Transitional Justice (LAW-795TJ-001)
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Course Overview: In virtually every region of the globe, societies emerging from extended periods of armed conflict and repressive governance have confronted the question of how they should address a legacy of grave violations of human rights and humanitarian law. In some instances, mass atrocities have given rise to prosecutions before international criminal tribunals; in many cases, societies emerging from periods of sweeping violence have adopted their own programs of transitional justice. Although “transitional justice” has not been defined consistently, the scholar who coined the phrase has defined it as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes,” while the United Nations Secretary-General has defined transitional justice (TJ) as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” In the late 1980s-early 1990s, as myriad countries emerged from authoritarian rule and undertook programs of retrospective justice, TJ became a central preoccupations of the global human rights movement and emerged as a field of law, policy, diplomacy, and inter-disciplinary scholarship. At the level of front-line practice, societies confronting their legacies of repressive governance typically faced agonizing dilemmas. How, for example, should they confront human rights violations of the prior regime without triggering a destabilizing backlash that might derail an already fragile democracy? In the United Nations, various initiatives have sought to systematize the core elements of TJ practice—criminal prosecutions, truth commissions, reparations and guarantees of non-recurrence—while offering guidance to countries grappling with the often-agonizing dilemmas associated with TJ. These and other initiatives have given rise to further debates and critiques, including the charge that they represent a “checklist” approach to dilemmas that are far to complex and diverse to lend themselves to a universally appropriate set of responses. This seminar explores the core debates and dilemmas associated with TJ, using a series of case studies to illuminate critical issues such as: Under what circumstances are amnesties for atrocious crimes permissible? Who should provide the answer? Under what circumstances can international tribunals and commissions advance goals associated with transitional justice?
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First Class Readings
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