The ‘Rule of Law’ Impasse? Overcoming conceptual ambiguity and thinking beyond the orthodox approach to rule of law reform in post-conflict societies.

Author(s): Patrick Hartwig / Language(s): English / Issue: 10/2019

Recognising the continued importance and relevance of rule of law promotion in transitional justice processes and for sustainable peace and development in countries emerging out of conflict and widespread human rights violations, this paper looks at some of the issues that have been hindering international support to justice sector reform from advancing beyond its so-called ‘orthodoxy’. It examines how conceptual ambiguity has affected the ways in which rule of law programmes are conceived, planned, implemented and evaluated, and thus, how it has contributed to a so-called rule of law impasse. It also looks at some of the programmatic shortcomings as a consequence of this impasse and concludes, by identifying some steps taken in a different direction, that there’s an eagerness to move beyond the orthodox rule of law paradigm.

The Structural Limitations of the EU to Engage in Transitional Justice

Author(s): Osiris Hoepel / Language(s): English / Issue: 2/2011

The European Union undertakes several transitional justice activities. Most specifically, three areas of activities can be identified: conducting peace-keeping missions, supporting the ICTY in providing justice and funding transitional justice activities. Despite these activities, the EU lacks a comprehensive transitional justice policy, which has detrimental effects on the outcome of these activities. Four recommendations are presented that may reverse these effects.

The Struggle of the Greek-Catholic Priests for the Legal Status of the Ukrainian Language in the Second Polish Republic (1921–1939)

Author(s): V. Ya Markovskyi,I.Z. Toronchuk / Language(s): English / Issue: 2/2019

The purpose of the research under studies is to reveal the peculiarities of the language policy of Interwar Poland regarding the Ukrainian-speaking population of Eastern Galicia between the two World Wars, as well as to determine the attitude of the Ukrainian Greek Catholic Church (UGCC) to this issue.The Ukrainian Greek-Catholic clergy has always struggled for its right to keep church records and to issue metric books in Ukrainian. It also upheld the natural persons’ right to have their names and surnames transcribed in compliance with the national tradition, in other words, according to the Ukrainian spelling rules. The above attempts and efforts led to the fact that some Greek-Catholic priests were brought to criminal liability.Based on the analysis of certain normative-legal acts, archive sources and specialized literature, the article under discussion investigates the legislation and judiciary of the Second Polish Republic in the field of language legal relationship. In particular, it carries out a profound analysis of public-legal disputes between the bodies of legislative power on the one hand, and the Greek-Catholic clergy – on the other. The conflict of interests lay in the fact that Polish executive bodies of state power intended to make Greek-Catholic ministers keep parish registers in the Polish language (or Latin), but not in Ukrainian. The Greek-Catholic priests regarded themselves not subject to the jurisdiction of the secular authorities and, consequently, ignored those requirements, which, eventually, resulted in a number of trials. Besides, the article under studies presents the legal position of the prosecutor's office of the Second Polish Republic and that of the Greek-Catholic priests (together with their lawyers) in the above legal conflict.

The transitional justice in France after the Second World War

Author(s): Lucie Gamba / Language(s): English / Issue: 10/2019

According to the website of the International Center for Transitional Justice, Transitional justice “refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response”. How transitional justice did work in France after the Second World War? The country had to deal with the punishment of the responsible, and its reconstruction. This war destroyed the country, socially, economically, and politically, and the needs of reforms was urging. Before all the international conventions, the official recognising of human rights as we know it today and the advent of transitional justice, France and more generally the world had to deal with it and find a balance between justice and rebuilding. The social context was complicated because of the hate and the thirst of revenge of the population and it was another factor for the public authority to deal with.

Theoretical and Practical Considerations Regarding the Power Abuse

Author(s): Andrada Nour / Language(s): English / Issue: VI/2018

The revolution in our country both politically and socio-economically, caused significant changes in the legal system, and in the domain of the legal research were completely reconsidered certain fundamental concepts. In this paper, we proposed the definition and analysis of the abuse of power as a legal phenomenon with many implications in legal and social, given the tendency to generalize this form of abuse, practiced virtuous or primitive by the rightholder subjective. The purpose of this study is to provide a clear analysis of the procedures for the exercise of power abuse in the context of existing legislative instability in Romania.

THREATS TO CYBER SECURITY

Author(s): Ana Maria Tudor / Language(s): English / Issue: III/2015

The rapid development of modern information technologies and communications-the sine qua non of the information society-building has had a major impact on the society, marking true mutations in the philosophy of economic, political and cultural life, but also on the everyday lives of individuals. Basically, at present, easy access to information and communication technology is one of the prerequisites for the smooth functioning of modern society. Cyberspace is characterized by the absence of borders, dynamism and anonymity, generating both alike, knowledge-based opportunities for the development of the information society and risks to its operation (at the individual level, state and even cross-border manifestation. More a society is computerized, the more vulnerable it becomes and ensuring the security of cyberspace should be a major concern of all actors involved, particularly at the institutional level, where the focus is the development and implementation of responsible policies in the field.

To Genuine Reconciliation on Comfort Women

Author(s): Li Zhewei / Language(s): English / Issue: 10/2019

The comfort women, which was a brutal crime in the Second World War, has been a historical dilemma in the international legal practice in the East Asia. It is an impasse made up of gender, decolonisation and nationalism elements. This article tries to propose a possible way to reach a genuine reconciliation on the comfort women issue from a perspective of transitional justice. Firstly, an introduction about the comfort women issue will be introduced, which will establish the whole theoretical analysis framework. The Second Part will try to analyze the obstacles and difficulties to ultimately settle down the comfort women dilemma. In the Third Part, this essay will conduct cases study by retrospecting the currently existing practice that has tried to address the comfort women problem, namely inter-governmental cases and individual-claim cases. The Conclusion will coincide the rationale of the First Part and put forward the possible solution with a threefold structure.

Tolerancja, która boli. Jak nie wydłużać kolejki po klauzulę sumienia

Author(s): Andrzej Draguła / Language(s): Polish / Issue: 667/2017

W roku 2008 w Wielkiej Brytanii ruszyła kampania pod hasłem „One Law for All” (Jedno prawo dla wszystkich), której celem było przeciwstawienie się próbom wprowadzenia elementów szariatu do brytyjskiego systemu prawnego. Pojawiły się bowiem informacje, że trybunały sądowe w niektórych miastach Wielkiej Brytanii są gotowe, na prośbę obywateli muzułmańskich, do stosowania zasad szariatu w przypadkach rozwodu, konfliktów finansowych czy przemocy domowej. Próby te spotkały się z protestem społeczności brytyjskiej. Byłoby to bowiem faktyczne zaakceptowanie istnienia obok siebie dwóch odrębnych (choć działających w ograniczonym zakresie) systemów prawnych. Zamiast „prawa dla wszystkich” byłoby „prawo dla niektórych”.

Top-Down vs. Bottom-Up Approaches. Bridging Differences in post-war Bosnia and Herzegovina

Author(s): Ana Alibegova / Language(s): English / Issue: 3/2012

This essay focuses on the process of reconciliation in post-war Bosnia and Herzegovina as a highest goal of the transitional justice. It discusses the methods that were used to achieve reconciliation and analyses the two perspectives: the top-down approaches and the bottom-up approaches. The main questions I am discussing are which approach of reconciliation as a final aim of the transitional justice is better, how the reconciliation is conditioned by the memory and the social categories emerging from the war and how it is juxtaposed to the ‘official’ justice promoted by the international community.

Transitional Justice and Democratisation: The Central and Eastern European Experience after 1989 – with Special Reference to Poland

Author(s): Tomasz Lachowski / Language(s): English / Issue: 2/2011

Societies in transition from totalitarian systems to democracy face the basic need to create a national approach to the repressive actions of the former regime and its officials, such as human rights violations and other abuses. One of the main issues is how to organise transitional justice mechanisms in order to set up the process of democratisation and build a ―rule of law state. This paper focuses particularly on the legal dilemmas of the Polish transition to state based on democratic values and rule of law principles after 1989. Although Poland has successfully transformed into a stable European country, a member of the European Union and other international bodies, we can still observe tensions within a society built upon the question of persons (state officials, members of the leading party, members and agents of the secret police) involved in the actions of the former regime and their potential legal (criminal) responsibilities. This paper elaborates on the selected decisions of Polish judicial bodies with reference to the German and Hungarian experiences in that field.

Transitional Justice and Guarantees of Non-Repetition: Sri Lanka and the Office on Missing Persons (OMP)

Author(s): Andrew Chisholm / Language(s): English / Issue: 9/2018

This paper seeks to examine the process of transitional justice in Sri Lanka following the end of conflict in 2009, by assessing the implementation of transitional justice mechanisms under United Nations Human Rights Council (UNHRC) Res 30/1. Initially this paper will discuss the concept of ‘guarantees of non-repetition’ in relation to transitional justice and violations of international human rights. It will then analyse the current implementation and workings of the Office on Missing Persons (OMP) in Sri Lanka. The OMP is the first of four mechanisms of transitional justice to be implemented and officially set up by the Government of Sri Lanka in 2018. As the first functioning mechanism of transitional justice under UNHRC Res 30/1, this paper discusses what role the OMP has in constituting or contributing to a guarantee of nonrepetition. Subsequently it can play a role in addressing underlying structural issues and socio-economic rights, under the umbrella of transformative justice. Despite its implementation, the Office on Missing Persons itself will only contribute to a guarantee of non-repetition if it has the implementation and support of all four mechanisms under UNHRC Res 30/1.

Transitional Justice as a Constitutional Instrument in International Law

Author(s): Aydin Atilgan / Language(s): English / Issue: 2/2011

In today‘s world, it is evident that the international legal order‘s roles have increased in many domains where the nation states remain incapable. Settling with the past is one of those domains, which have been dealt by the international community. At this point, where do transitional justice processes fall among the debates on global constitutionalism? This paper questions the influences of transitional justice processes on the international legal order under guidance of the dynamics of global constitutionalisation.

Transitional Justice for Male Victims of Conflict-Related Sexual and Gender-Based Violence?

Author(s): Philipp Schulz / Language(s): English / Issue: 6/2015

Globally, conflict-related "sexual violence is committed against men more frequently than is often thought" (Sivakumaran 2007). However, this growing attention has not yet translated into sufficient policies or transitional justice instruments for male sexual violence victims. Only very limited research specifically analyzes justice and accountability for male victims of sexual violence. Throughout this restricted body of literature, a heavy emphasize is placed on retributive justice and judicial accountability. Such a narrow focus, however, risks ignoring other potential transitional justice mechanisms which may theoretically offer redress and accountability for male victims. Against this backdrop, this paper proposes to discuss some of the challenges male victims of SGBV face in accessing justice and legal protection. Moreover, the paper argues to consider non- or semijudicial transitional justice mechanisms to provide redress for male victims of sexual violence, and calls for victim-centric empirical research to establish male victims' perspectives with regards to transitional justice.

Transitional Justice in Democratization Processes: The Case of Spain from an International Point of View

Author(s): Teresa C. Fernández Paredes / Language(s): English / Issue: 1/2010

The Spanish transition took place from 1975 to 1982 and was achieved with the consensus of all political parties to not talk about the past (Pact of Oblivion). It turned out that Spain peacefully developed into a strong and consolidated democracy where it seemed the problems of the past were solved. However, recently, different organizations are criticizing the way the transition was conducted and are demanding justice for the victims. This essay will analyze the measures taken during the Spanish transition to determine to what extent they complied with international transitional justice standards. Among other arguments, some examples of transitional justice processes in Chile and Argentina will be used, without an attempt to go into a deep comparative study of the three countries.

Transitional Justice in Macedonia and its Relations with Democracy

Author(s): Elmina Kulasic / Language(s): English / Publication Year: 2012

This article focuses on the transitional process in a society which has experienced a violent conflict and needs adequate mechanisms to deal with the legacies of the past in order to prevent future violence and pave the way for reconciliation and democratic consolidation. The disintegration of the Socialist Federal Republic of Yugoslavia (Yugoslavia) and its legacy has left a number of newly emerged and independent democracies in the Western Balkan region to cope with grave violations of human rights. The bloodshed in Croatia and Serbia, and the genocide in Bosnia and Herzegovina lead to the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The jurisdiction of ICTY was extended to Macedonia and the 2001 conflict; however, the Ohrid Framework Agreement (OFA) inclusion of an Amnesty Law raises a number of questions related to the process of reconciliation and transitional justice mechanisms. In The Republic of Macedonia (Macedonia), the need and importance to promote understanding, tolerance and peace for all within the country has been sidelined in the OFA because the main goal was to end the violence, accentuating peace over justice. As a result, OFA focus on political representation and ethnic power-sharing has neglected past grievances and atrocities which are of utmost importance in order for a society to move forward with its democratic consolidation.As such, this paper will look at the mechanisms of transitional justice and its relations with democracy. Its aim is to argue that a long-term approach steaming from the different mechanisms of transitional justice is imperative for democratic consolidation and stable inter-ethnic relations in Macedonia.

Transitional Justice in Ongoing Conflicts and Post-War Reconstruction

Reintegrating Donbas into Ukraine

Author(s): Tomasz Lachowski / Language(s): English / Issue: 2/2017

The main aim of the paper is to analyse the potential transitional justice mechanisms, directed at reintegration of Donbas, a territory temporarily occupied by pro-Russian separatists, being under the combination of a direct and indirect control of Kremlin, with Ukraine. In the aftermath of the Revolution of Dignity and a remove of ex-President Viktor Yanukovych as a consequence of Euromaidan protests held in Kyiv, in the Winter 2013/14, Ukraine became a state involved in the international armed conflict covering its Eastern provinces as a result of an external aggression of the Russian Federation. Furthermore, since early-2014, Moscow is continuously using pro-Russian militants to form and uphold unrecognised, de facto regimes of the so-called ‘Donetsk’ and ‘Luhansk People’s Republic(s)’ affecting the territorial integrity of the Ukrainian state. It is argued that Kyiv shall take into consideration some of the peace and restoration models applied in similar conflict or post-conflict environments, such as the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES) or the experience of numerous disarmament, demobilisation and reintegration (DDR) programs, filled with the transitional justice component. Moreover, by emphasising the context of a military (semifrozen) conflict in Eastern Ukraine, the paper is going to shed more light on the possible application of transitional justice tool-kit in the ongoing conflicts scenarios and its potential contribution to the shift from a conflict to the postwar environment.

Transitional Justice in Post dictatorship Brazil and its consequences for Bolsonaro’s election 2018

Author(s): Leonie Schiedek / Language(s): English / Issue: 10/2019

In the national elections 2018 in Brazil, a right-wing populist and open advocate of the authoritarian military regime that ruled Brazil from 1964 until 1985 Jair Messias Bolsonaro took office. Since the end of the military dictatorship different transitional justice measures were applied in order to compensate past Human Rights violations. However, the perpetrators have never been sentenced and justice has never been restored. In this paper, it is highlighted how the dominant public narrative of the military dictatorship favoured the election of Jair Bolsonaro as reaction to a multiple national crises. The results show that transitional justice efforts in post-dictatorship Brazil have failed on all levels to re-establish truth, justice and the rule of law. The positive narrative of the military law-and-order dictatorship has pushed the Brazilian voters in the direction of a right-wing politician during several tremendous crises. Bolsonaro’s success can therefore be explained by the fertile ground for populist ideas prepared by a fragmented society with roots in the dealings of the past. Further development of the Human Rights and democracy situation in Brazil needs to be observed.

Transitional Justice Models and Analytic Philosophy

Towards Theory

Author(s): Michał Krotoszyński / Language(s): English / Issue: 2/2017

As an interdisciplinary field of scholarship, transitional justice is still in its pre-theoretical stage, focusing mainly on the case and comparative studies, supported by general considerations concerning justice in the times of transition. To entrench the field as a distinct area of studies, a theory of transitional justice needs to be formulated. The article explores the possibility of making a step towards such a theoretical basis with the use of the tools of analytical philosophy, methodology and legal theory. First, drawing on Leszek Nowak’s procedure of idealisation, three basic models of responses to a painful past are formulated. Then, distinct transitional justice values are attributed to each of the models. Finally, with the use of Jerzy Kmita’s concept of humanistic interpretation, the article seeks to conceptualize the way in which these values – among other factors, such as the need to uphold the rule of law or to preserve the stability of a democratic system – influence the choice of a model of transitional justice response. Thus, the aim of the presented models – which I described in more detail elsewhere (Krotoszyński 2017) – is to provide a sound theoretical basis for some of the fundamental claims formulated in the field of transitional justice.

Transitional Justice, State Accountability and the Crime of Aggression is a Successful Transitional Justice Process Possible without State Accountability?

Author(s): Jasmina Dreković / Language(s): English / Issue: 7/2016

The ICTY is considered to be an institution fulfilling the “legacy of Nuremberg” and, while this is true in many aspects, yet there is a difference. What is very often omitted is the fact that the main crimes that the Nazis were tried for were crimes against peace, better known as crimes of aggression. After Nuremberg and Tokyo, and until 2010 when the First Review Conference of the States Parties to the Rome Statute of the International Criminal Court was held, the international community had not been able to agree on how to define aggression as a criminal act. As a consequence of that, the ICTY did not possess jurisdiction over this crime. Due to the inability of the international community to define the crime of aggression, state accountability was lost from theorizations of transitional justice. This paper analyzes whether it is possible to have a successful transitional justice process without state accountability and whether the TJ process in Bosnia and Serbia failed because it took place in the gap between Nuremberg and the First Review Conference, when the crime of aggression was introduced once again.

TRANSITIONAL JUSTICE: LUSTRATION AND VETTING IN UKRAINE AND GEORGIA

Author(s): Gabriella Gricius / Language(s): English / Issue: 02/2019

Many of the world's conflicts today are self-sustaining and ongoing, making the application of transitional justice measures difficult. Particularly in Central and Eastern Europe, namely Georgia and Ukraine, both of which have experienced regime changes in the twenty-first century and implemented lustration and vetting measures - the question of whether or not transitional justice will be successfully utilized is very much still under debate. My research explores the relationship between lustration and vetting policies and corruption in Ukraine and Georgia. Past studies of corruption in these countries have focused the extent of state exploitation of the forms through which corruption is expressed such as political appointments, and protection from prosecution. This research, by contrast, aims to study the relationship that corruption has with the particular transitional justice measure of lustration and vetting.