Introduction to TJ Flashcards
what premise is TJ based on?
premise that not addressing past atrocities will fuel future conflicts
TJ definition by UN
range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses to ensure accountability, justice and achieve reconciliation
4 key groups of actors in TJ
1) Intl community (UN, EU, AFrican Union)
2) National stakeholders (civil society, justice sector, traditional leaders, women, youth, minorities, IDPs, refugees)
3) International and regional HR bodies
4) Experts (not just lawyers, increasingly interdisciplinary approach to TJ)
3 bodies of law within which TJ operates
1) IHRL
2) IHL
3) ICL
IHRL concerns
obligations of states (and arguably non-state actors) to prevent, protect and fulfil HRs
IHRL key instruments (universal and regional)
ICCPR, CEDAW, CRC, ECHR
IHRL Key universal and regional HR bodies
Human Rights Committee; Human Rights Council; ECtHR; ACtHR
IHL applicable in
international and non-international armed conflict –> regulates the conduct of hostilities and protects victims of war
IHL imposes what sort of obligations to those in conflict
equal obligations to all parties to conflict (States and armed groups)
IHL laws
4 Geneva Conventions of 1949 + their Additional Protocols, customary IHL
ICL imposes
criminal responsibility of individuals for serious violations of HRL or IHL
What are the different justice aims that TJ tools can encompass?
1) retributive
2) restorative
3) reparative
4) social and transformative
Retributive justice
- prosecutions –> individual accountability thru crim trial and punishment
- individualises guilt + aims to deter potential violators
- encourages ROL
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Restorative justice
aims on repairing harm suffered by individual (not punishment)
- active involvement of victims/offenders/community
Criticism of restorative justice
not a real alt to crim punishment where serious + may pressure victims to pursue national reconciliation
Reparative Justice
victim centred, empowerment of victims
forms of reparative justice
restitution, compensation, satisfaction, rehab, guarantees of non-repetition
Social and Transformative Justice
social: ESC rights, addressing root causes of inequalities, corruption, structural violence
Tranformative: more radical, statebased processes to community based responses - focus on economic development
Critique of social and transformative justice
little evidence of effectiveness, very broad scope
TJ processes should be:
- Context-specific
- Nationally-owned
- Inclusive
- Victim-centered
- Gender-sensitive
- Participative and empowering
- Transformative for the whole society
how does retributive justice pursue individual accountability?
criminal trial and punishment
elements of retributive justice
- Pursues individual accountability, through criminal trial and punishment
- Based on society’s condemnation of the act and of the perpetrator
- Concerns the individualization of guilt
- Aims to pursue deterrence of potential violators of the law for fear of punishment
criticism of retributive justice
- not appropriate for dealing with collective violence, selective prosecutions
- Limited role of victims, and limited scope of offences (primarily crimes against bodily integrity)
