TRANSITIONAL CRIMINAL JUSTICE IN POST-DICTATORIAL AND POST-CONFLICT SOCIETIES

Transcription

1 TRANSITIONAL CRIMINAL JUSTICE IN POST-DICTATORIAL AND POST-CONFLICT SOCIETIES

2 SERIES ON TRANSITIONAL JUSTICE The Series on Transitional Justice offers a platform for high-quality research within the rapidly growing field of transitional justice. The research is, of necessity inter-disciplinary in nature, drawing from disciplines such as law, political science, history, sociology, criminology, anthropology and psychology, as well as from various specialised fields of study such as human rights, victimology and peace studies. Furthermore, the research is international in outlook, drawing on the knowledge and experience of academics and other specialists in many different regions of the world. The series is aimed at a variety of audiences who are either working or interested in fields such as crime and justice; human rights; humanitarian law and human security; conflict resolution and peace building. These audiences include academics, researchers, students, policy makers, practitioners, non-governmental organisations and the media. All books published within the series are subject to a double-blind peer review by recognised authorities in the field. The General Editors of the Series are: Prof. Stephan Parmentier (Catholic University of Leuven, Belgium) Prof. Jeremy Sarkin (University of South Africa) Prof. Elmar Weitekamp (University of Tübingen, Germany) The general editors receive the support from an Editorial Committee and an Advisory Board, consisting of internationally renowned academics and practitioners. Published titles within this Series: 6. Gaby Oré Aguilar and Felipe Gómez Isa (eds.), Rethinking Transitions. Equality and Social Justice in Societies Emerging from Conflict (2011), Richard Zajac Sannerholm, Rule of Law after War. Ideologies, Norms and Methods (2012), Nicola Palmer, Phil Clark and Danielle Granville (chief editors), Critical Perspectives in Transitional Justice (2011), Edda Kristjánsdóttir, André Nollkaemper and Cedric Ryngaert (eds.), International Law in Domestic Courts: Rule of Law Reform in Post-conflict States (2012), Bas van Stokkom, Neelke Doorn and Paul van Tongeren (eds.), Public Forgiveness in Post- Conflict Contexts (2012), Ilse Derluyn, Cindy Mels, Stephan Parmentier and Wouter Vandenhole (eds.), Re-Member. Rehabilitation, Reintegration and Reconciliation of War-Affected Children (2012), Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens and Larissa van den Herik (eds.), Sexual Violence as an International Crime: Interdisciplinary Approaches (2012), Estelle Zinsstag and Martha Albertson Fineman (eds.), Feminist Perspectives on Transitional Justice: From International and Criminal to Alternative Forms of Justice (2013), Josep M. Tamarit Sumalla, Historical Memory and Criminal Justice in Spain. A Case of Late Transitional Justice (2013), Catherine Jenkins (ed.), Max du Plessis (ed.), Law, Nation building and Transformation The South African experience in perspective (2014), Susanne Buckley-Zistel and Stefanie Schäfer (eds.), Memorials in Times of Transition (2014), Nico Wouters (ed.), Transitional Justice and Memory in Europe ( ), For previous volumes in the series, please visit Series on Transitional Justice, Volume 18

3 TRANSITIONAL CRIMINAL JUSTICE IN POST-DICTATORIAL AND POST-CONFLICT SOCIETIES Edited by Agata Fijalkowski Raluca Grosescu Cambridge Antwerp Portland

4 Intersentia Ltd Sheraton House Castle Park Cambridge CB3 0AX United Kingdom Tel.: Distribution for the UK: NBN International Airport Business Centre, 10 Thornbury Road Plymouth, PL6 7 PP United Kingdom Tel.: Fax: orders@nbninternational.com Distribution for Austria: Neuer Wissenschaftlicher Verlag Argentinierstraße 42/ Wien Austria Tel.: office@nwv.at Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave. Suite 300 Portland, OR USA Tel.: (toll free) info@isbs.com Distribution for other countries: Intersentia Publishing nv Groenstraat Mortsel Belgium Tel.: mail@intersentia.be Transitional Criminal Justice in Post-Dictatorial and Post-Conflict Societies Agata Fijalkowski and Raluca Grosescu (eds.) 2015 Intersentia Cambridge Antwerp Portland Artwork on cover: Author Jan Jordaan, title Hurt, medium Linocut, From the Universal Declaration of Human Rights International Print Portfolio, Article 5, published by Art for Humanity, South Africa, ISBN D/2015/7849/20 NUR 828 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher.

5 CONTENTS Introduction Agata Fijalkowski and Raluca Grosescu General Overview Relationship between Judicial Accountability, Democratisation and Politics in Transitional Societies Role of Successor Trials in Rewriting History Interaction between Domestic and External Actors in Shaping Transitional Justice and Democratic Accountability Narratives of the Paradox of Time in Transitional Justice PART I. CRIMINAL JUSTICE AS A METHOD OF DEALING WITH THE PAST: OPPORTUNITIES, STRATEGIES, AND LEGAL AND POLITICAL CONSTRAINTS Chapter 1. Retrospective Justice: Post-Communist Germany and Poland in Comparative Perspective Agata Fijalkowski Research Question Definitions European Context and German Case Study Polish Case Study: The Martial Law Case Concluding Remarks Chapter 2. Transitional Justice in Nepal: Prosecutions, Reform and Accountability Strategies James Gallen Historical Context: Nepal s Conflict and Transition to Peace Torture and the Criminal Law of Nepal The Legal Framework concerning Enforced Disappearances Other Forms of Accountability: Investigation, Vetting and Security Sector Reform Conclusion Intersentia v

6 Contents Chapter 3. Transitional Trials as History Writing: The Case of the Romanian December 1989 Events Raluca Grosescu and Raluca Ursachi Introduction A Short Presentation of the Events of December December 1989 as Genocidal Repression The Concept of Genocide The Concept of Genocide in Ceauşescu s Trial The Political Manipulation of the Genocidal Repression December 1989 as the Responsibility of the Party, Militia and Securitate Blaming the Ministry of the Interior and Exonerating the Army December 1989 as the Responsibility of the Army December 1989 as the Result of Incompetence Conclusions Chapter 4. Transitional Criminal Justice: The Polish Way Agata Fijalkowski Theoretical Framework Stalinist Rule ( ) Martial Law Fall of Communism Early 1990s Controversy Communist Crimes Coda Concluding Remarks Chapter 5. Public Contestation and Politics of Transitional Justice: Poland and Albania Compared Artur Lipinski and Arolda Elbasani Introduction Transitional Justice after Communism Quest for Justice, Different Models and Varying Results Explaining Transitional Justice Failure of Transitional Justice in Albania: Too Much Politics, Too Little Debate Timid Political Debates: Weak Actors and Limited Alternatives Late-Coming and Politicised De-Communisation Acts vi Intersentia

7 Contents 3.3. Mockery of Transitional Justice Facing the Past All Over Again Reveal and Forgive Model in Poland: Politics amidst Fervent Debates The Polarising Potential of Lustration: Key Actors and the Dynamics of Debate The First Lustration Act Efforts to Hollow out Lustration Procedures Inefficient Lustration and Reforming Efforts Conclusions Chapter 6. Consolidating Democracy Through Transitional Justice in Slovenia: Lessons Learnt? Jernej Letnar Černič Introduction Historical Background The Prosecutor v Mitja Ribičič The District Court Decision Challenges of Bringing a Crimes against Humanity Case So Many Years after Events How to Deal with Post-WWII Crimes in Slovenia Preserving Institutional Memory Conclusion PART II. UNIVERSAL PRINCIPLES V LOCAL PECULIARITIES: THE RELATIONSHIP BETWEEN NATIONAL JURISDICTIONS AND INTERNATIONAL LAW Chapter 7. International Politics of Justice: The Political Underpinnings of the Emergence of an International Regime Ruxandra Ivan Introduction Historicising Sovereignty and its Limits Natural Rights: A Counterweight to Sovereignty? International Criminal Justice: World Biopower? The International Criminal Court State Interests and the ICC Intersentia vii

8 Contents Chapter 8. Positive Complementarity: Fine-Tuning the Transitional Justice Discourse? The Cases of the Democratic of Congo, Uganda and Kenya Patrícia Pinto Soares Understanding Positive Complementarity Principle of Complementarity Alternative Forms of Justice Preliminary Conclusion: Complementing Complementarity Positive Complementarity: More than Wishful Thinking? Democratic Republic of the Congo Uganda Kenya Implementing Positive Complementarity Conclusion Chapter 9. Punishing Mass Atrocities: Penological Developments in the Aftermath of the Rwandan Genocide Pietro Sullo Introduction Towards a Criminology of International Crimes Penology of International Crimes: International and Hybrid Tribunals International Crimes before National and Traditional Courts Rwanda Rwandan Ordinary Courts Gacaca Courts Conclusion Chapter 10. International and National Legal Assessment of Crimes Committed by the Communist Regimes: Lithuanian Case Study Dainius Žalimas Introduction Definition and Classification of International Crimes Crimes Committed by the Communist Regimes: General International Legal Assessment Lithuanian Case Study Prosecution of the Perpetrators of the Crimes Attributable to the Soviet Occupation Regime Compensation for the Victims of the Crimes Committed by the Soviet Occupation Regime viii Intersentia

9 Contents 4.3. Towards Moral Satisfaction and Protection of Dignity of the Victims: a Bar on the Glorification of Crimes Committed by the Soviet Occupation Regime Conclusions Chapter 11. Conclusions Lavinia Stan The Findings Democratisation and Democracy Truth Telling and Court Trials External and Internal Factors The Time Factor Future Research Genocidal Crimes The Judges Profile Court Trials as Methods of Redress Conclusion About the Authors Intersentia ix

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