advance the cause of peace. As a result, institutions and strategies must be adapted to suit the particulars of each post-conflict situation. Should justice and peace be pursued primarily through domestic institutions? What is the role of the international community in facilitating transitional justice? This study grant will allow an exploration of these questions, focusing on case studies of various post-conflict societies and their struggles with issues of justice (accountability, reparations, prosecutions) and issues of peace (truth-telling, reconciliation, amnesty, memorials).

 

Areas of Inquiry

                  In the first phase of the study, I propose to look at strategies for the promotion of justice. The work of tribunals like the International Criminal Tribunal for the Former Yugoslavia, the Iraqi Special Tribunal, and the International Criminal Tribunal for Rwanda will be examined with an eye toward isolating and understanding the strengths and weaknesses of the legal approach to transitional justice. What, if any, are the trade-offs involved in taking the prosecutorial approach to dealing with war crimes, ethnic cleansing, genocide, and other crimes against humanity? In this phase of study, I will look at the founding documents of each of these tribunals as well as transcripts of the proceedings and written opinions that have been issued by the tribunals. My reading list also includes secondary sources on international law, human rights, and transitional justice which will add depth to my study of these particular cases.

                 

In the second phase of the study, I propose to look at strategies that might be considered strategies for the promotion of peace, focusing on Truth and Reconciliation Commissions. As such, I will examine the case studies of the South African Truth and Reconciliation Commission, the Commission on the Truth for El Salvador, the Historical Clarification Commission of Guatemala, and the Peru Truth and Reconciliation Commission among others to consider the potential risks and benefits to taking this approach to transitional justice. The founding documents of the Truth and Reconciliation Commissions will be studied as well as the transcripts of the proceedings and reports issued by the commissions. For each of these cases, the study plan includes secondary texts providing a historical overview of the period of conflict and analysis of the work of Truth and Reconciliation Commissions in general.

                 

In the final phase of the study, the prospect of an international approach to transitional justice will be explored, particularly through a consideration of the proposed International Criminal Court. Does the creation and adoption of the court help or hinder post-conflict societies in their quest to balance peace and justice? This phase of the study plan includes an examination of the Rome Statute of the International Criminal Court as well as articles and texts exploring the debate over the creation and ratification of the court. In this, as in all phases of the study, the role of transitional justice in helping or hindering the transition to democracy will be explored. In post-conflict societies, what strategies for peace and justice are most likely to facilitate smooth transitions to democracy?

 

Rationale

                  In undertaking the proposed plan of study, I hope to accomplish the following goals. First, I plan on furthering my understanding of the concept of transitional justice and the strategies and institutions associated with the pursuit of peace and justice in post-conflict societies by undertaking this study. This is an area of international affairs that I have been interested in for some time, but have not had the opportunity to explore in a systematic way; this study grant would allow me to do so. Secondly, I would like to critically analyze the various transitional justice strategies through the lens of democratic transitions. With U.S. foreign policies advocating transitions to democracy around the world, there is a need to consider the impact of transitional justice strategies on the shift to democracy.

 

Being awarded this study grant would allow me to explore this area of intersection between politics and law at a particularly important time in history; strategies for peace and justice are more than simply academic concerns during a time of war. Not only would the study grant allow me to add to and enrich my knowledge of the subject of transitional justice, but it would certainly impact my teaching and research in political science, particularly in the areas of foreign policy and democratic theory.

 

 

Transitional Justice Study Plan

 

Weeks 1-3

Explore major texts dealing with transitional justice, human rights, and international law to establish a foundation in the basic concepts and conflicts in the literature.


Week 1: Transitional Justice

Kritz, N. (Ed.) (1995). Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Washington: U.S. Institute of Peace Press.
McAdams, A.J.(2001) Transitional Justice and the Rule of Law in New Democracies. Notre Dame, IN: University of Notre Dame Press.
Siegel, R. (1998).Transitional Justice: A Decade of Debate and Experience. Human Rights Quarterly 20: 431-454.


Week 2: Human Rights

Donnelly, J. (2002). Universal Human Rights in Theory and Practice.2nd ed. Ithaca: Cornell University Press.
Garton Ash, T. (1998). The Truth about Dictatorship. New York Review of Books, February 19: 35-40.
Hayner, P.B. (2000). Unspeakable Truths: Confronting State Terror and Atrocity. New York: Routledge.
Roht-Arriaza, N. (Ed.), (1995). Impunity and Human Rights in International Law and Practice. Oxford: Oxford University Press.


Week 3: Accountability

Bassiouni, M. & M. (Eds.), Accountability for International Crimes and Serious Violations of Fundamental Human Rights. Law and Contemporary Problems 59.
Huyse, L.(1995). "Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past." Law & Social Inquiry 20: 51-78.
Minow, M. (1998). Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Boston: Beacon Press.
Mendez, J.E. (1997). Accountability for Past Abuses. Human Rights Quarterly 19: 255-282.
Ratner, S.R. & Abrams, J.S.(1997). Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy. Oxford and New York: Oxford University Press.


Weeks 4-5

Explore strategies for the promotion of justice by reading the founding documents, transcripts, and reports of the International Criminal Tribunal for the Former Yugoslavia, the Iraqi Special Tribunal, and the International Criminal Tribunal for Rwanda. Also explore texts dealing with the work of the tribunals.


Week 4: Tribunals and Justice (Former Yugoslavia and Iraq)

Bass, G.J. (2000). Stay the hand of vengeance: the politics of war crimes tribunals. Princeton, N.J.: Princeton University Press.
Morris, M.H., (Ed.), (1997). Symposium: Justice in Cataclysm: Criminal Trials in the Wake of Mass Violence. Duke Journal of Comparative and International Law 7.
International Tribunal for the Former Yugoslavia. Retrieved April 10, 2006 from http://www.un.org/icty/
Iraqi Special Tribunal. Retrieved April 10, 2006 from http://www.iraq-ist.org/en/home.htm


Week 5: Tribunals and Justice (Rwanda)

Seeking International Justice: The Role of Institutions. (1992). Journal of International Affairs 52.
Weschler, L.(1998). A Miracle, A Universe: Settling Accounts with Torturers. Chicago: University of Chicago Press, 1998.
International Criminal Tribunal for Rwanda. Retrieved April 10, 2006 from  http://65.18.216.88/default.htm


Week 6-8

Explore strategies for peace, particularly focusing on the work of Truth Commissions. Read the founding documents of Truth and Reconciliation commissions in South Africa, El Salvador, Guatemala, and Peru.


Week 6: Truth Commissions

Boraine, A. & Levy, J. (Eds.), (1995). The Healing of a Nation? Cape Town: Justice in Transition.
Hayner, P.B. (1994). Fifteen Truth Commissions — 1974 to 1994: A Comparative Study. Human Rights Quarterly 16: 597-655.
Commissioning the Truth: Further Research Questions. (1996). Third World Quarterly 17: 19-29.
International Guidelines for the Creation and Operation of Truth Commissions: A Preliminary Proposal. (1997). Law and Contemporary Problems: 173-180.


Week 7: South Africa and Guatemala

Guatemala: Memory of Silence :Report of the Commission for Historical Clarification. 1999.
Asmal, K. Asmal, L. & Roberts, R.S.(1996). Reconciliation through Truth. Cape Town: David Philip Publishers.
Garton Ash, T. (1997). True Confessions. New York Review of Books, July 17: 33-38.
Krog, A. (1999). Country of My Skull: Guilt, Sorrow, and the Limits of Forgiveness in the New South Africa. New York: Times Books.
Tutu, D. (1999). No Future Without Forgiveness. New York: Doubleday.
Villa-Vicencio, C. & Verwoerd, W. (2000). Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa. Cape Town: University of Cape Town Press.
Truth and Reconciliation Commission of South Africa Report. (1999). New York: Grove's Dictionaries.

 

Week 8: El Salvador and Peru

Buergenthal, T. (1994). "The United Nations Truth Commission for El Salvador." Vanderbilt Journal of Transnational Law 27: 497-544.
Cassel, D.W., Jr. (1993). International Truth Commissions and Justice.The Aspen Institute Quarterly 5: 77-90.
Popkin, M. & Roht-Arriaza, N. (1995). "Truth as Justice: Investigatory Commissions in Latin America." Law and Social Inquiry: The Journal of the American Bar Foundation 20: 79-116.
From Madness to Hope: The 12-Year War in El Salvador: Report of the Commission on the Truth for El Salvador. (1993). United Nations: UN Doc. S/25500/Annex.
Comision de la Verdad y Reconciliation: Peru. Retrieved April 10, 2006 from http://www.cverdad.org.pe/ingles/pagina01.php


Week 9

Explore international strategies for transitional justice including the establishment of the International Criminal Court. Consider the impact of strategies for transitional justice on transitions to democracy.

Broomhall, B. (2003). International Justice and the International Criminal Court : Between Sovereignty and the Rule of Law. Oxford University Press.
Zalaquett, J. (1992). Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations. Hastings Law Journal 43: 1425-1438.
International Criminal Court. Retrieved April 10, 2006 from http://www.icc-cpi.int/home.html
Rome Statute. Retrieved April 10, 2006 from http://www.un.org/law/icc/

 

Transitional Justice Reading List

 

Asmal, K. Asmal, L. & Roberts, R.S.(1996). Reconciliation through Truth. Cape Town:  David Philip Publishers.

Bass, G.J. (2000). Stay the hand of vengeance: the politics of war crimes tribunals. Princeton, N.J.: Princeton University Press.

Bassiouni, M. & M. (Eds.), Accountability for International Crimes and Serious Violations of Fundamental Human Rights. Law and Contemporary Problems 59.

Boraine, A. & Levy, J. (Eds.), (1995). The Healing of a Nation? Cape Town: Justice in Transition.

Broomhall, B. (2003). International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford University Press.

Buergenthal, T. (1994). "The United Nations Truth Commission for El Salvador." Vanderbilt Journal of Transnational Law 27: 497-544.

Cassel, D.W., Jr. (1993). International Truth Commissions and Justice.The Aspen Institute Quarterly 5: 77-90.

Comision de la Verdad y Reconciliation: Peru. Retrieved April 10, 2006 from http://www.cverdad.org.pe/ingles/pagina01.php

Commissioning the Truth: Further Research Questions. (1996). Third World Quarterly 17: 19-29.

Donnelly, J. (2002). Universal Human Rights in Theory and Practice.2nd ed. Ithaca: Cornell University Press.

From Madness to Hope: The 12-Year War in El Salvador: Report of the Commission on the Truth for El Salvador. (1993). United Nations: UN Doc. S/25500/Annex.

Garton Ash, T. (1998). The Truth about Dictatorship. New York Review of Books, February 19: 35-40.

Garton Ash, T. (1997). True Confessions. New York Review of Books, July 17: 33-38.

Guatemala: Memory of Silence :Report of the Commission for Historical Clarification. 1999.

Hayner, P.B. (2000). Unspeakable Truths: Confronting State Terror and Atrocity. New York: Routledge.

Hayner, P.B. (1994). Fifteen Truth Commissions — 1974 to 1994: A Comparative Study. Human Rights Quarterly 16: 597-655.

Huyse, L.(1995). "Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past." Law & Social Inquiry 20: 51-78.

International Criminal Court. Retrieved April 10, 2006 from http://www.icc-cpi.int/home.html

International Criminal Tribunal for Rwanda. Retrieved April 10, 2006 from  http://65.18.216.88/default.htm

International Guidelines for the Creation and Operation of Truth Commissions: A Preliminary Proposal. (1997). Law and Contemporary Problems: 173-180.

International Tribunal for the Former Yugoslavia. Retrieved April 10, 2006 from http://www.un.org/icty/

Iraqi Special Tribunal. Retrieved April 10, 2006 from http://www.iraq-ist.org/en/home.htm

Kritz, N. (Ed.) (1995). Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Washington: U.S. Institute of Peace Press.

Krog, A. (1999). Country of My Skull: Guilt, Sorrow, and the Limits of Forgiveness in the New South Africa. New York: Times Books.

McAdams, A.J.(2001) Transitional Justice and the Rule of Law in New Democracies. Notre Dame, IN: University of Notre Dame Press.

Mendez, J.E. (1997). Accountability for Past Abuses. Human Rights Quarterly 19: 255-282.

Minow, M. (1998). Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Boston: Beacon Press.

Morris, M.H., (Ed.), (1997). Symposium: Justice in Cataclysm: Criminal Trials in the Wake of Mass Violence. Duke Journal of Comparative and International Law 7.

Popkin, M. & Roht-Arriaza, N. (1995). "Truth as Justice: Investigatory Commissions in Latin America." Law and Social Inquiry: The Journal of the American Bar Foundation 20: 79-116.

Ratner, S.R. & Abrams, J.S.(1997). Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy. Oxford and New York: Oxford University Press.

Roht-Arriaza, N. (Ed.), (1995). Impunity and Human Rights in International Law and Practice. Oxford: Oxford University Press.

Rome Statute. Retrieved April 10, 2006 from http://www.un.org/law/icc/

Seeking International Justice: The Role of Institutions. (1992). Journal of International Affairs 52.

Siegel, R. (1998).Transitional Justice: A Decade of Debate and Experience. Human Rights Quarterly 20: 431-454.

Truth and Reconciliation Commission of South Africa Report. (1999). New York: Grove's Dictionaries.

Tutu, D. (1999). No Future Without Forgiveness. New York: Doubleday.

Villa-Vicencio, C. & Verwoerd, W. (2000). Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa. Cape Town: University of Cape Town Press.

Weschler, L.(1998). A Miracle, A Universe: Settling Accounts with Torturers. Chicago: University of Chicago Press, 1998.

Zalaquett, J. (1992). Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations. Hastings Law Journal 43: 1425-1438.