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All agreed that Global Justice: the Basics expresses key ambitions and values of the Centre. She noted how the law to promote sustainable development has put Wales at the forefront of policy and practice for global justice. The presentations were followed by a lively audience debate and a wine reception for all hosted by the Welsh Centre for International Affairs.
It places Wales firmly in the cause of global justice, and is preparing the new generation of law and politics students to view world problems with a social conscience. Skip to content. Search Search. School of Law and Politics celebrate Cardiff Law and Global Justice research centre 19 December The formal launch of a research centre that focusses on law, justice and globalization took place this November at the School of Law and Politics.
Share this story. Twitter Facebook Linkedin. It is certainly true that neither a judicial sentence nor an apology can ever be commensurate with the horrors of mass violence. But TJ argues that the recognition of this fundamental disproportion should not become an excuse for fatal attitudes. The literature on TJ has evolved a great deal, as has the discipline itself.
Recently, scholars are arguing in favor of broadening the scope of TJ, so as to include social justice, development and economic distribution Mamdani, ; De Greiff and Duthie, The research trend in the TJ field in the future seems to be moving towards evaluating the impact of TJ Van der Merwe et al.
I will successively examine these three types of action, highlighting the promises and limitations of each, before arguing in favor of an extension of the TJ project, both geographically and thematically, in order to make it compatible with the wider project of deliberative democratization. The initiation of TJ is often considered to be the Nuremberg Trials, a model of accountability focusing on individual responsibility that took place in Germany after World War II.
Smaller actors in the Nazi regime, doctors, lawyers and industrialists, also stood trial Earl, The tribunal was the moment of a conceptual break that laid the foundations for TJ that were to be re-discovered in the s. Indeed, the Nuremberg judges clearly defined themselves as the high moral authority, and used the trials to tell a story about the past. A cinema screen was introduced into the courtroom for the first time and the prosecutor Robert Jackson used those images to confront the perpetrators with their deeds, while survivors and victims testified, face to face, in an encounter that was supposed to restore the lost moral order.
The challenge of Nuremberg was clear: the re-founding of a political and moral community through the narration of past horrors Simpson, ; Durkheim, More clearly displayed than in Nuremberg, the tribunals in Tokyo had an American bias: headed by US Army General MacArthur, members of the prosecution team were mostly Americans, but the Americans themselves were never made accountable for the bombing of Tokyo, Hiroshima, or Nagasaki. However, it was not certain at first whether the allies would use the law against their defeated enemies, and the decision to do so should be acknowledged, as it had crucial consequences for TJ.
Stimson was not only a legalist, he also had strong realist arguments to support the legal approach: if Germany were to be punished collectively, he warned, this would only increase resentment and might provoke another war. Conversely, the courts of law would help the country to internalize and individualize its guilt. Prosecutions were believed to have many curative powers: they establish the truth; they educate the public about the nature of past abuses and thereby promote a shared understanding of the past; they help rebuild the rule of law after mass atrocities, demonstrating its universality and continuing authority; and they reinforce moral norms, forging a nationwide moral consensus that the past acts were wrong and unacceptable Hampton, ; Bass, ; Koskenniemi, The overall goal, then, was prevention, not vengeance.
Robert Jackson reflected this view at the opening of one of the trials in , when he famously said:. Despite these clear successes, the model created at Nuremberg disappeared from international practice during the Cold War. The bipolar balance of power made the cosmopolitan impulse behind them useless.
Those institutions largely rely on the retributive model of transition that was created in Nuremberg and Tokyo, and were predicated on the same principles: ending impunity, moralizing international affairs, creating a link between peace and justice. The two ad hoc tribunals were also the result of the convergence of several, more contingent factors, largely due to the end of the Cold War.
The two ad hoc tribunals have had some significant achievements. In total, more than persons have been prosecuted by the ICTY. Both tribunals have contributed to the advancement of international law itself, in particular with regard to the definition of genocide and crimes against humanity, the law of non-armed conflict, and the issue of command responsibility JICJ, ; HRW, Serbian President Slobodan Milosevic was sent to The Hague while still in power, and stood trial before he died in his cell. Those cases established that Heads of State were no longer immune from prosecutions.
Main perpetrators were thus excluded from the political scene, with important consequences for peace and stability Kerr, As in Nuremberg, the trials were also used for larger, more ambitious, purposes: issuing a detailed narrative of past atrocities, documenting the history for future generations, acting as a deterrent for the future, giving victims a voice, strengthening the rule of law, and promoting reconciliation on the ground Stover and Weinstein, ; Teitel, ; Kerr and Mobekk, The ad hoc tribunals have nevertheless been criticized for their inherent limitations.
More specifically, it was argued that the tribunals had little social impact on the ground: perceived as fundamentally biased, they did not have much support among survivors of the conflict Biro, The sense of remoteness, geographical and cultural, was thus heightened, as the tribunals certainly did not do enough to reach out to the affected population Fletcher and Weinstein, ; Des Forges and Longman, Despite those criticisms, one of the main legacies of the ad hoc tribunals has been the creation of a permanent International Criminal Court ICC by the Rome Statute in The ICC has jurisdiction over genocides, crimes against humanity, war crimes and crimes of aggression committed after July 1, , by a member State, or when the UN Security Council so decides Bassiouni, The Statute of the ICC was the result of a difficult compromise, with strong political constraints and the necessity of respecting State sovereignty.
According to the principle of complementarity, the ICC can only act where domestic courts are unable or unwilling to do so: it is only a last resort.
To that extent, the ICC may also be considered an important tool of TJ, giving victims a voice and perhaps helping them recover Stover and Weinstein, According to the UN report on TJ, international criminal justice, indeed, aims at:. Its contribution to capacity-building in the domestic legal system is therefore intrinsically limited. The ICC, however, has recently made progress in terms of outreach and communication strategy. For instance, it was unique in establishing a trust fund to provide compensations and reparations to victims Bekou and Cryer, ; Kerr and Mobekk, The involvement of local actors, and their location within the country where the violence took place, is allegedly better for their contribution to peace and reconciliation Perry, They are also said to leave a positive legacy of respect for the rule of law, train and equip local lawyers, while giving the whole process more legitimacy on the ground.
Access to witnesses and victims is thus made easier Dougherty, These mechanisms are often accompanied with alternative forms of accountability, such as Truth Commissions. The strong and persistent influence of legalism on TJ has made it appear more and more distant from the communities actually affected by conflict.
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Institutionalized, technical and remote, TJ's retributive initiatives too often fail to properly analyze the questions of knowing what TJ is for and whom it serves Nagy, Traditional, or indigenous justice mechanisms have often been referred to as an alternative to the national or international focus of TJ Huyse and Salter, Because it is based on local structures and engages directly with local actors, traditional justice can be more conducive to empowering people and building capacities for both peace and justice Shaw, Indigenous justice is often seen as restorative in nature, but actually often incorporates elements of punishment and reparations too.
The gacaca courts in Rwanda and the mato oput ritual in Northern Uganda are cases in point Longman, ; Baines, However, even those rituals depend on contingent factors such as local power dynamics and their perceived legitimacy Quinn, Initially designed to deal with petty crimes and family disputes, they may not be appropriate for cases of genocide and mass violence Brainswaite, ; Hazan, They can also be patriarchal and oppressive for individuals, particularly women and minorities Arriaza and Roht-Arriaza, ; Valji, The common sense assumption is that the local is good, and the global is necessarily oppressive and colonial.
But just because a mechanism is informal and indigenous does not entail that it has legitimacy for everyone on the ground. The application of traditional justice must therefore be carefully framed so that the rights of the individuals and the fairness of procedures are ensured Kerr and Mobekk, ; Orentlicher, However, as local level initiatives, traditional justice may promote participation and a sense of ownership over the TJ and peacebuilding process, but may also lose much of its value when encouraged and programmed by the State or by international institutions, as is most often the case.
The tendency to institutionalize even traditional justice mechanisms, as was the case in Rwanda and Uganda, is a telling example of the strength of the top-down, statebuilding paradigm upon the practice of TJ. Retributive justice has always been controversial. Technical and substantial concerns have been raised against its efficiency and fairness as an instrument of political transition.
Philosophically, it has been argued that trials rely on a legalist paradigm that is ill-suited to address the social forces and psychological dimensions that characterize mass violence Shklar, Advocates of retributive justice openly place themselves in a consequentialist or utilitarian perspective: they argue that justice must be done not just for the sake of justice, as a Kantian or a moral absolutist would assume, but because it is socially useful too. Trials are therefore given an expressive and educative function Osiel, The French sociologist Emile Durkheim saw them as an essential means of reactivating social solidarity, offering society the occasion to gather in a common rejection of the crime and a reaffirmation of the violated moral values Durkheim, ; Dewey, Punishment is thus supposed to have a pedagogical function for society as a whole Hampton, , a way to reactivate social solidarity Garton Ash, ; Chakravarti, This political instrumentalization of law in retributive TJ is a serious danger for the liberal mind, and Judith Shklar is certainly right to say that the Nuremberg trials were the moment of a serious intellectual crisis for any convinced liberals Shklar, The violation of certain fundamental rules of due process was justified by the good that was expected to come from the trials the reconciliation of the German people, the satisfaction of victims, the moral duty to prosecute, the need to write history, etc.
But for a true liberal, such a reasoning amounts to sacrificing an individual in the name of the collective good Allen, That is something liberals do not accept, especially where the expected good — for instance, the contribution of justice to peace — is difficult to evaluate and uncertain at best. For liberals, law should be free from any moral or political interference. ICTY prosecutor Carla del Ponte reflected this well, especially during the Milosevic trial when she regularly accused Milosevic of using the trial to make political statements — as though she, on the contrary, was not doing so Simpson, International courts have often been criticized for their limitations and inherent weaknesses.
Among those we could name are: their distance from the victims, the disconnection between the people who suffered and the process which addresses their suffering, the cost of trials, their difficulty and delay in prosecuting all perpetrators, their inability to deal with the enabling structural context of mass violence, their adversarial nature and their focus on perpetrators rather than on victims Valji, There is indeed a deep cynicism about the idea of doing justice after war. Kant compared justice after war to the right of the mighty. We have seen how these objections were poignant in the case of the Tokyo Trials.
One of the main concerns for TJ is the issue of retroactivity: trials often hold defendants responsible for acts that were not prohibited at the time of their commission. Nullem crimen, nulla poena sine lege : no crime or punishment without legal prohibition. Such argument relies on a positivist understanding of the rule of law, considering, like H. One cannot therefore justify violating positive law in the name of higher moral obligations, as the prosecutors of Nuremberg and the Hague tried to do: legality and legitimacy are two distinct matters for the positivist mind.
Against this argument, natural law theories argue that the rule of law is more than the simple rule by law, because it has to do with the meaning of Justice itself, as a substantial, moral value. Law is therefore also determined by its purpose Fuller, ; Shapiro, Some actions can be morally legitimate although not strictly legal.
Another legal issue concerns the difficulty in prosecuting all perpetrators, especially in cases like Rwanda and Bosnia where crimes were committed by a large number of persons. But the contingency of this choice raises legal and moral questions. Prosecutions express the belief that only a few individuals are guilty, not entire political or ethnic groups. The individualization of guilt is certainly important for post-conflict reconciliation.
Individual crimes are an essential component of mass violence, and individual accountability is necessary to construct the national narrative without stigmatizing entire groups.
The adversarial nature of retributive justice has also been criticized for its focus on perpetrators, placing the needs of victims second and making truth less easily disclosed. The prosecutions tend to become technical, long and tedious, trivializing the vivid suffering being discussed.
The suffering of victims is therefore not adequately reflected in legalist procedures. Aukerman, Are they not qualitatively different, therefore requiring a fundamentally different response? In response to the flaws of the strictly retributive paradigm, TJ has recently evolved towards a more holistic, comprehensive approach: restorative justice, a normative theory of social repair, focuses less on perpetrators to the benefit of victims, and shifts justice back to the affected communities Braithwaite, ; Kiss, The basic assumptions of restorative justice are the following:.
Crime is not primarily lawbreaking but a conflict among individuals, it is harmful to an individual, but affects the community and the perpetrator too;. Criminal justice should aim more at reconciling the parties and repairing the wrong rather than simply punishing the perpetrator;. The process of justice should engage the participation of the victims, the offenders and their respective communities.
Restorative justice raises existential questions about the identity of the parties. It argues that in the western model of justice the State has stolen the conflict from the victims Christie, The aim of restorative justice is therefore to democratize the social control of punishment, by making its methods more consensual and participatory Dzur, 6. The restorative justice paradigm has first been applied to small scale crimes of juvenile offenders Brainthwait, 7. Its application to mass atrocities in post-conflict situations, mainly through Truth and Reconciliation Commissions hereafter, TRC , is relatively recent Hayner, ; Sriram, ; Villa-Vicencio and Verwoerd, TRCs are a tool of transformative social action, which rest on the assumption that collective remembrance of the past will help prevent the recurrence of violence in the future Du Toit, The goals of TRCs are many and ambitious: to unearth, clarify and acknowledge past violations, to respond to victims' needs, to create a culture of accountability and respect for the rule of law, to outline institutional responsibility and possible reforms, to advance the prospects of reconciliation and reduce historical conflict over the past Hayner, Two kinds of TRCs can be distinguished.
Some, as the South African one, rest on a participatory model, fostering reconciliation by public dialogue and collective acknowledment. Other TRCs are constructed more as educational fact-finding bodies, with the explicit aim of encouraging historical interpretation, and disseminating a new collective memory. TRCs cannot determine culpability for the individual, and cannot punish or sanction perpetrators of human rights abuses.
They have no subpoena power. However, they can make recommendations for broad reform of State institutions based on their findings, and suggest reparation for the victims.