UNIVERSITY OF EDINBURGH SCHOOL OF SOCIAL AND POLITICAL SCIENCE. Transitional Justice in Context PGSP11383

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1 UNIVERSITY OF EDINBURGH SCHOOL OF SOCIAL AND POLITICAL SCIENCE Transitional Justice in Context PGSP11383 Course Organiser: Dr Gerhard Anders Centre of African Studies 2nd Semester

2 Transitional Justice in Context Course Organiser: Dr Gerhard Anders, CMB 4.06 Feedback and guidance hours: Tuesday 10-11am, 14-15pm. Administration For administrative assistance please contact the course secretary at Graduate School Office, room 1.20, Chrystal Macmillan Building, Day, Time, Venue Semester 2, Monday Lecture: 2:10-3pm, 1.3, Lister, Lister Learning and Teaching Centre, Roxburgh Place. Tutorial 1: 3:10-4pm or Tutorial 2: 4:10-5pm, 1.3 Lister, Lister Learning and Teaching Centre. Course Description Since the 1990s, transitional justice has become a central element in efforts to come to terms with a violent past in a number of countries. Especially in sub-saharan Africa there have been experiments with a variety of different transitional justice mechanisms including truth commissions, international criminal tribunals and localized institutions supposedly more in tune with African culture and values. This course examines the whole range of transitional justice mechanisms from a social-scientific perspective, exploring crucial issues such as their actual functioning and local legitimacy. The course addresses the key debates that have shaped the field of transitional justice. For a long time the field has been defined by the truth versus justice debate, whether truth commissions or criminal trials are the best means to realize closure and reconciliation, and the peace versus justice debate, whether criminal trial jeopardize the fragile peace and negotiations during a transition period. Recently, these discussions have been partly eclipsed by efforts to localize transitional justice, creating institutions more in tune with local values and culture. This course has three aims: (1) to provide students with a critical understanding of key theoretical, conceptual and policy debates related to transitional justice, (2) to examine how these debates shape developmental and humanitarian interventions, and (3) to discuss the actual functioning of these institutions in their socio-cultural and political context. The course adopts an inter-disciplinary perspective drawing on legal studies, political science, social and cultural anthropology and African Studies. Teaching will make use of case studies of transitional justice in Latin America, South Africa, West Africa, Uganda and Rwanda. Learning Outcomes - show knowledge of academic and policy debates about transitional justice in context in relation to humanitarian and development interventions. - critically understand the theories, concepts and the practice of the whole range of transitional justice mechanisms aimed at realizing new beginnings after widespread violence and oppression. - show detailed knowledge of case studies examining specific transitional justice mechanisms in Africa and elsewhere. - critically evaluate and analyse the empirical evidence on the operation of truth commissions, criminal trials and other forms of transitional justice. - critically understand the challenges and realities of work in the field of international development, legal reform and humanitarian assistance. 2

3 Organisation The course runs for 10 weeks (2 hours per week). A weekly lecture (1 hour) is followed by a seminar with student group presentations and discussion. Topic Overview Week 1: The history of transitional justice Week 2: The key debates: Truth v. justice and peace v. justice Week 3: Truth-telling and national reconciliation Week 4: International criminal justice Week 5: Localizing transitional justice Week 6: Flexible learning week Week 7: International criminal justice and reconciliation in Bosnia and Herzegovina (with Dr Aitchison, School of Law, University of Edinburgh) Week 8: The legacy of racism: South Africa Week 9: Transitional justice in Burundi and Rwanda: Contrasting experiences of false twins (with Dr Jamar, School of Law, University of Edinburgh) Week 10: The bitterness of war: Sierra Leone and Liberia Week 11: Contesting justice and reconciliation: The peace process in Colombia Assessment The course is assessed by the following: 20% of the course grade will be awarded for a 1,000-word short essay, to be submitted electronically at noon, Thursday 15 th February % for a 3,000-word long essay on a topic related to the course theme, to be submitted electronically at noon, Thursday 29 th March Feedback for coursework will be returned online via ELMA on 08/03/18 (short essay) and 19/04/18 (long essay). For Assessment requirements you should consult the Taught MSc Student Handbook This is available on Learn. Requirements included are: Coursework submissions Extension request Penalties External Examiner The External Examiner for the course is Dr Tom Goodfellow, University of Sheffield. Reading list, resources The reading list includes: - required reading, which students are expected to have read prior to each seminar - recommended further reading for additional background, presentations and essay preparation 3

4 WEEK 1 (15 January): THE HISTORY OF TRANSITIONAL JUSTICE How should we deal with the abuses and atrocities of past regimes? Should we seek to hold people to account or forgive in the name of reconciliation? What is the relationship between truth and justice? In the last thirty years a specific set of institutions have become associated with what has become known as transitional justice, with truth and reconciliation commissions and criminal tribunals at the fore. This lecture presents an overview over the history of transitional justice and the problem of effecting a new beginning eschewing violence. Arthur, P How Transitions Reshaped Human Rights: A Conceptual History of Transitional Justice, Human Rights Quarterly 31(2): Leebaw, B.A The Irreconcilable Goals of Transitional Justice, Human Rights Quarterly 30(1): Anders, G. and O. Zenker, eds Special Issue: Transition and Justice: Negotiating the Terms of New Beginnings in Africa, Development and Change 45(3). Buckley-Zistel, S. T.K. Beck, C. Braun and F. Mieth, eds Transitional Justice Theories. Abingdon: Routledge. De Greiff, P. and R. Duthie, eds Transitional Justice and Development: Making Connections. New York: Social Science Research Council. Mani, R., ed Special Issue: Transitional Justice and Development International Journal of Transitional Justice 2(3). Payne, L Unsettling Accounts: Neither Truth nor Reconciliation in Confessions of State Violence. Durham, NC: Duke University Press. Teitel, R Transitional Justice. Oxford: Oxford University Press. WEEK 2 (22 January): THE KEY DEBATES Two important debates have been shaping the field. The truth versus justice debate, whether truth commissions or criminal trials are the best means to realize closure and reconciliation, and the peace versus justice debate, whether criminal trial jeopardize the fragile peace and negotiations during a transition period. Pankhurst, D Issues of Justice and Reconciliation in Complex Political Emergencies: Conceptualising Reconciliation, Justice and Peace, Third World Quarterly 20(1): Teitel, R Transitional Justice Genealogy, Harvard Human Rights Journal 16: Fletcher, L. and H. Weinstein 2002 Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, Human Rights Quarterly 243: Gutman, A. and D. Thompson 2000 The Moral Foundations of Truth Commissions, in R.I. Rotberg and D. Thompson, eds. Truth versus Justice: The Morality of Truth Commissions. Princeton, NJ: Princeton University Press, pp Kritz, N., ed Transitional Justice: How Emerging Democracies Reckon with Former Regimes (3 vols.) Washington, DC: United States Institute of Peace. Minow, M Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston, MA: Beacon Press. Olsen, T., L.A. Payne and A. G. Reiter 2010 Transitional Justice in Balance: Comparing Processes, Weighing Efficacy Washington, DC: United States Institute of Peace Press. 4

5 Orentlicher, D Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, Yale Law Journal 100: Roht-Arriaza, N. and J. Mariezcurrena, eds Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice. Cambridge: Cambridge University Press. Sriram, C.L. and S. Pillay, eds Peace versus Justice? The Dilemma of Transitional Justice in Africa. Scottsville: University of KwaZulu-Natal Press. WEEK 3 (29 January): TRUTH-TELLING AND NATIONAL RECONCILIATION Truth commissions have been established to serve as alternative, quasi-juridical alternatives to amnesty for perpetrators of crimes, on the one hand, and criminal trials, on the other hand. The have the task to establish accountability and national reconciliation by producing an authoritative historical record of crimes and human rights violations. This week examines the model and its dissemination, the ideas that have been driving the set-up, mandate and work of transitional justice institutions in general. Chapman, A.R. and P. A. Ball The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa and Guatemala, Human Rights Quarterly 23(1): Popkin, M. and Roht-Arriaza, N Truth as Justice: Investigatory Commissions in Latin America, Law and Social Inquiry 20(1): Further reading: Andrews, M Grand National Narratives and the Project of Truth Commissions: A Comparative Analysis, Media, Culture and Society 25(1): Borneman, J Reconciliation after Ethnic Cleansing: Listening, Retribution, Affiliation, Public Culture 14: Crenzel, E Argentina s National Commission on the Disappearance of Persons: Contributions to Transitional Justice, International Journal of Transitional Justice 2(2): Freeman, M Truth Commissions and Procedural Fairness. Cambridge: Cambridge University Press. Laplante, L. and K. Theidon 2007 Truth with Consequences: Justice and Reparations in Post- Truth Commission Peru, Human Rights Quarterly 29(1): Rotberg, R.I. and D. Thompson, eds Truth versus Justice: The Morality of Truth Commissions. Princeton, NJ: Princeton University Press. Sanford, V Buried Secrets: Truth and Human Rights in Guatemala. New York: Palgrave Macmillan. Theidon, K Intimate Enemies: Violence and Reconciliation in Peru. Philadelphia: University of Pennsylvania Press. WEEK 4 (5 February): INTERNATIONAL CRIMINAL JUSTICE Since the late twentieth century there has a been a growing sense that some crimes are so heinous that the international community has a responsibility to prosecute those responsible no matter where the crimes took place. This lecture examines the various international criminal tribunals and their efforts to hold perpetrators of mass atrocity accountable. It will focus on the debate about the suitability of international criminal in the context of international criminal justice and the interplay between the tribunals internal dynamics and international politics? 5

6 Branch, A Dominic Ongwen on Trial: The ICC s African Dilemmas, International Journal of Transitional Justice 11(1): Clarke, K.M Refiguring the Perpetrator: Culpability, History and International Criminal Law s Impunity Gap, International Journal of Human Rights 19(5): Bass, G.J Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press. Clarke, K.M Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa. Cambridge: Cambridge University Press. Drumbl, M Atrocity, Punishment, and International Law. Cambridge: Cambridge University Press. Hagan, J., R. Levi and G. Ferrales 2006 Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the Former Yugoslavia, Law and Social Inquiry 31(3): Osiel, M Why Prosecute? Critics of Punishment for Mass Atrocity Human Rights Quarterly 22(1): Peskin, V International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation. Cambridge: Cambridge University Press. Simpson, G Law, War and Crime: War Crimes, Trials and the Reinvention of International Law. London: Polity Press. WEEK 5 (12 February): LOCALIZING TRANSITIONAL JUSTICE International criminal justice is often seen as aloof and far removed from local concerns and concepts of justice. In response, there have been calls to strengthen African community-based institutions to deal with the perpetrators of violence. But are these neo-traditional and localized forms of transitional justice really better suited to deal with human rights violations and war crimes? Are they really manifestations of African justice or rather inventions of well-meaning Western NGOs? These and other general questions surrounding attempts to localize transitional justice will be addressed in this week s lecture. Shaw, R. and L. Waldorf 2010 Introduction: Localizing Transitional Justice, in R. Shaw, L. Waldorf and P. Hazan, eds. Localizing Transitional Justice: Interventions and Priorities after Mass Violence. Stanford, CA: Stanford University Press, pp Orentlicher, D Settling Accounts Revisited: Reconciling Global Norms and Local Agency, International Journal of Transitional Justice 1(1): McEvoy, K. and L. McGregor, eds. Transitional Justice from Below: Grassroots Activism and the Struggle for Change. Oxford: Hart. Riano-Alcala, P. and E. Baines, eds Special Issue: Transitional Justice and the Everyday, International Journal of Transitional Justice 6(3). Shaw, R., L. Waldorf and P. Hazan, eds Localizing Transitional Justice: Interventions and Priorities after Mass Violence. Stanford, CA: Stanford University Press. Theidon, K., ed Special Issue: Whose Justice? Global and Local Approaches to Transitional Justice, International Journal of Transitional Justice 3(3). 6

7 WEEK 6: February 19-23, Flexible Learning Week WEEK 7 (26 February): INTERNATIONAL CRIMINAL JUSTICE AND RECONCILIATION IN BOSNIA AND HERZEGOVINA (with Dr Aitchison, School of Law, University of Edinburgh) When the International Criminal Tribunal for the former Yugoslavia (ICTY) was set up during the war in Bosnia and Herzegovina, a number of claims were made for what the court might achieve in terms of peace, justice and reconciliation. More than twenty years have passed, giving us the opportunity to assess the achievements of the court, its relation to other dimensions of transitional justice in Bosnia and Herzegovina, and remaining needs of justice and transition in the country. These will provide the focus for today s lecture and seminar. Campbell, K Reassembling International Justice: The Making of the Social in International Criminal Law and Transitional Justice, International Journal of Transitional Justice 8(1): Hodzic, R Living the Legacy of Mass Atrocities: Victims Perspectives on War Crimes Trials, Journal of International Criminal Justice 8(1): Subotic, J Expanding the Scope of Post-Conflict Justice: Individual, State and Societal Responsibility for Mass Atrocity, Journal of Peace Research 48(2): Chehtman, A Developing Local Capacity for War Crime Trials: Insights from Bosnia and Herzegovina, Sierra Leone, and Colombia, Stanford Journal of International Law 49(2): Clark, J.N The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Herzegovina, Journal of International Criminal Justice 7(3): Clark, J.N From Negative to Positive Peace: The Case of Bosnia and Hercegovina, Journal of Human Rights 8(4): Jeffery, A. and M. Jakala Beyond trial justice in the former Yugoslavia, Geographical Journal 178(4): Meernik, J. and J. R. Guererro Can International Criminal Justice Advance Ethnic Reconciliation? The ICTY and Ethnic Relations in Bosnia and Herzegovina, Southeast European and Black Sea Studies 14(3): WEEK 8 (5 March): THE LEGACY OF RACISM: SOUTH AFRICA This week will focus on the truth and reconciliation commission in South Africa, discussing its socio-cultural and political context as well as the hearings and the final report assessing its contribution to the peaceful transition in South Africa and its legacy. Ross, F.C On Having Voice and Being Heard: Some After-Effects of Testifying Before the South African Truth and Reconciliation Commission, Anthropological Theory 3(3): Wilson, R.A Reconciliation and Revenge in Post-Apartheid South Africa, Current Anthropology 41(1): Borer, T.A A Taxonomy of Victims and Perpetrators: Human Rights and 7

8 Reconciliation in South Africa, Human Rights Quarterly 25: Christie, K The South African Truth Commission. London: Palgrave. Gready, P The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commission and Beyond. Abingdon: Routledge. Krog, A Country of My Skull: Guilt, Sorrow, and the Limits of Forgiveness in the New South Africa. Johannesburg: Random House. Report of the Truth and Reconciliation Commission of South Africa 1998 and 2004 Volumes 1-5 (1998) and Volumes 6-7 (2004). Cape Town: Juta Press. Ross, F.C Bearing Witness: Women and the Truth and Reconciliation Commission in South Africa. London: Pluto Press. van Zyl, P. Dilemmas of Transitional Justice: The Case of South Africa s Truth and Reconciliation Commission, Journal of International Affairs 52(2): Wilson, R.A The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State. Cambridge: Cambridge University Press. WEEK 9 (12 March): TRANSITIONAL JUSTICE IN BURUNDI AND RWANDA: CONTRASTING EXPERIENCES OF FALSE TWINS (with Dr Jamar, School of Law, University of Edinburgh) Burundi pledged to put in place truth-seeking and judicial mechanisms to address the legacies of four decades of violence in None of these mechanisms has yet been fully implemented. Even before a political crisis emerged in 2015, most scholars assessing transitional justice in Burundi agreed that there were limited prospects for accountability. The lecture will unpack the socio-political dynamics that impact on transitional justice in Burundi and will underline how crucial challenges were emanating from both local and global factors. Ingelaere B Inside Rwanda s Gacaca Courts: Seeking Justice after Genocide, University of Wisconsin Press. Chapter 7 A Thousands Hills, A Thousand Gacaca. Rubli, S (Re)making the Social World: The Politics of Transitional Justice in Burundi. Africa Spectrum 48 (1). Madlingozi, T On Transitional Justice Entrepreneurs and the Production of Victims. Journal of Human Rights Practice 2 (2). United Nations General Assembly Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Pablo de Greiff. Mission to Burundi accessible at: Daley, P. and R. Popplewell The Appeal of Third Termism and Militarism in Burundi. Review of African Political Economy, (1 10). Curtis, D The International Peacebuilding Paradox: Power Sharing and Post-Conflict Governance in Burundi. African Affairs 112 (454). Mendeloff, D Truth Seeking, Truth Telling, and Postconflict Peacebuilding: Curb the Enthusiasm? International Studies Review 6 (3). Hayman R., 2008, Rwanda: Milking the Cow. Creating Policy Space in Spite of Aid Dependence, in Whit eld L., The Politics of Aid: African Strategies for Dealing with Donors, Oxford, Oxford University Press, p Jamar, A. (2017). The Social Life of Policy Reports: Reporting as a Tool in the Transitional Justice Battlefield in Rwanda. Revue Internationale Des études Du Développement, 232(4).. Training in Transitional Justice in Rwanda and Burundi: International Aid for Whose Sake? L Afrique des Grands Lacs, Annuaire Reyntjens, F., Vandeginste, S. 8

9 & Verpoorten, M. (eds.). L Harmattan. Accessible at e/ /21-jamar.pdf Oomen B., 2005, Donor-driven Justice and Its Discontents: The Case of Rwanda Development and Change, vol. 36, no 5, p Rubli, S Transitional Justice: Justice by Bureaucratic Means? Working Paper, Swisspeace, Straus S., Waldorf L., 2011, Remaking Rwanda: State Building and Human Rights after Mass Violence, Critical Human Rights, University of Wisconsin Press. Subotic, J The Transformation of International Transitional Justice Advocacy. International Journal of Transitional Justice 6(1). Taylor, D We Have No Influence : International Discourse and the Instrumentalisation of Transitional Justice in Burundi, Stability: International Journal of Security and Development 2 (3). Vandeginste, S Burundi s Truth and Reconciliation Commission: How to Shed Light on the Past While Standing in the Dark Shadow of Politics? International Journal of Transitional Justice Museveni, Burundi and the Perversity of Immunité Provisoire International Journal of Transitional Justice. Weinstein, H. M, Laurel E Fletcher, P. Vinck, and P. Pham Stay the Hand of Justice: Whose Priorities Take Priority? In Localizing Transitional Justice: Interventions and Priorities After Mass Violence, Stanford University Press. Shaw Rosalind, Waldorf Lars, Pierre Hazan. WEEK 10 (19 March): THE BITTERNESS OF WAR: SIERRA LEONE and LIBERIA After the end of the civil war in 2002, two transitional justice mechanisms have operated in Sierra Leone: a truth commission and an international criminal court, the Special Court for Sierra Leone. In Liberia, there has been a heated debate about holding accountable perpetrators of crimes committed during the civil war but attempts to establish a criminal tribunal have met strong resistance by former warlords who are represented in the national assembly. The government established with international support a truth commission that documented the crimes committed by the various factions. Anders, G Transitional Justice, States of Emergency and Business as Usual in Sierra Leone, Development and Change 45(3): Shaw, R Memory Frictions: Localizing Truth and Reconciliation in Sierra Leone, International Journal of Transitional Justice 1: Harris, D Sierra Leone: A Political History. London: Hurst. Kelsall, T Culture and Cross-Examination: International Justice and the Special Court for Sierra Leone. Cambridge: Cambridge University Press. Republic of Liberia Truth and Reconciliation Commission 2009 Consolidated Final Report. Monrovia: The TRC of Liberia. Sierra Leone Truth and Reconciliation Commission 2004 Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission. Accra: GPL Press. Shaw, R Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone. Special Report 130. Washington, DC: United States Institute of Peace. 9

10 WEEK 11 (26 March): CONTESTING JUSTICE AND RECONCILIATION: THE PEACE PROCESS IN COLOMBIA The lecture examines the current attempt to achieve peace and reconciliation in Colombia. The country has experienced a long-running insurgency by Marxist guerrilla groups that has resulted in bloodshed and very high levels of violence over decades. Paramilitary groups that were ostensibly set up to counter the insurgency in league with the military have also committed large-scale violence against the civilian population. After a protracted process that resulted in the demobilization of the paramilitary groups since 2003 the government and the main rebel group, the Revolutionary Armed Forces of Colombia (FARC), signed a peace deal in 2016 that is supposed to bring lasting peace and reconciliation to the country. Alcala, P.R., M.V. Uribe Constructing Memory amidst War: The Historical Memory Group of Colombia, International Journal of Transitional Justice 10(1): Theidon, K Pasts Imperfect: Talking about Justice with former Combatants in A. Hinton and D. Hinton, eds. Genocide and Mass Violence: Memory, Symptom, Recovery, Arnson, C., ed The Peace Process in Colombia with the Autodefensas Unidas de Colombia-AUC. Washington, DC: Woodrow International Center for Scholars. Denissen, M Reintegrating Ex-Combatants into Civilian Life: The Case of the Paramilitaries in Colombia, Peace and Change: A Journal of Peace Research 35(2): Meertens, D. and M. Zambrano Citizenship deferred: The Politics of Victimhood, Land Restitution and Gender Justice in the Colombian (Post) Conflict, International Journal of Transitional Justice 4(2): Nussio, E., A. Rettberg, J.E. Ugarriza Victims, Nonvictims and their Opinions on Transitional Justice: Findings from the Colombian Case, International Journal of Transitional Justice 9(2): Pietro, J.D Together after War While the War goes on: Victims, Ex-Combatants and Communities in Three Colombian Cities, International Journal of Transitional Justice 6(3): Rozema, R Urban DDR-processes: Paramilitaries and Criminal Networks in Medellin, Colombia Journal of Latin American Studies 40(3): Theidon, K Transitional Subjects: The Disarmament, Demobilization and Reintegration of Former Combatants in Colombia, International Journal of Transitional Justice 1(1):