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Transitional Justice + Cyberjustice = Justice2?

Published online by Cambridge University Press:  03 April 2017

Abstract

The increased use of information and communication technologies arguably represents important opportunities for the field of transitional justice, notably with respect to the optimization of existing mechanisms and the development of new ones. This article focuses on state-based and typically very formal mechanisms, namely international, internationalized and national criminal tribunals as well as truth and reconciliation commissions. These institutions often apply and engage with international law and operate with the involvement or under the close scrutiny of the international community. Moreover, they can be expected to be the first ones to embrace insights from the field of cyberjustice to a significant extent.

Enhancing access to and participation in such mechanisms, rendering them more cost-efficient and facilitating information-sharing would correspond to generally accepted norms relating to both international human rights and justice. However, cyberjustice initiatives may also entrench an already common ‘toolkit approach’ in the field of transitional justice. This article builds on recent critiques of the dominant legalistic and normatively driven transitional justice paradigm and argues that transitional justice + cyberjustice hence risks furthering a technocratic top-down approach that unduly limits creative solutions. By adopting a critical legal-pluralistic approach that conceives individuals as law-creative actors and that is cognizant of the close relationship between means and ends, the article imagines ways of benefiting from the promises of transitional justice + cyberjustice.

Type
INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2017 

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References

1 The perhaps somewhat puzzling title of this article – while not implying that the article itself relies on equations and logics derived from mathematics – ironically echoes the penchant for overly technical language that reserves transitional justice discourses to the so-called professional.

2 Benyekhlef, K., Amar, E. and Callipel, V., ‘ICT-Driven Strategies for Reforming Access to Justice Mechanisms in Developing Countries’, in Wouters, J. et al. (eds.), The World Bank Legal Review, Volume 6. Improving Delivery in Development: The Role of Voice, Social Contract, and Accountability (2015), 329–30Google Scholar.

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10 A few ideas concerning cyberjustice initiatives in the context of transitional justice are sketched in P. Kastner, ‘Cyberjustice in the Context of Transitional Justice’ (Cyberjustice Laboratory Working Paper No. 9), 2013, available at www.cyberjustice.ca/docs/WP009_TransitionnalJusticeAndCyberjustice_en.pdf.

11 For an introduction see K. Benyekhlef and F. Gélinas, Le règlement en ligne des conflits: Enjeux de la cyberjustice (2003).

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29 Aggregate data for 2005–2015 retrieved from the website of the International Telecommunication Union, available at www.itu.int/en/ITU-D/Statistics/Pages/stat/default.aspx.

30 For the use of mobile technology to deliver legal services, for instance by legal clinics in Latin America, see Benyekhlef et al., supra note 2, at 337.

31 ‘Mobile Phones Driving Facebook User Growth in Africa, Where Nigeria, South Africa and Kenya Rule’, Mail & Guardian Africa, 11 September 2015, available at mgafrica.com/article/2015-09-10-mobile-phones-driving-user-growth-in-africa-where-nigeria-south-africa-and-kenya-rule-facebook. See also ‘Internet Use on Mobile Phones in Africa Predicted to Increase 20-Fold’, The Guardian, 5 June 2014, available at www.theguardian.com/world/2014/jun/05/internet-use-mobile-phones-africa-predicted-increase-20-fold.

32 1998 Rome Statute of the International Criminal Court, 2187 UNTS 3, Preamble.

33 Ibid., Arts. 53(1)(c) and 53(2)(c).

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44 The collaborative approach suggested by Benyekhlef, Amar and Callipel in their discussion of the potential of cyberjustice initiatives in developing counties, an approach that ‘minimizes stakeholders’ resistance to technological changes and promotes their understanding and ownership of the project’ (Benyekhlef et al., supra note 2, at 334) certainly attempts to break with the common top-down approach that is part of the dominant development and transitional justice paradigm. However, as it is argued here, this approach might not challenge the paradigm radically enough.

45 Santos, B. de Sousa, ‘Three Metaphors for a New Conception of Law: The Frontier, the Baroque and the South’, (1995) 29 (4) Law & Society Review 569, at 580CrossRefGoogle Scholar. Or, as Robins and Wilson write regarding their ‘Participatory Action Research’ in the context of transitional justice, ‘[e]mancipatory research endeavours to side with the powerless and is explicitly political. It produces knowledge exposing the structures and conditions that create victims, and in turn empowers victims to enable social change’, Robins and Wilson, supra note 34, at 221.

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48 This paraphrases Macdonald's example, ‘I have a Swiss Army Knife. What can I do with it?’, Macdonald, supra note 4, at 225.

49 Ibid.

50 Note that there may also be unforeseen consequences, both positive and negative, that result from using a new tool. On such ‘unforeseen problems’, see ibid., at 228.

51 The only exception is the situation in Georgia, where the ICC Prosecutor was authorized in January 2016 to open an investigation proprio motu.

52 The only exception is a decision of the United Nations Security Council under Chapter VII of the UN Charter, which may trigger ICC jurisdiction over a specific situation even if the state in question has not accepted the ICC's jurisdiction.

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58 C.M. Cole, Performing South Africa's Truth Commission: Stages of Transition (2010), 6 (emphasis added). Moreover, the hearings of the TRC can be considered to have been much more important than the formal output of the Commission, i.e., its final report, written in a language that is not understood by many South Africans and prohibitively expensive for most of them. Ibid., at 7.

59 For a rich study of the ICTR and an analysis of the auditory dimensions of legal experiences more generally, see Parker, J., ‘The Soundscapes of Justice’, (2011) 20 (4) Griffith Law Review 962 CrossRefGoogle Scholar.

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61 I would like to thank Elisabeth Roy Trudel for this insight.

62 As an example, the chthonic, talmudic, later roman and islamic legal traditions have greatly influenced each other. See H.P. Glenn, Legal Traditions of the World: Sustainable Diversity in Law (2014), 127.

63 The suggestion to pursue cyberjustice initiatives through a ‘modular approach’, i.e., step-by-step, is therefore welcomed. Benyekhlef et al., supra note 2, at 330–1.

64 The familiarity with information and communication technologies of socially marginalized actors should, however, not be underestimated. For surprising findings regarding individuals who are homeless see Bouclin, S. and Denis-Boileau, M.-A., ‘La cyberjustice comme réponse aux besoins juridiques des personnes itinérants: son potentiel et ses embûches’, (2013) 31 Windsor Yearbook of Access to Justice 23 CrossRefGoogle Scholar.

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