Dept. of History / Centre for Peace Studies / Arts and Science Programme McMaster University, Hamilton, Canada
Abstract: This paper examines the articulation of Ubuntu as a traditional African form of
justice and how it was deployed to legitimize the Transition and Reconciliation Commission (TRC), as a restorative transitional justice model within and beyond post-apartheid South Africa. Transitional justice here refers to judicial and non-judicial measures implemented to redress legacies of human rights abuses in the aftermath of conflict and repression. It seeks recognition and justice for victims while promoting peace and reconciliation. In the final analysis, it is observed that the deployment of ubuntu in both the context of the TRC and socioeconomic rights jurisprudence represents a vernacularisation process that has served to legitimize universal human rights in South Africa. It also marks a distinctive South African and African normative contribution to the discourse on human dignity and the global fulfilment of universal human rights.
such the emphasis here is that there is no common legal accord outlawing amnesty and offenders who committed lesser crimes will be granted amnesty.
2. LITERATURE REVIEW
Critics of Transitional justice abounds, from both within and outside the discipline. Justice Goldstone Richard, 1 notes that "full justice consists of the trial of the, perpetrator and, if found guilty, adequate punishment." Hence justice as defined by Justice Goldstone Richard refers to justice as being retributive justice. 2 Mallinder, however argues that justice can in like manner take the form of restorative justice. It is paramount to note that denial of justice and its associated effect depends in large part on how justice is defined. Chief Justice Bart Katureebe, 3 a Ugandan jurist of remarkable intellectual prowess offers great insight into the amnesty versus victims’ rights debate in the recent case of Uganda v. Thomas Kwoyelo, where he arrived at the conclusion that there is no uniform standard or practice in respect of amnesties and as such each country determines the approach it should take in its applicability to address its own unique conflict situation. Mani, 4 writing on beyond retribution suggests that peace building through amnesty cannot achieve or redress the actual needs of victims of conflict. Peace activists’ have more often centred on the reconstruction of institutions of the state as against looking into questions of victims’ rights to justice, which more often underscore conflicts in several countries.
Relative to CICIG’s truth, acknowledgment, and retribution functions, three main takeaways can be observed, respectively: First, Guatemala requires greater sustainability built into its justice and security sectors. Secondly, CICIG and/or the Guatemalan justice sector need to better connect their justice-seeking actions with victims of injustice in order to see justice both recognized and acknowledged as a means of redeveloping trust and cooperation within Guatemalan society. And finally, a transnational strategy (or strategies) aimed at both the supply and demand of Latin American-procured and trafficked drugs is required for any tangible, long-term success at reducing violence, human rights violations, and blockages to transitional justice successes over the long term. By addressing each of these issues that CICIG has encountered, the institution would be better able to effect procedural justice, especially through enhanced responsiveness to the victims of injustice. Also, one must also remember that temporality and responsiveness usually go hand in hand. In this instance, if CICIG fails to affect sustainable transitional justice outcomes now, then CICIG as a “follow-up” truth commission to Guatemala’s two truth commissions from the late 1990s will also likely fail to affect closure. Thus, a failure to achieve responsiveness theoretically has directly negative repercussions concerning the institution’s capacity to affect temporality. As a result, the vehicles, as it were, used to achieve procedural justice would be effectively sunk. To remind the reader of my theoretical supposition, a lack of procedural justice, then, negatively impacts the potential for positive transitional justice outcomes.
of past abuse. They typically distribute a mix of material and symbolic beneﬁts to victims, beneﬁts that may include ﬁnancial compensation and ofﬁcial apologies.” Reparations programs have been undertaken by many post-conflict and transitional societies, Huyse and Salter (2008) and ICTJ (2016) pointed to Sierra Leone after its period of unrest ended in 1999, which anointed the National Commission for Social Action (NaCSA) the agency in charge of implementing reparations programs, it has received government grants as well as aid from the international community, but it has still suffered from a lack of funds in attempting to compensate victims. Sierra Leone has engaged in reparations programs, such as the President’s formal apology to the women impacted by the violence as a symbolic compensation, but those programs, as ICTJ (2016) pointed out, were only a portion of the country’s transitional justice endeavor. The process of repaying victims for the pain and suffering they endured was tied to truth commissions and eventual prosecutions. While there was a large degree of amnesty granted through the truth commissions, the establishment of The Special Court for Sierra Leone in 2002 began a process which, as of 2011, had resulted in eight convictions. Several countries have initiated reparations plans. Following a recommendation by the Truth and Reconciliation Commission, Peru began to institute a reparations program for victims in 2005, and Timor-Leste has approved recovery and reparations programs, although little progress has been made. It is important to link reparations with
As will be evident from our results, political design does not appear to reign supreme as the mechanism for post-conflict peace. We first simulate a policy package in which political design has primacy in the peace strategy and which might be thought of as ‘business as usual’. The political design is for a unitary state which adopts sufficiently democratic structures to avoid severe autocracy, and holds elections in the third post- conflict year. External peacekeeping expenditure is set at the mean for post-conflict situations, but economic issues are relegated to the back-burner so that the economy is stagnant. All other variables are set at the same levels as for our other simulations. The risk of reversion to conflict within the first decade is predicted to be astonishingly high, at 75.4%. We then investigate the risk of a package which might be thought of as ‘politics supported’. In this package the political variables are the same as in the ‘business as usual package’ package, but external military assistance and economic recovery are also given priority. Spending on external military peacekeeping is set at four times the average and the economy is given priority, achieving growth of 10% per year. The risk of conflict reversion falls dramatically to 36.7%. The decline in risk is achieved by the combination of policies. Economic growth without military intervention would bring risks down quite
Not surprisingly, bank collapses are frequent in conflict-affected countries, including both privatized banks and new banks. Fourteen of Bosnia and Herzegovina’s banks have collapsed since the end of the war in 1995, including the Sarajevo-based BH Banka which had a number of NGO and donor accounts, and whose owner has now been charged with fraud. In 2000 Mozambique’s BCM and Austral reported losses for 1999 of US$ 127 million and US$ 50 million respectively, leaving their reserves below the Bank of Mozambique’s minimum required levels (EIU 2000, ROM and IMF 1999). Bank collapses threaten macro-economic stability since the contraction of lending induces recession—the Bank of Mozambique is currently injecting liquidity in response to the BCM and Austral crises—and as the exchange rate comes under pressure from loss of confidence in the domestic financial system. The social costs are large—Diwan (1999) finds that labour bears a disproportionate share of the cost while taxpayers partially compensate capital—and financial distress contributed directly to economic crisis and social breakdown in Albania and Indonesia (Bezemer 2001). 11 The high fiscal
Thus, MF cannot claim for the state the right to specify the meaning of a sentence. If a typical ex-convict, years after being released from prison, can be expected to feel like she is ―still being punished‖ through her inability to find a job and her loss of previous social relations, a communicative theory of punishment must credit that interpretation of her punishment if it is reasonable. To the extent that the state has knowledge of or could reasonably foresee these post-prison outcomes, the ex-convict‘s interpretation begins to look increasingly reasonable. We suspect that most people share the intuition that when the state causes negative post-prison outcomes through the method of punishment it selects, it is reasonable for offenders to believe that the state is continuing to communicate its condemnation. 104 Ignoring offenders‘ reasonable interpretations of their punishments thus sacrifices one of the primary advantages that the CCR may have over competing theories—its commitment to treating convicts as responsible moral agents.
mobilisation of remote Nepalese communities could foster more promising change than narrow legal reforms, collective action in Tunisia did not fuel the much hoped for social change and participation in the political process for marginalised youth. Moreover, the example of Bosnia-Herzegovina illustrates the perverse effects of top-down generated reform processes that lead to a lack of trust and ultimately a loss of legitimacy in the institutions and their leadership. The increasing distrust, however, cannot simply be solved by introducing yet another layer of legal instruments to cope with the intricate social and economic problems that emerge after conflict or regime change. Although this article discussed only three cases, these can serve as a catalyst for further analysis with additional in-depth comparative work to map promising strategies for marginalized populations in post-conflict settings. It is also an incentive to look beyond the widely hailed liberal approach in recent years and emphasise the need for social and economic change at the structural level.
This article is based on the assumption that norms can help better understand one of the expressivist aims of transitional justice, that of building a new narrative about the past. The main argument is that focus groups, as an interactive method of inquiry, are well suited to investigating how this “judicial” narrative interacts with the official and dominant war narrative in Croatia. Focus groups are more adept at this than other methodological approaches since they can effectively reflect independence of opinion, they lead to more truthful answers through spontaneity, they effectively probe taken- for-granted concepts and they can more easily overcome distrust in post-conflict societies, especially with ex-combatants. The approach faces new challenges in such a situation since recruitment problems, insider/outsider status and post-traumatic stress disorder (PTSD), among other ethical concerns, present problems that often arise due to the group process. The powerful and unpredictable effect of the group dynamic can, therefore, provide a deep exploration of social norms, but it can also cause significant upset among participants. In this instance the methodology explores how widely accepted the war narrative is, how it is constructed and how important the public believes it is not to question it.
What is particularly striking about these studies is that, by virtue of their design, one could expect a fair amount of dis- agreement. When two people are given a skeletal description of an offense, as most of these studies provide, both of the persons are likely to visualize a “story” of the offense, yet they may well “fill in” different details to complete the picture. Demographic differences could prompt subjects to fill in different details, re- flecting the different life experiences from which the details are drawn. If subjects visualize slightly different stories, one would expect them to give slightly different assessments of relative seriousness, even if they in fact agreed in their intuitive judg- ments. This potential for exaggerating the extent of disagree- ment becomes greater as the crime descriptions become more skeletal, and is at its worst when researchers use crime labels rather than factual descriptions, as in some of the studies re- ported above, because different people are quite likely to visual- ize different stories when given just the bare offense label. De- spite this serious potential to underestimate the extent of agreement, the studies consistently show a significant level of agreement on intuitions of justice, even across demographics.
punishment must be greater the greater the gain from the crime, but it needn't be that the greater the gain from the offence the greater the immorality of it. The crimes owed the worst punishments on this account will be those from which personal utility for the criminal is highest, not those most grave or heinous. And for this reason if magnitude of offence in rules 2 and 3 is determined by degree of immorality then these rules are in conflict with rule 1. In the absence of a decision procedure for resolving such conflicts it is unclear whether SP is met. Again rule 10 may come into conflict with 3 if 3 requires that we attach the lesser penalty to the less wrong offence, since doing this may be waived pour encourager les autres. And does rule 11 require that Kant's convicted murderer from the island community about to disband should be set free? In
International law does not demand the prosecution of every individual implicated in the atroci- ties, although it does demand that all stand equal in front of the law and that prosecutions are not arbitrary or implemented in a discriminating manner. A symbolic or representative number of prosecutions of those most responsible may satisfy international obligations. As Kritz ar- gues, it may be useful to distinguish between different categories of offences: 1) the leaders who gave the orders to commit war crimes and those who actually carried out the worst of- fences, which is the smallest category numerically; 2) those who perpetrated abuses not rising to the first category; and 3) those whose offences were minimal. Punishment will then be de- cided accordingly. 253 The RPF government in Rwanda used a similar strategy after the genocide in 1994, where it divided the perpetrators into four categories, where category one offenders are tried at the ad hoc criminal tribunal ICTR or a court of first instance, while offenders in category two and three are tried in institutionalized traditional justice courts (the Gacaca courts), while offenders in category four are not punished. 254 Rwanda’s strategy can however hardly be recommended, as the RPF chose to prosecute almost everybody involved in the genocide, a strategy far to extensive for its weak and limited national judicial system. In most cases, given the often large number of alleged perpetrators combined with limited capacity of national and international courts, trials will often be limited to category one and parts of cate- gory two. As argued by Kritz, offenders in category one will “need to be held accountable for prosecu- tion to provide a comprehensive sense of justice”. 255 Categorizing the others may be more difficult as many of the perpetrators are victims themselves, having been abducted into the ranks of the LRA and forces to be part of the atrocities. For the same reason, many NGOs and traditional leaders sin Uganda support that the Amnesty Act remains in effect and that traditional justice mechanisms are promoted to welcome home former abductees 256 .
Atrocities cast a long shadow in societies that have endured the pain. Criminal trials alone, even with ambitious outreach programs, are – at best – only part of what is needed to grapple with past atrocities. Those of us involved in interna- tional criminal justice, whether as scholars or practitioners, need to be more humble about the ability of criminal trials to ever adequately address the wounds and needs of those who have suffered genocide, war crimes, or crimes against human- ity. At the same time, we also need to be bolder in understanding that it is possible to hold fair trials – to do justice in individual cases – while also contributing more tangibly to justice on the ground in post-conflict societies through sensitive out- reach to local communities and through capacity-building aimed at both domestic justice systems and civil society. Scholars can contribute to justice on the ground by doing valuable empirical research on the domestic impacts of international and hybrid courts and of other accountability mechanisms. Practitioners can help by thinking more systematically and creatively about how international and hybrid courts can advance their fundamental goal of justice through fair trials while also contributing more significantly to justice on the ground. Governments and orga- nizations can help by providing explicit funding and support for outreach and capacity-building so it is not simply cobbled together on a shoestring. If we all give more attention to the complex needs, struggles, and hopes of the people and countries recovering from atrocities, we could make genuine progress in advanc- ing justice on the ground in the challenging years ahead.
Great Plains Quarterly Great Plains Studies, Center for
Vengeance Without Justice, Injustice Without Retribution The Vengeance Without Justice, Injustice Without Retribution The Afro-American Council’s Struggle Against Racial Violence Afro-American Council’s Struggle Against Racial Violence Shawn Leigh Alexander
According to this gloomy situation that looks like a renewal of the nightmare of sectarian strife in 2006, the Minister of Justice announced on 23/10/2013 that he accomplished the two draft laws of “Jaafari personal status” and “Jaafari judiciary” that strengthen sectarian divisions within the society and in the formations of the judicial power, contradict with the provisions of the constitution, and target shredding the unity of national legislation that was strengthened over the decades by the Personal Status Law No. 188 of 1959, which had a positive impact on the consolidation of civic peace and strengthen the unity of the social fabric through intermarriage among sects, and even among different religions and various ethnicities, in addition to protect the rights of women in marriage, divorce, custody and inheritance, based on the principles of Islamic law that is most favorable to the spirit of the current time, and most of its provisions are derived from the Jaafari jurisprudence that Minister of Justice is claiming to defend it.
Material outcomes and payoffs are certainly a crucial factor in determining preferences and decisions. Yet, numerous studies indicate that the process leading to an outcome (or to one’s choice between outcomes) can also be a key influence. For example, there is a large body of work on procedural justice which supports the premise that process satisfaction is an important ingredient of human motivation. Thibaut and Walker (1975) and Tyler (1988, 1990) have argued that relational issues may dominate definitions of justice and that procedural satisfaction may be as important as outcome satisfaction. Disputant satisfaction is highest when the process seems fair and when people feel that they have had an opportunity to be heard (voice), and have had a hand in shaping the outcome. Evidence from the field is presented by Kitzmann and Emery (1993), who examine child custody decisions reached using different methods. While the fathers almost invariably lost in either case, they felt much better about the situation when they felt they had been treated reasonably well by the process.
be considered a justificatory theory of punishment, and that it should instead be considered a linguistic expression of an evolutionarily ancient psychological predisposition to punish.
2. What is Punishment?
Philosophical interest in punishment usually stops at legal punishment. Legal punishment is state-administered, and is delivered by penal institutions such as the criminal justice system. Plainly, however, not all punishment is legal. Parents punish misbehaving children, and teachers punish disruptive students. Across both legal and non-legal contexts, punishment can be defined as the intentional imposition of some sort of cost, hardship or burden in response to a believed wrongful act or omission, as an expression of condemnation or censure of that wrongful act or omission. 9 For scientific purposes, however, this definition comprises an uneasy mixture of behavioural and psychological criteria. Nakao and Machery define punishment in more general terms, as “any action that harms another organism, where that action is elicited by some specific harmful action (or trait) performed by the punished organism.” 10 From a biological point of view, this definition has the advantage of applying to both humans and non-human species. But it has the disadvantage of including actions that do not intuitively count as punishment, such as self- defence.
benefits from subjecting the offender to control by the state must be viewed as presenting opportunities for social efforts to derive benefit from the presence of the offender in the correctional system—not the reason for state control of the offender. To make these consequential concerns the justifications for punishment would necessarily involve using the offender for social benefit. This would necessarily diminish the offenders’ autonomy. The offender should be punished because he or she deserves to be punished for choosing to violate an official rule of behavior. To punish the offender because he or she needs to be rehabilitated or because the offender can be made to be an example to instruct others, involves using the offender for some purpose. Retributive punishment is based on human autonomy and respect for the individual as a rational actor obligated to conform to the law. The law says “do not do x” or you will be “punished by the penalty y.” When the offender chooses to do “x,” he is actually choosing to be “punished by penalty y.” The basic principle is simple: when an offender has violated rules or laws, the offender deserves to be punished because it is necessary for justice to be reestablished; moreover, the offender has to be punished in proportion to the severity of the wrongdoing. 72
This would hold true even if it were somehow possible to imprison a corporation. From a retributive point of view, the problem is not that corporations are too big to jail but rather that they are too inhuman to feel. To cripple a corporation with, for example, a massive fine and to say, “Take that, Acme Corp, you got what you deserved. How do you like them apples?” is no more coherent than, after kicking the chair over which one has stumbled in the night, telling the chair that the blow better have hurt. To use a different analogy, attempting to mete out retribution to a corporation might be akin to carrying out the death penalty for retributive reasons on a person who is insane and incapable of understanding what is happening. 63
Peer reviewers Kim McQuay (Asia Foundation) and Rick Messick (World Bank) provided excellent comments. Mirza Hassan (BRAC University) was involved in initial discussion and field visits. He also provided helpful comments on initial drafts. The staff of the Madaripur Legal Aid Association MLAA and the staff of Bangladesh Legal Aid and Services Trust (BLAST) generously allowed the research team to observe their efforts in the field. Discussions with a number of persons including officers in the Local Government Division, Fazlul Huq (MLAA), Taslimur Rahman and staff of the Bangladesh Legal Aid and Services Trust, Dr. Kamal Hossain (Kamal Hossain Associates), Sara Hossain (Supreme Court Lawyer), Jesmul Hasan (formerly DFID Bangladesh), Christian Raitz (European Union), Jerome Sayer and Carol Mercado (Asia Foundation) Faustina Pereira (BRAC), Sanjay Upadhyaya (Advocate, Supreme Court of India) Xian Zhu, Karin Kemper, Junaid Ahmad, Khurshid Alam, Saku Akmeemana, Seemeen Saadat, Zahed Khan and Zahid Hussain (World Bank), Shekhar Singh (Centre for Equity Studies, New Delhi), Abul Hossain (PPRC) the staff of Ain-o-Shalish Kendro and the UNDP Access to Justice team have enriched this paper. Abul Hossain also coordinated the qualitative field-work, Faaria Islam conducted