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Civil Rights Trials as Transitional Justice

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2 Responses

  1. Patrick S. O'Donnell says:

    These comments are made not having read (had access to) the article mentioned, so Brannon or others might have something to say in response that takes account of Cochran’s article.

    This may be a suggestive analogy for some purposes (is it federal law in particular that plays the role of international law?) but I wonder if we cannot still locate the legal rationale for these trials within the usual purposes and boundaries of our criminal justice system (such as it ought to be and such as it is), as simply fulfilling the conventional purposes of punishment in a rule-of-law state. Would we characterize, for example, the “pre-transitional” period as one characterized by the absence of the “rule-of-law?” In transitional periods, the problem of illegality is often pervasive (as Ruti Teitel writes, ‘In these extraordinary periods…rule-of-law norms do not constitute universals.’): where is the corresponding similarity or analogy?

    Do these civil rights trials really present us with the “agonizing” questions and dilemmas faced by affected societies during transitional periods, to wit: “Whether to punish or to amnesty? Whether punishment is a backward-looking exercise in retribution or an expression of the rule of law? Who properly bears responsibility for past repression? To what extent is responsibility for repression appropriate to the individual, as opposed to the collective, the regime, even the entire society?” Now while I can imagine these questions being entertained by socio-legal scholars or legal theorists, I don’t think they are seriously raised or considered by the relevant parties or significant sectors of the public in cases like that of Bobby Frank Cherry. The argument from impunity is not absent in “ordinary” times. Moreover, however repugnant the crimes, these cases don’t seem to suggest anything comparable to “crimes against humanity” (perhaps in a figurative sense) that are often the focus in transitional periods and that accounts for their “timeless prosecutions.” Is there anything akin to what Jon Elster terms “pure political justice” (e.g., unilateral decisions by the executive branch designating wrongdoers without possibility of appeal or show trials or ‘victor’s justice’) during periods of transitional justice?

    While I can understand the lustration anaology, what compares to the “truth commissions” found alongside conventional criminal justice mechanisms in periods of transition? And reparations? The prospects here seem dim to me (although I suppose if you want to characterize affirmative action programs under this heading that might serve as an example).

    Finally, as Elster notes, principles of due process are “routinely violated in transitional justice” (e.g. cf. the resort to the gacaca courts in Rwanda; this has been one of the primary concerns evidenced in the work of Kevin Jon Heller who blogs at Opinio Juris).

    References: Ruti G. Teitel, Transitional Justice (New York: Oxford University Press, 2000), and Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge, UK: Cambridge University Press, 2004).

  2. Transitional is one context enchances legitimacy, not so in another says:

    Perhaps you could comment on the difference between trying a domestic cold case with the same legal system (differen legal regime) that has been in place and trying a former authoritarian who was immunized under the domestic law at the time of the commission of his “crimes” in an international tribunal that applies ad hoc, ex post facto law in order to acheive a political end that benefits powers external to that nation.

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