Human Rights in Law, Politics and Society

Transcription

1 Human Rights in Law, Politics and Society Lecture 5: Democratization and Transitional Justice Steven Greer

2 Overview Part one: Democratization What is democracy? A brief history Modernity and democratization Democracy as consultation Democracy, internationalization and globalization Democracy and human rights: congruence and conflict Part two: Transitional justice What kinds of transition? Transitional justice and democratic transitions post-2nd World War post-cold War Key justice issues in democratic transitions Part three: Conclusion

3 1.1. What is democracy? Demos (δήμος) - the people Kratos (κράτος) - rule/strength/power Democracy = rule/strength/power of the people Democracy is rare and fragile in history requiring uncommon social and political conditions never complete vulnerable to de-democratization

4 1. 2. A brief history Ancient Greek city-states 5th/4th century BC Direct democracy Athenian demos Citizenship: only free Athenian men 250,000 inhabitants: 30,000 citizens (5,000 active) No separation of powers, no defined human rights, no legal restraints upon actions of assembly popular sovereignty could mean popular tyranny juries of 500 (1,000 for capital/other serious offences) selected by lot: eg trial of Socrates (399BC) most public officials selected by lot: generals & some officers elected

5 1. 2. A brief history (continued) Some celebrated pre-modern democracies Icelandic Althing; Iroquois confederacy; Swiss cantons Early modern period: democracy gets bad press - mob rule Democracy and the liberal revolutions of 17th & 18th centuries No taxation without representation Liberalization/constitutionalization precede full democratization constitutional rights as limits on exercise of public power The constitutional settlement Terms of political association Separation of powers: executive, legislature, judiciary Franchise» Gender qualification (only men)» Status qualification (only free men)» Property qualification (only rich free men)» Ethnic/national qualification (only rich free English etc men)

6 1. 3. Modernity and democratization Modernization produces Distinct forms of authoritarianism: fascism and communism Optimum conditions for democracy: transforms what it means Scale, complexity and bureaucratic character of modern states Shift from direct representative/deliberative democracy Party systems and interest groups: class, ethnicity, region, identity Complex relationship between representation, popular sovereignty, consultation and accountability Four leading conceptions of democracy (Tilly) Constitutional: focus on laws regarding political activity Substantive: focus on quality of life/type of politics promoted Procedural: focus on elections Process-oriented: focus on wide range of processes eg effective participation; voting equality; control of agenda etc

7 1. 4. Democracy as consultation Tilly A regime is democratic to the degree that political relations between the state and its citizens feature broad, equal, protected and mutually binding consultation. (Democracy (2007), p. 14) Citizens - right to be consulted States - obligation to seek approval Strong resonance with no taxation without representation Factors integral to democracy and democratization (Tilly) Enduring relationship of trust between rulers and ruled State does not promote categorical inequality eg based on gender, race, ethnicity, class, caste Neutralization of other autonomous coercive power centres eg war lords, patron-client chains, private armies, religious institutions

8 1. 5. Democracy, internationalization and globalization: int. human rights law UDHR 1948 & ICCPR 1966 Contain classic civil and political rights: life, liberty, freedom from torture etc, freedom of association, expression, peaceful assembly etc Art 21 (UDHR)/Art. 25 (ICCPR): right to participate in government through free periodic elections subject to secret ballot and universal suffrage Almost half world s states (out of 192) are democratic but only 28 are full democracies (Economist (2006) In these instruments democratic society operates as limitation upon rights (to be explained later)

9 1. 5. Democracy, internationalization and globalization (continued) Democracy and international institutions Inter-state institutions (by definition) cannot be directly democratized: site for democratization remains the state Debate about democratization of international financial institutions deferred to Development topic Globalization Economic globalization potentially threatens some national democracies in developing world corrupt elites in collusion with MNCs Other dimensions tend to spread democratic ideal international political and legal institutions western culture and IT power of west: democracy at home but not always abroad

10 1. 6. Democracy and human rights: congruence Democracy is good for human rights Human rights can only fully thrive in democracies because, by definition, non-democracies fail to respect democratic rights Human rights are good for democracy Human rights set conditions/govern framework for democratic representation, consultation, and deliberation Particularly true of civil & political rights But also true of other rights eg effective consultation etc requires educated electorate

11 1. 6. Democracy and human rights: conflict Few human rights are absolute: virtually all limited by public interests/considerations of the common good Derogable and non-derogable rights (eg ECHR; similar in ICCPR) all ECHR rights can be suspended in time of war or public emergency threatening life of nation except right to life; freedom from torture, inhuman or degrading treatment or punishment; freedom from slavery and servitude; freedom from retrospective criminalization/increase in punishment (Art. 15) Suspension must be strictly required given threat Conflicts between ECHR rights and common good All other ECHR rights subject to wide exceptions (plus right to life) Provided rule of law, democratic necessity and proportionality tests met eg conflict between liberty and national security (to be discussed in Terrorism topic)

12 2. 1. Transitional justice: what kinds of transition? Continuity and change In even the most thorough revolutions some things stay the same eg culture often remains constant while institutions/official ideology change Micro and macro Political: institutional/ideological eg one-party authoritarianism multi-party democracy Social: structural: eg feudalism modernity Cultural French Revolution decimalization of the working week renaming months of the year Chinese Cultural Revolution war on almost every feature of ancient regime: Confucianism, religion etc loyalty to family superseded by loyalty to state red traffic lights mean go not stop

13 2. 1. What kinds of transition (continued)? How to characterise old and new? Authoritarianism Democracy Tradition Modernity Feudalism Capitalism/Modernity Conflict Peace Colonial national self determination post-national Transformation in conception of justice Sociological: decisive shift in legitimation in dominant ideology, institutions, distribution of public/private power Normative: move to closer realisation of universal values Democracy; human rights; rule of law; democratically regulated market

14 2. 2. TJ and democratic transitions: post 2nd world war Era Region 1st wave 1940s W. Europe E. Europe 2nd wave 1970s S.Europe (Spain, Portugal Transition Occupation liberation Fascism democracy Fascism communism - Purges (W&E) -Trials of collaborators (W&E) - Nuremberg (W&E) Military dictatorship Democracy - Purges (P & G) - Instit.forgetting Greece) 3rd wave 1980s Latin America Justice (Spain) Military dictatorship Democracy -Truth commissions - Trials in Argentina, Bolivia & Nicaragua

15 2. 2. TJ and democratic transitions: post Cold-War Era Region Transition 1990s E. Europe Comm. Democ. Arrested Democ. Property Purges ( Lustration ) Trials of border guards Truth commissions ICTY 1990s Africa S.Africa Rwanda Apartheid Democ. Genocide Peace Truth commissions ICTR Dictatorship-Islamic Democ? Purges Trials of Ba athists 2000s Afghanistan? Iraq? Justice Georgia (Rose, 2003), Ukraine (Orange, 2004), Lebanon (Cedar, 2005)

16 2. 3. Key justice issues in democratic transitions Structural/institutional universals Democratization, constitutionalization, judicialization, civilianization Transitional justice dilemmas/complementarities Goals Justice or reconciliation? Closure or remembrance? Policies Punishment or pardon? domestic/int. criminal trials or amnesties? Purges ( lustration ) or official continuity? Truth commissions or institutional forgetting? Key factors affecting character of transitional justice National factors are most important Institutional history of particular country Character of authoritarian regime Character of transition Role of international agencies and processes

17 2. 3. Institutional history and character of pre-democratic regime Institutional history Positive experience of democracy prior to authoritarian regime better chance for democ., eg post-soviet central Europe Exception: Spain. Successful democ. transition (1970s) despite complicated experience of democ. in 1930s Character of authoritarian regime How repressive? Intensive, physical, concentrated on regime s enemies (eg extra judicial killings, disappearances etc) punish culprits Low intensity, psychol.,systematic, pervasive (eg Cold War E. Europe) who to punish? How amenable to reform? Revolution or reform: continuity and change?

18 2. 3. Character of democratic transition Revolutionary transitions: war and revolution Problems violent, destructive, in humane how to govern while constructing new order? Opportunity: wider choice of TJ initiatives Negotiated, pacted, reform transitions Balance of power between new and old: limits scope for purges & trials Transitions by extrication (Przeworski): pro-reform element in old regime negotiates with opposition: legacies of authoritarianism endure successful in Spain: unsuccessful in Chile. Role of armed opposition: limits scope for trials general amnesty Role of civil society, eg churches - Protestant churches in E. Germany at end of Cold War; paradoxical role of Catholic Church in Latin America Stalled or reversed transitions ( de-democratization (Tilly)) Old regime uses transitional process to regroup and stage come-back especially if opposition goals are too ambitious.

19 2. 3. Role of international factors Reconstruction guided by occupying power: Germany & Japan post 2nd WW Foreign ideological allies of authoritarian and transitional states USSR supported communist regimes, eg Cuba, Afghanistan USA supported non democ. anti-communist regimes during Cold War and democratizing states in Central/Eastern Europe post-cold War International civil society, eg NGOs, religious organisations Role of Catholic Church at end of Cold War (Poland) International human rights law Largely irrelevant to transitions in 1970s More significant from 1980s onwards Point of reference constitutionalization, particularly for transitional judiciary Transition itself subject to human rights constraints, eg respect for due process in purges and political trials

20 3. Conclusion Democratization Scale, complexity, and bureaucratic character of modern states complicates relationship between exercise of public power, popular sovereignty, accountability, participation and consultation Compounded by internationalization and globalization Human rights and democracy Congruence: hr are good for democracy and democracy is good for human rights Conflict: human rights capable of being restricted in pursuit of common good Justice in democratic transitions ( transitional justice ) Structural/institutional universals Construction of liberal democratic constitutions/institutions and democratically regulated markets Compliance with international standards, especially human rights Everything else is context specific Key: what works best for future of particular society in question Subject to national negotiation and compromise