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7719 results in Intersentia

Page 280 of 386

  • Education in the Shadow of History. Education, History Education, and Their Place in Historical Justice

  • from PART III - RESTORATIVE JUSTICE
    • By Elizabeth A. Cole, Senior Program Officer at the Center of Applied Research on Conflict at the United States Institute of Peace, Washington, US.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 285-302

  • Summary

    INTRODUCTION

    Although our understanding of the differing forms of repair for grave historical injustices continues to grow, education still does not figure prominently on the list of available remedies. Arguments for considering history education reform as a form of historical justice and a force for reconciliation have been made over the last decade – including by myself. The calls for history reform, however, generally focus on the content of history education, most often history textbooks.

    The idea that what is taught about other groups in national history textbooks (and, to a lesser extent, geography and literature textbooks) can be a cause of intergroup hatred and war dates back to just after World War I. Efforts to start an international organisation dedicated to analysing history textbooks and making recommendations for their reform led to the founding of the Georg Eckert Institute in Germany after World War II, and the formation of various bilateral commissions in Europe to do research on contested historical issues, publish their findings and then analyse and reform history textbooks. The reform of history textbooks to remove stereotypes and gross inaccuracies was an integral part of building peace and regionalisation in post-war Western Europe, as well as of the rehabilitation of (West) Germany and its process of public reckoning with the past beginning in the 1960s.

    In addition to calls by entrepreneurs of justice and reconciliation to make history education content reform part of reckoning with difficult pasts, there are more poignant calls not to forget school-based education in the search for justice, which lend legitimacy to the history education-justice-reconciliation nexus. This call comes from victims/survivors and their advocates in many parts of the world: even more commonly heard than calls for violent revenge – surprisingly – are requests from victims, or their descendants, that governments ‘convey the historical fact to the younger generation’. In this way survivors express their belief that it is morally important to include both the injustices themselves and also the histories of the victims and their contributions within the nation's history. A sampling includes the following.

  • European Influences upon English Civil Justice: Tempests or Gentle Breezes?

    • By Neil Andrews, professor of Civil Justice and Private Law, University of Cambridge
  • Edited by Anna Nylund, H. B. Krans
  • Book:
    The European Union and National Civil Procedure
    Published by:
    Intersentia
    Published online:
    19 December 2017
    Print publication:
    29 July 2016, pp 31-46

  • Summary

    Introduction

    At any rate in legal matters, adverse weather is not confined to that approaching from the West, that is, from the Atlantic Ocean, Bristol Channel and the Irish Sea. European civil justice initiatives continue to sweep across the North Sea to London (the seat of the UK Parliament). These initiatives take the form of EU Regulations, or Directives, or Recommendations issued by the European Union authorities, or European Court of Justice case law, or the jurisprudence of the Strasbourg court on the European Convention on Human Rights.

    But how bad is it? Is this easterly weather system nothing more than intermittent gentle breezes or have there been severe storms? The answer is that weather from the East has mostly involved gentle breezes (so gentle as almost to escape notice). But (on some occasions) easterly blasts have exceeded gale force 10: see discussion in section III of the European Court of Justice's ban on anti-suit injunctions and examination in section VII of the Constitutional Reform Act 2005 where the British Parliament created a new United Kingdom Supreme Court, to secure complete separation of functions between the legislature and judicial system, and to ensure that the Lord Chancellor (that is, the Minister of Justice) can no longer sit as a judge. These tempests have changed the landscape of British law and of its institutions and remedies.

    European Statutory Changes to English Civil Procedure

    Six statutory projects within European Union law have been mandatorily absorbed within the United Kingdom, and other Member States, under the authority of the EU legal framework. Those changes can be listed as follows.

    (1) Undoubtedly the most significant of these measures is the system for allocation of jurisdiction and the mutual recognition and enforcement of judgments under the Brussels Convention (1968), which was later adopted by the UK Parliament (the Civil Jurisdiction and Judgments Act 1982), and later embodied as the Brussels I bis (Brussels recast) Regulation (2012). However, the Common Law system was disturbed by the European Court of Justice's ban on anti-suit injunctions vis-a-vis litigious conduct which constitutes a breach of a jurisdiction or arbitration clause (see the trilogy of cases discussed in section III).

  • Pacting the Law within Politics. Lessons from the International Criminal Court's First Investigations

  • from PART II - RETRIBUTIVE JUSTICE
    • By Kenneth A. Rodman, William R. Cotter Distinguished Teaching Professor of Government and the Director of the Oak Institute for the Study of International Human Rights at Colby College, USA.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 91-114

  • Summary

    INTRODUCTION

    During his term as the first Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo often said that the Court was part of the transitional process for societies emerging from mass violence and repression. What he meant by that seems to have evolved over time. Early in his tenure, he characterised his decision-making as part of a ‘dialogue between many actors’ with a ‘strategic dimension (…) [that] involves all the stakeholders’, suggesting a process of consultation and coordination with local and international efforts at conflict resolution and peace building. Later, he denied that his office was party to any peace negotiations and was part of transitional processes only in the sense that the prosecution of those most responsible for international crimes is indispensable to a lasting peace. And, as in a domestic criminal justice system, this is a legal obligation to which political actors must conform rather than something that could be accommodated to the agendas of others: ‘The Prosecutor's duty is to apply the law without bowing to political consideration, and I will not adjust my practices to political considerations. It is time for political actors to adjust to the law’.

    This approach to prosecutorial discretion is informed by the cosmopolitan values that animate the transnational network of nongovernmental organisations (NGOs) and international lawyers that are most supportive of the Court and were instrumental in its creation.3 It assumes that some wartime atrocities and human rights violations are so injurious to our common humanity that these practices should be removed from the realm of politics and treated as crimes. The ICC and its state parties have a consequent duty to ensure the prosecution of these crimes that should not be compromised by political factors, including peace processes. This position is based explicitly or implicitly on what Judith Shklar calls legalism, which she defines as ‘the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules’.4 From this perspective, the ICC represents the fulfilment of a vision for a just world order based on the globalisation of law while politics is disparaged as a defect to be removed if that vision is to be realised.

The European Union and National Civil Procedure
  • Edited by Anna Nylund, H. B. Krans
  • Published by:
    Intersentia
    Published online:
    19 December 2017
    Print publication:
    29 July 2016
  • A book series devoted to the common foundations of the European legal systems. The Ius Commune Europaeum series includes comparative legal studies as well as studies on the effect of treaties within national legal systems. All areas of the law are covered. The books are published in various European languages under the auspices of METRO, the Institute for Transnational Legal Research at Maastricht University. This book discusses the impact of EU law on selected national legal systems. The authors analyse how the civil procedure system of their country has reacted to increasing Europeanisation and influence of EU law. They identify significant changes and disseminate the reasons for particular developments and the further implications of EU law on the civil procedure. Europe is in a period of increasing Europeanisation of civil procedure. Procedural elements of EU law are based on decentralised enforcement, leaving enforcement and procedural issues to the Member States. Consequently, there is vast amount of EU case law that is relevant for national procedural law. The supremacy of EU law and, inter alia, the requirements of effectiveness and equivalence may be relevant for several topics of national civil procedural law, for example ex officio application of EU law, enforcement, insolvency proceedings, evidence, etc. Both EU legislation and doctrinal changes in EU case law touch upon various topics of the procedural law of the Member States. In a concluding chapter, a more comprehensive comparison between the countries represented in the book is made. Which doctrines, which pieces of legislation or features in legislation pose problems for national civil procedure? Are some legal systems or topics more prone to integrate European rules, and are others more resistant to changes? This book displays the Europeanisation of national civil procedure law and helps to understand this development from the perspective of Member States. "This publication is extremely interesting since it shows that the law of the European Union has an impact on national procedural law. Cross-fertilisation is indeed a very important tool." Marcel Storme, Honorary President of the International Association of Procedural Law

  • Polish Civil Proceedings: How Much Europeanised?

    • By Anna Piszcz, professor at the University of Białystok (Poland), Faculty of Law
  • Edited by Anna Nylund, H. B. Krans
  • Book:
    The European Union and National Civil Procedure
    Published by:
    Intersentia
    Published online:
    19 December 2017
    Print publication:
    29 July 2016, pp 115-130

  • Summary

    Introductory Ideas

    National procedural systems have always played an important role in enforcing European Union (EU) law. The details of these systems have differed substantially in different legal cultures and over time. The common elements that emerge in them are growing in number which can be associated with what is usually called ‘Europeanisation’. If a necessary impulse for domestic change is provided to countries by the EU, it is justified, however, to use names ‘EU-Europeanisation’ or ‘Unionisation’, as put directly by A. Lenschow. Largo sensu Europeanisation, on the other hand, is not limited to the EU-Europeanisation and EU effects on domestic developments. There may be other international impacts from other European fora. The impact of the European Court of Human Rights within European countries can be interpreted as an instance of largo sensu Europeanisation. In Poland, the European Convention of Human Rights was incorporated into laws in early 1990s. The influence of the Court interpreting the Convention on Polish laws can be seen in the introduction of the legal framework for the summons for injunctions against delays in proceedings in 2004 and its significant amendment in 2009. However, these changes are not going to be analysed in this chapter.

    ‘The EU represents a set of rules, an arena and a discursive framework for domestic actors,’ Lenschow writes, ‘in short a point of departure for impulses that flow top-down, horizontally and ‘round-about’ when impacting on the domestic level’.2 According to Bulmer and Radaelli, ‘Europeanisation is not simply about formal policy rules but about less tangible aspects, such as beliefs and values’. This chapter will focus on the top-down impact of the EU on civil proceedings, ie the penetration of the European dimension into national legal framework for civil proceedings in Poland. It will regard, first of all, the normative (formal) EU-Europeanisation as the process whereby domestic laws and regulations are adapted to conform to EU rules. The normative EU-Europeanisation refers to procedural laws, substantive laws as well as institutional design of administration of justice but the two latter are beyond the scope of this chapter. National law established by the Polish legislature, which is a part of the Polish legal system of a multi-centre nature (multilevel system), binding in domestic territory along with the directly applicable EU laws, is being Europeanised in a literal sense.

  • From Gacaca to Mato Oput. Pragmatism and Principles in Employing Traditional Dispute Resolution Mechanisms

  • from PART II - RETRIBUTIVE JUSTICE
    • By Barbara Oomen, Professor of Law, Utrecht University and Dean Roosevelt University College, Middelburg, the Netherlands.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 167-186

  • Summary

    INTRODUCTION

    In a speech given in February 2010, the Rwandan President Paul Kagame recapitulated the essence of delivering justice in post-genocide Rwanda for his international audience: the traditional gacaca, he held, had played an essential role where the formal judiciary had been destroyed, and had been able to meet the dual needs of dispensing justice and promoting reconciliation in a way that the formal courts could never have done. This ‘traditional Rwandan institution’, in the President's words, ‘was modernized to supplement classical judicial systems for trying genocide suspects and at the same time re-integrate offenders into communities that included genocide survivors’. As such, in his opinion, it formed an example of addressing the root causes of a conflict by combining universal values with home-grown solutions.

    The Rwandan gacaca, in many ways, serve as an example of a somewhat exotic but increasingly essential element of the ‘transitional justice toolbox’ as employed all over the world. Next to tribunals, truth commissions and a host of mechanisms for reparations, traditional dispute resolution mechanisms have been reinvigorated or even reinvented for the purpose of dispensing post-conflict justice in former colonies with a tradition of legal pluralism like East Timor, Sierra Leone, Rwanda and Burundi. For the purpose of this contribution, traditional dispute resolution mechanisms will be defined as local-level dispute resolution mechanisms that partly derive their legitimacy from an association with symbols, rituals and procedures considered to be uniquely local and tested over time.

    I will first show how these mechanisms have become increasingly important, arguably as an alternative to the increasingly globalised field of transitional justice. Their appeal, it seems, lies in two fields: that of pragmatism and that of principles. Pragmatists argue that these mechanisms are necessary to dispense any form of justice at all, and that they have a number of pragmatic advantages over other forms of trials: they are faster, cheaper and more readily accessible. In addition, proponents of a central role for traditional justice mechanisms in transitional justice also invoke a number of more principled arguments: the authentic, ‘home-grown’ character of these institutions enhances their legitimacy; these mechanisms contribute more to reconciliation; and thus they deliver a better type of justice.

  • Dealing with Organisations and Corporations

  • from PART II - RETRIBUTIVE JUSTICE
    • By Cedric Ryngaert, Professor of Public International Law and program leader of the Master Public International Law, Utrecht University, the Netherlands.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 187-202

  • Summary

    INTRODUCTION

    While it may be common knowledge that historical injustices are perpetrated by repressive governments, accepting this would require one to overlook the role that private organisations and corporations may play in those injustices. Although it is true that governments normally are the principal perpetrators of historical injustices, it is no less true that governments are in need of practical support to carry out their plans, support that is often provided by willing organisations and corporations (e.g., financing, supply of chemicals and weapons, building of infrastructure, exploitation of natural resources, etc.). These organised private actors do not commit historical injustices entirely on their own, but tend to conspire with, or assist, governments in committing the wrongs. The question then arises as to what acts can precisely engage these actors’ legal responsibility (liability), and how can they be held accountable.

    The role of private organisations and corporations in committing, or contributing to, historical wrongs has not been widely documented, since accountability for historical injustices has so far mainly, and even almost exclusively, focused on states and individual actors as principal perpetrators. The corporate social responsibility movement has admittedly drawn more attention to the role of corporations recently, but the step from mere allegations and moral repudiation to legal liability, which forms the basis for remedies in courts, has not fully been made. Often, evidence regarding the exact participation of the corporation in the governmental criminal enterprise is lacking. But more fundamentally, liability and complicity standards currently appear to be too undetermined to buttress a viable case in court. Does it suffice for the private entity to have simple knowledge of the crimes (about to be) committed by the government which they assist for that entity to be held liable, or is intent on the part of the entity required (in the sense of the entity specifically intending the criminal consequences to take place)?

    This chapter aims to discuss he corporate complicity standards that civil and criminal courts have grappled with since World War II. The contribution will mainly analyse relevant court cases arising under the US Alien Tort Claims Act (ATCA) – which allows claims against corporations for violations of ‘the law of nations’ – and cases brought against Nazi industrialists before Allied war crimes tribunals in post-war Germany.

Facing the Past
  • Amending Historical Injustices Through Instruments of Transitional Justice
  • Edited by Peter Malcontent
  • Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016
  • How do societies at the national and international level try to overcome historical injustices? What remedies did they develop to do justice to victims of large scale atrocities? And even more important: what have we learned from the implementation of these so-called instruments of transitional justice in practice? Lawyers, socials scientists and historians have published shelves full of books and articles on how to confront the past through international criminal tribunals, truth commissions, financial compensation schemes and other instruments of retributive/punitive and restorative justice. A serious problem continues to be that broad interdisciplinary accounts that include both categories of measures are still hardly available. With this volume a group of international experts in the field endeavors to fill this gap, and even more. By alternating historical overviews with critical assessments this volume does not only offer an extensive introduction to the world of transitional justice, but also food for thought concerning the effectiveness of the remedies it offers to face the past successfully. 'This synthetic volume is a comprehensive introduction to the various facets of the field of historical injustice of which transnational justice is its best known manifestation. This practical and thoughtful publication addresses critical aspects that challenge the goal of redressing the past as these are presented in scholarship, advocacy and policy. The book delves into questions from justice to ethics and to education and would be useful for students as well as policy makers.' Elazar Barkan, Columbia University'This is a superb reference work on Transitional Justice, covering nearly all of the general questions regarding the various mechanisms in its toolbox, and the combinations thereof, and including case studies and pending cases. It provides expert analyses of transitional justice in post-conflict, post-authoritarian, and democratic states, presenting problems and solutions. The subjects broadly range from apologies to corporate complicity, to America's self-proclaimed exceptionalism when it comes to confronting onerous chapters of its past. In recent years, a number of problematic cases have emerged that will require us to re-think the transitional justice toolbox - this volume offers a solid basis from which to depart'Nanci Adler, University of Amsterdam.

  • Interaction between European Law and Hungarian Civil Procedure Law

    • By Viktória Harsági, professor and Head of Department at Pázmány Péter Catholic University Faculty of Law, Department of Civil Procedure Law in Budapest
  • Edited by Anna Nylund, H. B. Krans
  • Book:
    The European Union and National Civil Procedure
    Published by:
    Intersentia
    Published online:
    19 December 2017
    Print publication:
    29 July 2016, pp 73-88

  • Summary

    Introduction

    The influence exerted by European Union civil procedure on the national laws of the Member States has been greatly influenced by the path the individual States had to follow in order to acquire full rights of membership. This does not only mean how much time the given States had to spend as a candidate country, but also whether before their entry they had become parties to such international agreements or organisations that had made it necessary for them or even required them to harmonise their national legal systems with those agreements. As an example one might mention admission into the Council of Europe and ratification of the European Convention on Human Rights, as a consequence of which some fundamental human rights also having an effect on the administration of justice (e.g. the principles of fair process or adversarial hearing) have become built into the national legal systems. Countries having joined the Hague Convention of 1965 on the Service of Court Documents or the Hague Convention of 1970 on the Taking of Evidence had become well-versed in applying rules that were later, even if with a changed content, to form part of regulations issued in the frames of European judicial cooperation. The greatest experience in the application of rules of European civil procedure law – while not being a member of the European Union – was afforded by participation in the Lugano Convention: The Convention concluded in 1988 was ratified by Austria in 1996 and Poland in 2000. However, in the case of Austria the application of the Lugano Convention only meant a mere two-year ‘advantage’, since following her accession to the European Union in 1995, beginning from 1998 she was able to apply the Brussels Convention. Poland had gained four years’ experience in the application of the common rules relating to the recognition and enforcement of court judgements prior to her accession to the European Union in 2004. The loser in this process was undoubtedly Hungary, which announced its intention to join the Lugano Convention in 1997, but having made the required statements and declarations, she failed to obtain support for her entry from the participating states.

  • The Curious Incident of the Dog in the Night-Time: Europeanisation of Civil Procedure in Sweden

    • By Anna Wallerman, received her LL.D. degree in 2015 from the University of Gothenburg
  • Edited by Anna Nylund, H. B. Krans
  • Book:
    The European Union and National Civil Procedure
    Published by:
    Intersentia
    Published online:
    19 December 2017
    Print publication:
    29 July 2016, pp 147-160

  • Summary

    ‘Is there any point to which you would wish to draw my attention?’

    ‘To the curious incident of the dog in the night-time.’

    ‘The dog did nothing in the night-time.’

    ‘That was the curious incident,’ remarked Sherlock Holmes.

    Introduction

    In the political discussion preceding Sweden's entry into the EU, and earlier that into the EEA, procedural law was largely left aside. No procedural consequences of EU membership appears to have been foreseen by the legislator. With the exception of a brief statement to the effect that Union law should be enforced in accordance with national procedural law, possible implications for domestic procedural rules were not even commented upon in the travaux préparatoires.

    As it is now firmly established that where substantive EU law rights are concerned, the so-called procedural autonomy of the Member States does not exclude EU law impact even on core issues of civil procedure in purely domestic disputes, it would be gratifying to be able to say that during the 20 years that Sweden has been a member of the Union, there has been an increased awareness of the procedural implications of EU law. Unfortunately, however, this does not appear to be the case. Instead, the depiction of the Europeanisation of civil procedure in Sweden is a story of a process halted before it started: of what might have happened, but did not; of what ought to have been done, but was omitted.

    The Swedish approach to implementation of EU law in the field of procedures and remedies is mostly a restrictive one. Clear obligations are complied with, but there is little evidence of loyalty going beyond the minimum requirements. European legal acts are typically implemented, but not considered as possible models for national reform beyond their immediate scope of application. Spillovers are rare; as are legislative and judicial attempts at proactivity or avoidance of fragmentation. The case law of the Court of Justice for the European Union (ECJ) is oft en overlooked or interpreted narrowly, and courts only occasionally consider the need for harmonious interpretation or setting aside of national procedural rules.

  • Governing through Repair. Historical Injustices and Indigenous Peoples in Canada

  • from PART III - RESTORATIVE JUSTICE
    • By Andrew Woolford, Professor and Criminology and Social Justice Research Coordinator, Department of Sociology, University of Manitoba, Winnipeg, Canada.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 303-320

  • Summary

    INTRODUCTION

    Facing the past in the context of settler colonialism presents a difficult challenge. Lacking a moment of rupture, such as the downfall of an authoritarian regime or the end of widespread violence, ‘transitional’ justice in settler societies is without a temporal focal point. There is no clear break with the past, which could potentially ignite new patterns of thought and action. Thus, historical justice in settler societies is hampered in its efforts to effect significant transformation because these societies are still embedded in colonial relations of rule.

    This is the case in Canada, where a long history of trying to ‘deal’ with the ‘Indian problem’ has seen many promises of justice devolve into renewed attempts at assimilation.2 Rather than guide Canadian society toward an accommodation with indigenous peoples’ desire to fashion contemporary communities out of distinct cultural milieux, transitional justice in Canada often seeks to better fit these peoples into the Canadian mosaic. In this chapter, multiple forms of Canadian transitional repair are assessed: land claims negotiations, self governance provisions, compensation, and the Truth and Reconciliation Commission for former residential school students. In all cases, the constitutive dimension of the repair process is highlighted; that is, emphasis is placed on the ways in which repair is deployed to better manage and incorporate indigenous peoples within a settler national framework. This will be referred to as ‘governing through repair’, adapting Jonathan Simon's notion of ‘governing through crime’ to illustrate the ways in which repair processes contribute to a broader project of governance.3 In addition, I will argue that Canadian repair processes are in danger of replicating rather than transitioning from the historical injustices of assimilative policy-making, paternalistic disregard, and liberal governance that have long defined indigenous and non-indigenous relations in Canada.

    GOVERNING THROUGH REPAIR

    Governance, in Foucauldian terms, refers to more than just the attempt to direct the behaviour of a population; it notes the often more subtle strategies, discourses, and techniques through which individual and group conduct is shaped and regulated. Jonathan Simon's concept of governing through crime, for example, registers how contemporary governments use crime and the fear of crime to legitimate their authority.

  • Conclusions and Outlook

    • By Bart Krans, full professor at the University of Leiden (chair for Private Law and Civil Procedure Law), Anna Nylund, professor at University of Tromsø – the Arctic University of Norway
  • Edited by Anna Nylund, H. B. Krans
  • Book:
    The European Union and National Civil Procedure
    Published by:
    Intersentia
    Published online:
    19 December 2017
    Print publication:
    29 July 2016, pp 161-170

  • Summary

    Impact, in Various Ways

    The first and clear conclusion from the papers in this book is far from surprising: law of the European Union has impact on national civil procedure. This might concern primary EU law, secondary EU law, case law, fundamental legal principles or soft law instruments. At the same time, there seems to be significant variation on several aspects of the impact of EU law on national civil procedure law. It appears that there is variation in the level of influence and in the way EU law has impact on national procedural systems. The various countries display considerable variation as to the extent of the influence both in terms of width and depth of the impact. In some countries, many different areas of civil procedure have undergone some change, while in others change is more limited in scope, or on certain areas even absent. Some national civil procedure systems have faced profound impact in some areas. While change in other systems has, at least so far, been limited to a much lower level of just concerns peripheral areas. In some of the countries studied, Europeanisation of EU law has met more resistance than in others. In this concluding chapter, we go into some general conclusions by analysing and comparing the various contributions.

    All of the papers are of course limited in length and scope. The particular viewpoint of contributors may perhaps be of influence on the various contributions. The scope of the book does not allow for a full picture of each of the countries. Within the boundaries of the limited scope of the findings of the various papers, some general conclusions and observations can be made.

    General Conclusions from the Papers

  • a. Variety in impact. The first conclusion, already stated, is clear and not unexpected: the impact of varies by Member State. In section 4 of this chapter, we will go into this.

  • b. Diminishing procedural autonomy. As a starting point, national civil procedure law is up to the Member States. It follows from the procedural autonomy that, in absence of EU law Member States are free to construct there procedural system as they deem fit.

  • The United States and Torture. The Politics of Transitional Ju

  • from PART IV - PENDING CASES
    • By David P. Forsythe, Emeritus University Professor and Charles J. Mach Distinguished Professor, Department of Political Science, University of Nebraska, Lincoln, USA.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 361-386

  • Summary

    INTRODUCTION

    Transitional justice (TJ) was designed for small and weak states emerging from authoritarian brutalities or armed conflicts, but it posed challenges for the United States even after the two terms of the Barack Obama Administration. In the aftermath of widespread mistreatment of enemy prisoners by the George W. Bush Administration, the Obama policy team tried to both change some policies and mostly push the issue of past accountability under the political rug. Bush's policies had led to torture, in some cases fatal torture, as well as inhumane treatment. Often there were also confused and shifting authorisations plus mostly lack of responsible oversight. This latter condition allowed detention and interrogation to spin out of control at places like the Abu Ghraib prison in Iraq after the US invasion of 2003. Bush's policies of prisoner abuse may not have been as broad and severe as elsewhere, e.g., under the Argentine junta in the late 1970s, but they were committed by the world's most powerful democracy and self-styled leader for human rights. The present analysis explains the factors at work that once again led the United States to preach human rights accountability for others but to engage in exceptionalism and exemptionalism for itself.

    The option of avoiding TJ measures was a reasonably well known policy option. It was chosen by Spain and Portugal after the end of brutal dictatorships. Both joined the Council of Europe, with its human rights norms and procedures, which served as the antechamber to the European Union with its own human rights norms and procedures. Thus these two countries conducted no special aspects of TJ but rather ‘moved on’ and locked themselves into regional arrangements that presumably guaranteed no back sliding into the degradations of the past. This was not a perfect solution, as Spain in the twenty-first century engaged in a delayed debate about TJ, in particular whether specific measures should be taken to reconsider atrocities in the Spanish civil war, 1936–1939, and the resulting Franco era of fascist rule, 1939–1975.

  • National and Hybrid Tribunals. Benefits and Challenges

  • from PART II - RETRIBUTIVE JUSTICE
    • By Brianne McGonigle Leyh, Assistant Professor, Netherlands Institute of Human Rights (SIM), Utrecht University, the Netherlands.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 115-138

  • Summary

    INTRODUCTION

    The origins of modern international criminal law date back to the military tribunals established after World War II. Although the Nuremberg and Tokyo trials have been largely criticised for the fact that they operated without precedent, the trials’ legacies have endured and their jurisprudence aided in the further development of international criminal law norms. To be sure, the lasting legacy of the Nuremberg and Tokyo trials is the assertion that individuals are subjects of international law and can be held criminally responsible for perpetrating war crimes and crimes against humanity. However, following the conclusion of the trials, there is a large gap in time between the Nuremberg and Tokyo military tribunals of the 1940s and the civilian ad hoc tribunals of the 1990s. The creation of these tribunals, under the auspices of the UN Security Council, was in response to atrocities that took place in the Balkans and Rwanda respectively. Their emergence ushered in a new era in international law and international criminal justice, whereby once again the international community has sought to hold individuals accountable for the violation of international crimes.

    The trials at the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) have not only held individuals accountable for international crimes, which arguably has helped to decrease tensions between opposing groups by steering clear of collective blaming, but have helped to build an historical record, thereby combating denialism and promoting truth. Furthermore, the jurisprudence from the international tribunals has helped to shape the future interpretation of violations of international criminal law. Some commentators argue that by virtue of their externality, international tribunals provide for an objective distance between those judging and those being judged, which allows for a normative message to be expressed.

    Following the establishment of the ICTY and ICTR in July of 1998 states drafted the Rome Statute, establishing the International Criminal Court (ICC). The Statute entered into force on 1 July 2002 and today one hundred and twenty three countries have ratified the treaty. The ICC, which prosecutes individuals alleged to have committed the most serious crimes of concern to the international community, is the only international criminal court that is permanent and whose jurisdiction is potentially universal.

  • Introduction

  • from PART I - TRANSITIONAL JUSTICE. WHAT'S IN THE NAME?
    • By Peter Malcontent, Assistant Professor, History of International Relations Department and program leader of the Master program International Relations in Historical Perspective, Utrecht University, the Netherlands.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 3-26

  • Summary

    AMENDING THE PAST. A NOVEL URGE?

    On 15 July 1999 hundreds of Christians concluded their three year reconciliation walk at the walls of Jerusalem's Old City where they apologised to Muslims, Jews and Orthodox Christians for the Crusaders’ bloody pillage of the city nine hundred years earlier. Although this act of atonement was rather extreme, it did not stand alone but was part of a growing urge, particularly in the West, to amend past injustices and atrocities.

    Already in 1988 United States President Ronald Reagan signed into law a bill that expressed the nation's apology for the internment of Japanese Americans during World War II. The act furthermore provided for financial compensation in the amount of 1.25 billion US dollars, a sum that was both acceptable to the government and satisfactory to the victims. In May 1997, President Clinton offered a formal apology to survivors of a forty-year study by the US Public Health Service that had sought to document the course of syphilis by withholding proven medical treatment from a group of African Americans suffering from this disease. Two weeks later his British colleague Tony Blair issued an apology for his country's role in the Irish Potato Famine in the nineteenth century, which caused the death of one million people. In a letter to the organisers of a weekend festival to commemorate the famine, Blair spoke of a ‘defining event in the history of Ireland and Britain that had left deep scars (…) and that still causes pain as we reflect on it today’.

    In France, President Jacques Chirac had already publicly recognised his country's responsibility for the deportation of thousands of Jews to Nazi death camps during the reign of the collaborationist Vichy regime in World War II. Later in 1998 he even apologised for the false arrest and conviction of the Jewish army captain Alfred Dreyfuss one century earlier. In an open letter to the families of Dreyfuss and Emile Zola, the famous author who himself was brought to trial after publicly accusing the government of conspiracy, President Chirac expressed deep remorse for the unlawful persecution of both men.

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