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Conclusions: a few thoughts

Strategic Models and Factors

Antonios E. Platsas

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The Harmonisation of National Legal Systems

Strategic Models and Factors

Antonios E. Platsas

This book offers a novel perspective on the leading concept of harmonisation, advocating the mutual benefits and practical utility of harmonised law. Theoretical models and factors for harmonisation are explored in detail. Antonios E. Platsas acknowledges a range of additional factors and presents harmonisation as a widely applicable and useful theory.
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Antonios E. Platsas

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Introduction to the Factors

Strategic Models and Factors

Antonios E. Platsas

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Andrea Breslin

This chapter explores the dynamic relationship between the practice of art and the aims of transitional justice. Different art forms, performance in particular, often play a role in formal transitional justice mechanisms, but what about art itself fulfilling some of the relevant functions, such as truth-seeking, memorialization, and reconciliation? As to the question of why art would be required outside of the formal processes, there are a number of situations in which art can play a role. In some cases art can fill a vacuum, in other situations it can complement existing mechanisms and sometimes art can open the space for official initiatives by beginning the difficult discussions and creating the demand for formalised justice. The different situations are illustrated in this chapter, followed by a thematic exploration of the value that different art practices can contribute to the aims of transitional justice, through truth-seeking, opening a space for marginalized voices, addressing social challenges and reasserting the rights that are routinely repressed prior to the period of transition. Ownership and consumption of the art is also addressed, along with some of the risks inherent in opening up these contentious spaces during times of transition. Art; truth-seeking; marginalized voices; social challenges; rights

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Catherine Harwood

In recent decades, the United Nations has established many international commissions of inquiry (‘commissions’) to investigate alleged grave violations of human rights and humanitarian law and international crimes. These non-judicial fact-finding bodies issue findings of violations and propose recommendations for corrective responses. This chapter identifies and critically analyses the contributions of these commissions to transitional justice processes. Originally conceived as facilitators of international dispute resolution, commissions have become part of the UN’s toolkit of responses to situations of mass atrocity. An analysis of commissions’ practice shows that transitional justice principles have accompanied this functional evolution. The mandates of several commissions have squarely focused on concepts associated with transitional justice processes, including truth, justice and accountability. Numerous commissions have been established specifically to ensure that those responsible for violations are held accountable. Commissions’ investigations can shine a bright light onto situations of concern and act as a forum and a platform for victims to share their experiences. Their reports frequently recommend truth-seeking, accountability and reparative mechanisms. Yet the degree to which recommendations are implemented is influenced by several factors, notably the political will of stakeholders. There have been some notable successes as well as missed opportunities to seek truth and accountability. Ultimately, the extent to which commissions may promote and produce transitional justice is delimited by their institutional form, the wider political milieu, and the philosophy of transitional justice itself. International commissions of inquiry; United Nations; truth-seeking; accountability

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Joanna R. Quinn

The chapter traces the development of transitional justice (TJ), focusing on four of the most widely used instruments of TJ (criminal prosecutions, reparations, amnesty and truth-telling). It then outlines the development of TJ approaches and instruments around the world. Those same four commonly used instruments are utilized as a means of comparing experiences across continents. Finally, the chapter considers the ‘growing pains’ of the scholarship and practice of transitional justice. The questions raised have arisen because the field has matured to the extent that critical questions can and must be asked. Six of these are considered: deepening international engagement; the effect of contagion; simultaneity and the problems it brings; the call to address economic, social and cultural rights; the limits of what transitional justice can actually address; and the parameters of the transition in question. Origins and development of transitional justice; Europe; Latin America; Sub-Saharan Africa; Asia.

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William Schabas

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Naomi Roht-Arriaza

Guatemala would seem to be the poster child for transitional justice. After the peace process itself and the resulting accords came the creation of not one but two truth commissions, a program of reparations and prosecutions for crimes arising from the period of internal armed conflict, including for forced disappearances, massacres and genocide. Guatemala was the first country to put its own former head of state, José Efrain R'os Montt, on trial for genocide, and the first to try crimes of wartime sexual slavery in its own courts. The last decades have also featured attempts at institutional reform, including changes in the judiciary and security forces, and constitutional and governance reform. This chapter describes and evaluates those efforts and the lessons they provide regarding the possibilities, pitfalls and limits to transitional justice. Guatemala; truth-seeking; reparations; prosecutions; guarantees of non-repetition

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James Gallen

This chapter examines the relationship of the International Criminal Court (ICC) and transitional justice. It considers claims of how prosecutions contribute to the pursuit of accountability under different conceptions of transitional justice. Second, it examines the Rome Statute of the ICC and the different evaluative frameworks that can be used to assess its function. Third, it reviews the existing practice of the ICC, including the role of the Office of the Prosecutor in Africa, the Court’s response to victims and its use of reparations. The chapter also argues that, while the Rome Statute contains innovative provisions for victim participation and reparations to victims, realizing the potential of these provisions remains contingent on efficient and responsive management by the Court of the needs of victims, and depends on alignment and political and financial support from the international community. A final section concludes by noting that, while the ICC is a critical part of the international legal architecture for transitional justice, its effective pursuit of values of international criminal law and transitional justice will be achieved not only through the development of its jurisprudence, but also through careful negotiation of and coordination with international and domestic politics. International Criminal Court; prosecutions; accountability; victims; reparations