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Symbols and Narratives of Justice

In this blog post we will discuss the article by Bennett, W. Lance og Alexandra Segerberg (2012) called “The Logic of Connective Action: Digital media and the personalization of contentious politics”. Out from this article we will take a look at the influence social media has on the way we discuss politics with each other and how it has changed the way politicians conduct them self in the public arena. We will also look at how social media and online news media played a role in some of the recent conflicts and demonstrations we have seen around the world. In the last part of the blog post we will take a look at the digitally networking action (DNA) and how it has helped people organize themselves in political movements.

As it is mentioned in the article by Bennet and Segerberg, it has become easier for both smaller and larger groups of people who share the same political opinion or other viewpoints to join each other in public debates and public demonstrations. But to reflect on this development of social media one might argue that this phenomenon does not only give the civil societies in poor leaded countries opportunities to change the political agenda. But it also makes it difficult for law abiding politicians to act and speak without their statements and opinions becoming viral through social media. Let’s take for an example look at the presidential campaign in the United States, where every single speech would bring an online storm with it, good or bad. And maybe social media has become the biggest tool for politicians to spread their word, but at the same time, social media can be vicious and bad bringing for politicians as well.

In the article social media platforms such as Facebook and Twitter are mentioned in order to show its role in relation to ‘digitally networking action’. Both of these services proved to be vital in the organization of the Occupy Wall Street movement as well as the Arab Spring and other movements. But another organizational tool that can be mentioned in relation to this is ‘new media’. There has been much debate about mainstream media’s unwillingness to substantially cover and discuss movements such as Occupy Wall Street. The spreading of contentious action is many ways a development happening parallel with the spreading of new media. As an alternative to more traditional media outlets, new media has provided people with new conditions under which to organize themselves and engage in various movements across the globe. News outlets on the internet for example give people easier access to the news and has in a lot of cases been a response to older news networks that in many cases refrain from covering global movements and demonstrations. New media can be said to form an interactive community which gives people better opportunities to organize and engage in digitally networking action.

The article also talks about Digitally networking action (DNA) which offers a superior platform to plan and organize social movements and to stay connected with other people and organizations with alike objectives. Consequently, Bennet and Segerberg categorizes as the two main dimensions of DNA to be collective and connective action. However, interestingly it seems that not only being active within these social networks and gaining factors like popularity, recognition, associates and followers, the networks are still depended on external actors. It seems, that in order to achieve the objectives set, and the ideas to profoundly break through, social networks still need acceleration from traditional media (press coverage, news broadcasts etc.). As Bennet and Segerberg points out, the indignatos of Spain gained plenty of positive media coverage, therefore able to address their objectives and to gain foothold in Spain and to create awareness abroad outside of the digital networks. Even though it is often argued that the traditional forms of media are losing their importance and influence due to the social media’s ever growing portion of people’s media consumption, it seems that in order to add validity for social and political movements, the acknowledgement from traditional forms of media remains essential.

By Joel Welling, Nikolaj Preisler, Michell Fabrin and Simon Andersson

 

Bibliography:

Bennett, W. Lance og Alexandra Segerberg (2012) “The Logic of Connective Action: Digital media and the personalization of contentious politics”, Information, Communication, and Society 15(5): 739-768

What is just war?

Determining whether war is just or unjust will always be a matter of standpoint and perspective. There will always be some who fight against the use of force and who feels that war should only be the very last resort for solving conflicts. Others might choose to go to war because they find the alternative unbearable and because they believe that with warfare they will make the world safer and secure peace and stability. No matter how different actors view war and when it might be necessary to use force almost all nation states agree that in the time of war it is absolutely critical to have certain moral limitations applying to war (Guthrie & Quinlan, 2007:1-2). Moral accountability is a part of being human and we have to be able to question what is right and wrong to do. This is especially important in extreme situations like war (Guthrie & Quinlan, 2007:1). The conditions for warfare have changed a lot; rapid technology advances and operations which do not fid tidily into well-known boxes like formally recognized war between two sovereign states. These changes have made the decisions which have to be taken by governments and armed forces at all levels more difficult and more complex leaving us in ever greater need of a practicable and significant moral compass (Guthrie & Quinlan, 2007:3).

Guthrie and Quinlan argues that the Just War tradition originating from ethical analysis developed by Christian thinkers during a long time span is still the best available foundation for providing the very much needed moral compass (Guthrie & Quinlan, 2007:2,4). The Just War tradition and the thinking of the Christian writers do not rest on anything written in the Bible but on a fundamental respect for human life. War should never be for the sake of killing people but instead with a goal of saving as many lives as possible by preventing or ending harm (Guthrie & Quinlan, 2007:5-6). Christian thinkers recognized that war is an unavoidable fact in human affairs while at the same time focusing on the moral task of defining why and under what limiting conditions war should be looked at as tolerable – which brings us back to the top of this blogpost and the never ending debate on when and why if ever the use of force should be considered (Guthrie & Quinlan, 2007:6-7).

This debate can usefully be translated into the ongoing debate between the two strands in the English School – the pluralists and the solidarists, about humanitarian intervention, which exposes the conflict between justice and order in the international society. Pluralists see humanitarian intervention as a violation of the fundamental rules of sovereignty, non-use of force and non-intervention. They focus on how these rules provide for a stable international order among states with different conceptions of justice. For pluralists states and not individuals are the principal bearers of right in international law and it is seen as being very unlikely that states should develop agreement beyond a minimum ethic of coexistence to prevent any destabilization of the existing order (Wheeler, 2000:11). This view is challenged by the solidarists. They look to strengthen the legitimacy of the international society by a further commitment to justice. This conception recognizes that individuals have rights in international law, and the defining character of the solidarist international society is that states do not just have a moral responsibility to protect their own citizens but also be protectors of human rights everywhere (Wheeler, 2000:11-12). With the changing conditions for war in our time and the partly shift away from war between two sovereign states to a new type of war between “an international society” or a coalition of states and a sovereign state or non-state actors violating human rights this debate is more relevant than ever.

Because, when should states declare war on other states? And can we always be certain that warfare will have a positive and progressive outcome? Nicholas Wheeler, being an English School solidarist, sets out four threshold conditions for humanitarian intervention derived from the Just War tradition. First, there must be a just cause meaning a supreme humanitarian emergency, secondly, the use of force should always be a last resort to end the emergency, thirdly, the intervention must meet the requirements of proportionality meaning that the level of force employed do not exceed the harm that it is meant to prevent or stop, and finally, there must be a high probability that the intervention will create a positive humanitarian outcome (Wheeler, 2000:33-34).

The Just War tradition also sets out a range of criteria that should be satisfied if war is to be morally justified. These criteria are divided into two groups: The Right to Fight and How to Fight Right (Guthrie & Quinlan, 2007:11). The group “The Right to Fight” or often referred to as Jus ad Bellum concerns the morality of going to war and includes the criteria from where Nicholas Wheeler got his threshold conditions for humanitarian interventions. The six criteria constituting this group are: A Just Cause, A Proportionate Cause, Right Intention, Right Authority, Reasonable Prospect of Success and Last Resort (Guthrie & Quinlan, 2007:12-13).

All of these criteria can be discussed and like Wheeler acknowledges, none of the criteria resolve the problem of deciding whether a particular case satisfies the test. The criteria can only be used to establish the common reference within which argumentation and discussion on whether or not to go to war or whether or not to intervene can take place (Wheeler, 2000:33).  War is never pleasant and always leads to sorrow and loss. But this being said the Just War tradition at the same time recognizes that war might not always be the worst thing possible. Sometimes there may be responsibilities and duties so important to fulfill, events so necessary to end, that a supposition against killing and war cannot be absolute for all times and in all contexts (Guthrie & Quinlan, 2007:11).

 

By Nicklas Lehmann, Stine Svenninggaard and Mejdi Soltani.

The Challenges of Watchdogs, the Problems Surrounding Them, and the Outcomes:

This blog discusses the difficulties of translators (activists, volunteers, NGO participants, officers, community leaders, etc.) through their encounters with vulnerable communities or inflicted persons violated of their human rights and their donors or the heads of states. Translators translate transnational ideas to local settings. They are tasked with explaining democracy and human rights from the international definition to an indigenized definition in which villagers or locals may understand and see meaning in those concepts. (Merry, 2006: 38)

Translators found it necessary for “vernacularization” and indigenization. (Merry 2006: 39) Vernacularization allows local institutions and meanings to adapt to a transnational idea. Indigenization is to create a new perspective of the transnational idea so that villagers/locals could understand it through their existing “cultural norms, values, and practices.” (Merry, 2006: 39)

There are two forms of vernacularization: replication and hybridization. Replication is when “the transnational idea remains the same, but local cultural understandings shape the way the work is carried out.” (Merry, 2006: 44) Hybridization is when the transnational idea and institutions merges with local ideas and institutions. (Merry, 2006: 44)

Translators in Hong Kong were able to implement the Western institution of processing battered women. This was an example of replication. Hong Kong opened some centers for battered women and avoided a “Western” -something approach. It was important to indigenize these centers so as to be understood. Hong Kong promoted transplanting North American programs into the Hong Kong context, but adapting it to Chinese culture. (Merry, 2006: 45) This allowed Hong Kong men’s explanations to be understood through their values of “yi” (rightness) and “face.” The problem was not traditional beliefs, but the rigidity with which these men held them. The center taught them the value of greater flexibility in beliefs. This would prevent further violence against women. It became a program of with local cultural context with Western imported structure, aims, and methods. (Merry, 2006: 45)

Another example of replication was a case in Hawaii. A pastor’s approach on domestic violence was anger management programs. He blended “the discursive fields of global Pentecostalism, the transnational indigenous rights movement, and feminist understandings of domestic violence.” Yet he retained the Western structure. (Merry, 2006: 46) Both were focused on local culture as well as transnational practices. (Merry, 2006: 46).

An example of hybridization is the nari adalats (women’s courts) in India. (Merry, 2006: 46) Their goal was to promote women’s human rights. Their approach was to have women activists translate women’s human rights to low-caste women that were poor and illiterate. Violence against women became a huge concern. Their programs put a “strong emphasis on women’s rights and refers to international conventions and treaties; nevertheless, Indian sources of rights concepts are more important.” (Merry, 2006: 47) The women’s courts used their own methods rather than adopting Western methods as they had no legal authority so instead they would pressure and shame to settle marital disputes or other legal disputes. The nari adalats still worked within a familiar political structure to handle cases. The caste-system was explicit in their handlings of cases. They were more successful with lower-caste families than higher-caste families. They were somewhat successful in using “their local knowledge to reshape and reinterpret community idioms, phrases, and beliefs to create and persuade the community to adopt new perspectives.” (Merry, 2006: 47) They were slowly developing a counter-culture “resisting violence in terms of the intrinsic rights of women.” (Merry, 2006: 47) This example shows how international concepts and Indian concepts became blended in these programs with Indian concepts having first priority.

Translators in Malawi had difficulty with creating meaning to democracy with the villagers in communities in Malawi. Again, translators faced problems with the head of states as they were instructed to stay apolitical in their stance to teaching democracy. There could be no meaningful dialogue. This proved to be a main reason as to why many villagers could not relate or find meaning in democracy. When democracy was questioned or criticized by villagers, translators could not discuss further and were constrained by the abstract definition of democracy to stay as apolitical as possible. They ignored the villagers’ own experiences and understandings and devalued and erased them from the public domain. (Englund 2006: 112) They maintained that the source of and the solution to poverty could be found within the community and was no fault of their authorities. (Englund 2006: 102) This was not helpful for villagers. Additionally, there were power inequalities throughout the process of aiding villages of great poverty. To the translators (officers and volunteers in this case) and to the authorities and heads of state, illiterate villagers were assumed to be ignorant. The attitudes by the translators and authorities were patronizing and assumed illiterate villagers were incapable of thinking for themselves. “This was a self-serving assumption of inferiority that obliges others to lead the chronically misguided subjects.” (Englund 2006: 120) They were seen by Malawian elites, in terms of power relations, as far below their own power status. There were power inequalities throughout the process of aiding village communities. Furthermore, the term community was abstracted and this contributed to the lack of participation by the villagers.

Translators face a dilemma in regards to their intermediary position. “The hold power by virtue of their ability to look both ways and work with conflicting value systems, yet they are vulnerable because the power delegated by higher authorities demands concessions resisted by villagers while the villagers make demands unacceptable.” (Merry 2006: 42) This creates problems as translators’ loyalties become ambiguous.

Translation takes place within fields of unequal power. (Merry, 2006: 40) They can exploit those under them, but then are also easily exploitable from authorities above them. Manipulation was run both ways. (Merry, 2006: 42) These are some of the problems with translators and explains as to why they are unsuccessful at times.

Amanda Massoumi, Camilla Kaae, and Ingibjörg Arnadottir

Bibliography:

Englund, Harri. 2006. “Watchdogs unleashed? Encountering ‘the grassroots’” in H.Englund, Prisoners of Freedom. Human Rights and the African Poor. Berkeley, Los Angeles. University of California Press. Pp. 99-122

Merry, S. E. 2006 “Transnational Human Rights and local Activism: Mapping the middle” American Anthropologist 108(1) pp: 38-51

Who is accountable – the collective or individual?

Authors: Yaqub Abdirahman, Sarah Zarhdani, Ida Juel Koll and Rukiatu Fatmata Sheriff

This blog entry illustrates the distinctive temporal progressions of trial processes and their significances for how justice and fairness are perceived and achieved in international justice. Furthermore, through the usage of Schabas’ text, this entry will draw on The Nuremberg trials and ‘Milosevic trial’ to illustrates the temporal differences between our perception of how to achieve justice and fairness throughout history. Additionally, the blog post also illustrates a collective societal shift away from collective criminalisation and guilt, towards a greater individualisation of wrongdoers. The entry, thereby, aims to illustrate the temporal progression of international trials and prosecution processes, in an attempt to explain the practical implications of these processes as their impact extends their temporality.

International criminal justice gained prominence in the international sphere in the wake of WW2 and Nuremberg military tribunals of 1945. The trials were the first of their kind and despite the later perceived brutality of the trials, which made the American Chief of justice Harlan Fiske Stone referred to as a “high-grade lynching party” (Schabas: 2006, pp. 422). The trials still signified “the beginning of a great thing” for some such as the French politician Georges Clemenceau. Furthermore, the brutality that Harlan Fiske Stone speaks of is the ‘unfairness’ and retributive nature of the tribunals, as justice was swiftly served by the ‘Victorious allied powers’ who had won the war. The victor’s then proceeded to set up a ‘special tribunal’ for prominent members of Nazi-Germany’s regime in accordance with article 227 of the Treaty of Versailles (Schabas: 2006, pp. 421).

Article 227 of the Treaty of Versailles proposed trials were the judges are selected among by the five victorious powers, and another international military tribunal as proposed in article 229 where the judges were constituted by the members of the winning states. These trials had a clear punitive approach to justice and as a result, the Nuremberg and Tokyo trials were subjected to a lot of criticism for being what many modern students refer to as a ‘Victor’s justice’.

The American Supreme Court judge, who served as one of the prosecutors in the Nuremberg trial and was a part of the negotiation of the Charter, Justice Robert Jackson (JRJ), questioned the level of justice and fairness of the trials. JRJ asserted that if one’s aim is ‘to execute in any case’, and “If you are determined to execute a man, in any case, there is no occasion for a trial” (Schabas: 2006, pp. 422). Additionally, JRJ asserts that ‘the world yield no respect to courts that are merely organised to convict’ (Schabas: 2006, pp. 422), asserting that trial should include the prospective reconsideration of perpetrators plight if the evidence called for it, rather than exercising the determination to execute the alleged perpetrators.

The international justice march including the International Human Rights Movement has had an influential impact on the procedural conduct of modern UN tribunals as these movements initiated an influential debate concerning the processes of international justice. As a consequence of the remodelling of International justice, it came to represent accountability, anti-impunity and post-conflict justice (Schabas: 2006, pp. 423). The generational progression of Transitional Justice echoes Justice Robert Jackson’s point as modern trial processes put a greater emphasis on serving justice and attaining fairness, rather than dishing out retribution. With the temporal progressions within the field of Transitional Justice, one remarkable difference between the first and the following generations of Justice come to show. The first generation illustrates the changes within the conduct of trial and the shifting perceptions of how to acquire fairness and justice for victims of atrocities.

During the second generation, the United Nations tribunals focused more on Transitional Justice in regards to trials, TRC and amnesty, in order to facilitate that societal transitions aimed at “ … ending impunity is essential if a society in conflict or recovering from a conflict is to come to terms with past abuses committed against civilians (…) and to prevent future abuses” (Schabas: 2006, pp. 424). The resolution, which UN Security Council reaffirms, draws the attention onto the full range of justice and mechanisms of reconciliation as the UN Security Council aimed at promoting “… not only individual responsibility for serious crimes, but also peace, truth, reconciliation and the rights of the victims” (Schabas: 2006, pp. 424).

The tribunals and trial processes as a mean to acquire fairness and justice for victims of atrocities is an attempt assure that the atrocities are “paid for”, in accordance with the progression of the second generation of Transitional Justice. The shift came to show during the 1990’s when Margaret Thatcher and George Bush Snr. tried to push for an international tribunal indicting Saddam Hussein who was regarded perpetrator as he was accountable for the mass atrocities in his military aggression towards Kuwait (Schabas: 2006, pp. 422-423). Even though, the attempt did not successfully follow through, the proposal contributed to a larger ‘openness towards international justice’, which had not been witnessed since the 1940s (ibid, pp. 422-423). The United Nations Security Council acknowledged the necessity for an International criminal tribunal, due to the fact that violations of the international humanitarian law were violated in former Yugoslavia in 1993. With an increasing openness towards international justice a procedural shift occurred in the prosecution processes, the focus shifted away from indicting political regimes to prosecuting individuals, who were held accountable for committing mass atrocities and ‘crimes against humanity’.

 

The ‘Milosevic trial’ is included with the purpose of highlighting the aforementioned shift, where a greater focus was placed on the individual as a bearer of guilt compared to the collective guilt that was placed on eg.  Leipzig trials. In November 1995, The Dayton Peace Accord (DPA) was signed by the following Heads of States of Serbia (Slobodan Milosevic), Croatia (Franjo Tudjman) and Bosnia (Alija Izetbegovic). The primary purpose of DPA was to establish peace, by settling the bloody territorial disputes and wars that ravaged the Balkans for years, resulting in thousands of deaths, and the massive displacement of approximately two million people fleeing the mass atrocities. The DPA resulted in the partitioning of Bosnia-Herzegovina, which intensified the ethno-religiously division as the nation-state was internally divided into two units, a Bosnian-Croat (Islamic) Federation and a the Bosnian-Serbian Republic. William A. Schabas draws the attention onto the Serbian politician Slobodan Milosevic (1941-2006), who was prosecuted and later convicted of committing ‘crimes against humanity’ in the former Yugoslavia, thus violating the International Humanitarian Law (Schabas: 2006, pp. 423). The massacre was later dubbed the ‘Srebrenica genocide’, which was accountable for the death of approximately 8.000 Bosnian Muslims during July 1995, is applied in the article to exemplify and emphasise the extent of the atrocities ordered by Milosevic. Schabas provides an inside to the ‘Milosevic trial’ to discuss the complexities involved in guaranteeing a fair trial. Due to the sudden death of Milosevic, the question arose whether the ‘Milosevic trial’ could be contemplated as a fair trial and if justice was served before his death in prison. Three exemplifications are presented to examine the fairness of the trial process.

The first example touches upon the admission of written statements. To understand how we can improve the prospects of achieving ‘fairness’ and international justice, the Nuremberg trial of ‘International Military Tribunal’ is essential for our understanding as the court was critiqued, due to the heavy utilisation of written testimonies that were processed into affidavits (written statements confirmed by oaths). Schabas draws a parallel to the ‘Milosevic trial’ to underline that both trials lacked cross-examinations (Schabas: 2006, pp. 424). This was evaluated as unfair since justice was solely restored through the utilisation of written testimonies. As a consequence of the large reliant on written testimonies, ‘eyewitness testimonies’ has become a priority for all open courts to minimise that a trial is only based on affidavits construct a fair trial (Schabas: 2006, pp. 424-425).

The second addressed the substitution of judges during the trial process. Due to the illness of judge Richard May, the three judges, could not proceed with the trial according to the ‘Rules of Procedure and Evidence’ (1994). According to the framework, the Milosevic had to provide his consent to the continuation of the trial with a substitute judge, but the legal requirements were not met as the rules were altered (Schabas: 2006, pp. 425). The ‘Milosevic trial’ continued with the substitute judge without the consent of Milosevic. The last example deals with the right of the accused to defend oneself. It is highlighted that Milosevic was not given the right to represent himself, instead, he was provided with court-appointed officials who was responsible for defending him. This conflicted with the Tribunal’s Statute, which formally provides the accused (Milosevic) the right to defend himself on his own or through legal assistance (Schabas: 2006, pp. 426).

Schabas asserts that “… it would be overstating things to dismiss either the Milosevic trial or Nuremberg trial as unfair. Both had their flaws.” (Schabas: 2006, pp. 426). This implies that regardless of the proceedings of the ‘Milosevic trial’ it is an exaggeration to contemplate the trials unfairly, instead, we should mainly acknowledge that the procedure was flawed. Additionally, Schabas evaluate the trial outside it procedure level and argue that “… a trial is unfair if the charges themselves lack a legal basis.” (Schabas: 2006, pp. 427). As it is evident in the statement, the perpetrator, Milosevic, did not suffer any unfairness in regards to his convictions, since the legal basis for convicting him was strong and because he was found guilty of committing ‘crimes against humanity’.

 

Conclusion

As illustrated throughout the text, the International Criminal Court certified that the prosecution of atrocities committed by political regimes, who were not in the position of exercising jurisdiction was held accountable to the international law. This was done to ensure that ‘crimes of state’ did not go unpunished when the judicial system of the nation failed to operate (Schabas: 2006, pp. 430). Furthermore, Schabas notes that “Genocide, crimes against humanity, war crimes and crimes against peace were all ‘crimes of state’, even if the specific perpetrator were individuals” (ibid, pp. 430). This highlight a progression away from collective forms of guilt, towards a greater individualisation of wrong-doing, the shift is illustrative of the temporal nature of trial processes and our sense of justice at large. Drawing on the peculiarities of the cases, it is evident that trial processes are linked to the international community’s collective understanding and sense of justice. The marked progressions, therefore, calls for the student of transitional justice or international justice studies to look beyond the evident dichotomisation and categorisations of victims and perpetrators, collectives or individuals, or substantive and punitive justices as the field of International justice operates within a temporal context.

 

Bibliography

Erin K. Baines (2009), ‘Complex Political Perpetrators: Reflections on Dominic Ongwen’ in Journal of Modern African Studies vol. 47, pp. 163-191.

William A. Schabas (2006), ‘International Justice for International Crimes: An Idea whose Time has Come’ in European Review vol. 14, pp. 421-439.

The correlation between reparations and assistance and its impact on beneficiaries

The notion of reparative justice, in forms of either reparations or assistance provided to beneficiaries, and its issue of a seemingly unclear dichotomy between the two of them in transitional justice, has been discussed and examined by many scholars. According to Peter J. Dixon’s work on reparations and assistance, the distinction between the two is notably diminishing, even though international courts pursue a clear separation of both measures as both measures differentiate in the principles of responsibility, recognition, process, form and impact. Thus, it is important to know what each measurement generally implies. By Dixon’s definition, reparations are measures provided to a violated, harmed and/or injured party by that party who is responsible for the act of violence/harm or injury, which thereby is automatically held accountable and obligated to attempt to redress its wrongdoing. Reparations are based on the rights of individuals and are often considered transformative, by having a long-term impact on its beneficiaries.

Assistance, on the other hand, is usually more transitory as it aims to fulfil short-term needs of individuals, in order to provide more stable life conditions for its beneficiaries. Accordingly, assistance is most likely to appear in the form of development projects, humanitarian relief, state subsidies and the like.

Even though, the two measures seem distinct to each other in theory, the distinction often tend to blur in practice, as they happen to look very similar once institutionalized by the courts. Their former differences in the above mentioned five principles seem almost to become alike when translated into practice. One reason for this assimilation can be illustrated by the example that in many cases both measures, reparations and assistance, are financially funded by the same institutions or entities which is why the measures are often provided through almost identical or at least similar processes.

This similarity of both measurements in practice has caused/or has been caused by the intertwining of the two in transitional justice. Although the cooperation of both forms of reparative justice, where assistance mostly works as a bolster for reparation, has been proved reasonable and effective, the diminishing distinction between the former and the latter has been perceived and utilized differently by different models that combine reparations and assistance. Dixon introduces three different models of combination, however we will only focus on two of them, namely the ‘subsistence’ model and the ‘swiss cheese’ model, whereas the third model, ‘Interim Relief”, seems less relevant for us to consider, as it has solely worked in theory.

While the ‘subsistence model’, where assistance is usually provided beforehand so that the beneficiaries are able to (re)-establish more stable livelihoods in order to receive the long-term oriented reparations, inhibits favouritism to a clear distinction between both measurements provided and wants its beneficiaries to be aware of the former, transitional justice examples that resemble the ‘swiss cheese’ model, which is characterized by assistance filling in the gaps that reparations were not able to address, tend to prefer the unawareness of its beneficiaries of the distinction. Examining these different perceptions on the interconnection between reparations and assistance, the question of whether awareness or unawareness is more beneficial for the recipients, arises. It should be noted here that each model can not be seen as a clear distinction from the other and both models of combination interlink in some ways, also the examples offered to illustrate the models can contain elements of both models and only serve to exemplify.

Having recipients of a combination of assistance and reparations aware of the distinction between the two, as it is often the case in the ‘subsistence’ model, has certain advantages. The ability of victims of human rights violation to know whether or not one receives reparations or assistance, or a combination of the former, and additionally to know the distinction between the measurements can turn out to be quite important. This is due to the assumption that reparations have a strong symbolic meaning and power, consequently giving victims the chance to be recognized as such and offer them a measure to identify themselves with. Knowing as a beneficiary that one has not ‘only’ received assistance that is supposed to satisfy their substantial needs, but that their violated rights are tried to be redressed by reparations, often given by the wrongdoers who are also held accountable, obviously seems like an important step for the victims’ rehabilitation process. It seems important for victims to know that the violation of their human rights is recognized and that someone is held accountable for it. If a victim would not be certain of whether or not the measure he or she received has been assistance or reparations, his or her agency is being restricted, since his or her chance to choose identify him or herself with its status as a legitimate rights holder is being taken away from him or her. The distinction between reparations and assistance also makes increases the transparency of who is held accountable for their wrongdoings, giving victims the notion that justice has at least attempted to be restored. In a case like Colombia, where over 16% of the country’s population has been registered as victims, it seems relevant for each victim to find his or her own position and status in this huge range of fellow-victims.

However, an obvious disadvantage of the beneficiaries’ awareness of the distinction between reparations and assistance is the issue of their victimization that comes along with it. Despite the general notion that victims seek for a space to present themselves and an arena to be recognized as victims of human rights violation, this cannot be generalized unto all beneficiaries. Many people whose rights have been violated and who have been harmed, seek to deny their status as victims, for instance due to the fact that they rather see themselves as heroes, do not want to be put under a specific label or into a box and retain their individuality. The distinction between reparations and assistance, however, could have the effect of victimizing many recipients of reparations against their will, due to the important symbolic meaning and political context of reparations. This issue seems to be better addressed by the ‘swiss-cheese’ model.

The differentiation between assistance and reparations may be indistinct here, as we experience in the case of Lubanga. In this case where many beneficiaries have been child soldiers, the blurriness in distinguishing between assistance and reparation, was considered to be more beneficial for the children’s’ future. This can be argued as the principle of receiving recognition, which is one of the main intentions behind reparations, would not encourage their rehabilitation in society, but rather stigmatize them as child soldiers. Therefore the indistinct relationship between reparations and assistance, in the case of Lubanga was more appropriate, in regards to the possibility of establishing a new life for the former child soldiers where they could just be considered as members of a broader beneficiary group, like the vulnerable youth.

The overall problem is that both models generalize victims and their preferences, or may not even consider their preferences when trying to make clear or unclear distinction between reparations and assistance. The case of reintegrating child soldiers into the society of the DRC poses as an example of how the swiss-model has shown to make most sense in this particular matter. However, there must have been cases of child soldiers in DRC who would have wanted to be recognized as such in order to determine their clear status as right holders, since their rights have been enormously violated by being forced to become a child soldier in the first place.

It becomes apparent, that neither of the models are superior to the other and that the question of whether it is advantageous for the beneficiaries to be aware or unaware of the distinction between reparations and assistance depends on individual preferences and circumstances, that models used by the International Courts do not address adequately or at all.

Text referred to:

  • Dixon, Peter J (2015), Reparations, Assistance and the Experience of Justice: lessons from Colombia and the Democratic Republic of the Congo.

written by Zofia Sjeerm, Natascha Berntsen Hyld, Tyeisha Sofie Hess Lund and Jule Chiara Wichern

 

The South African Experiment

When one sets out to examine the relatively modern field of restorative justice, particularly Truth and Reconciliation Commissions, one must acknowledge the general intention and courage of those attempting to establish peace and ensure justice in a wholly new way. In the case of the South African TRC, the subject of Graeme Simpson’s work, “Tell No Lies, Claim No Easy Victories,” rather than simply punishing the perpetrators, the focus was on the healing aspects that could provide a solution to unite a country that was divided by apartheid for decades. However, despite the significant accomplishments of the TRC, legitimate criticism remains after the work of the commission in South Africa was completed.

 

The first critique that sprang to our minds is the duration of the TRC. It was intentionally established to exist for two years in order to investigate and uncover the truth during apartheid, and to give the South African society a chance to heal. It  appears naively short sighted, perhaps even ignorant, to expect a commission to effectively and thoroughly investigate more than forty years of institutionalized racism and oppression, perpetrated against the majority of the inhabitants of a nation, within a mere 730 days. A reasonable timeframe might be hard to determine at the outset of such a venture, so maybe a society should evaluate and decide for itself when the open wounds of conflicts have been healed and the work of a TRC is no longer necessary, rather than relying on an arbitrary, and no doubt politically motivated, period of time.

 

While TRC’s, regardless of the length of time for which they are established, have been proven to provide at least some manner of therapeutic benefits for victims, it is important to note that the frequent assumption that “healing is revealing” is far from universal, and the implication that a TRC is a panacea could potentially lead to great disappointment. It has been found that a number of victims testifying for the South African TRC walked away feeling devastated by the failure of the TRC to deliver on their expectations, namely, that of justice. The main failure of the TRC’s, and in this specific case the South African TRC, seems to be a generalization of the victims needs (the assumption that they all want an outlet to “tell their story” and be heard), and a blindness towards other alternative needs. A need for one definitive truth being discovered and settled on, a need for financial assistance or compensation, or even a need for symbolic reparation for their lost ones are just some of the unaddressed needs that left many unsatisfied. Even more importantly, for some victims “storytelling” may be healing, but for others, its disappointing results and the “unresolved trauma” brought out by the process can lead to destructive and damaging effects. After reading what Simpson had to say about the South African TRC, we feel that a future TRC should put greater research into the needs and wants of the survivors in order to structure the process of justice to better meet their expectations in a more precise and individual manner.

 

Compounding many victims unresolved feelings and expectations were the attitudes of many of the so-called “bystanders;” those white South Africans who had no direct hand in the application of the apartheid system, yet neither had they supported the ANC or others struggling for equality. These bystanders were found to hold some startling views of the victims and their needs. In a survey that was taken shortly after the TRC was formed and began its work, fully forty percent of the white population felt that not only was the former governmental system not unjust, but apartheid itself was a perfectly reasonable societal model (although, in their defense, they did feel that it had been “badly carried out”). A staggering 86% of white South Africans also absolved those who had voted for the National Party (the white political party of apartheid) of any blame for the aforementioned way apartheid had been carried out, instead placing the responsibility for the atrocities committed only upon those who had been directly involved in their administration. Even more insidious, nearly two-thirds of white South Africans did not believe the allegations brought before the commission to even be true, and a majority also felt the there should not be any sort of reparations made, as any stories that happened to be true were still exaggerated.

It is not completely unreasonable to expect that a group of people might have a hard time facing the consequences of their actions. After all, in the decade following World War II many Germans felt that Hitler was one of their greatest statesmen, and their country had not even been responsible for the outbreak of the war. In a more recent example, a disturbing number of white Americans claim that racial tension and injustice is solely the fault of President Barack Obama and the Black Lives Matter movement, and firmly believe that there is “no such thing” as systemic, rather than overt, racism. Unfortunately, as common as it might be, this kind of extremely myopic view does not bode well for the efforts of such an institution as a TRC. If a truth and reconciliation commission is established to heal the rift between two groups of people, yet a majority of one of those groups of people feels there is no rift, how can the commission possibly discharge its responsibilities? With such a fundamental dichotomy between the stated purpose of a justice system and the political and social views of many of the people beholden to that system, it comes as no surprise that there were many desires left unfilled, and so many were left embittered all around. Consequently, victims were denied their chance at restorative justice, and perpetrators were themselves cast as victims of a witch hunt.

 

Moreover, the South African TRC´s approach in dealing with human right violations became a compromise between punitive action and amnesty for the “wrongdoers,” where the focus on “truth recovery” acted as restorative form of justice. The goal of the TRC was reconciliation through conditionally amnesty, thus accommodating both the victim’s need for recovering the truth, and giving the chance of amnesty for perpetrators guilty of gross human rights violations. However, it is interesting to note the challenges which the TRC faced from perpetrators, particularly the National Party´s aim to undermine the work of the commission. This right wing opposition created a subtle reluctance in the TRC to fully extend their power in order to uncover the truth, thereby inhibiting the successful delivery of justice by vindicating victims and survivors. The TRC was even accused of being biased during their investigation and the National Party demanded an apology from the TRC, because they felt that the investigations were focused on the former government and right-wing organizations. Assuredly, crimes were committed by both sides during the conflict that ended apartheid, but it should be the the TRC’s own responsibility to set the focus of their work. If it is constantly trying to appease outside parties with their investigations and results, then it certainly can be accused of being biased, dependent, perhaps even corrupt, and completely unable to fulfill its task of finding the truth. This reluctance to truly pursue the truth could be seen as a problem since, according to Simpson, “[…] many frustrated victims of apartheid have argued simply that there can be no reconciliation without full justice.” The unwillingness of the perpetrators and right-wing political parties thus poses a problem when full justice is needed in order to alleviate the tensions caused by the racial segregation during apartheid. Although there has been an apparent reconciliation and a democratization of government due to the TRC’s work, racism still exists in South Africa to this day. Based on these considerations, one could make the argument that the political turbulence surrounding the TRC caused the committee to fail to employ other, additional, options for justice which might have been necessary for the country’s reconciliation and democratic aspiration to have been even more successful.

 

For all the good it has done, the South African TRC had some obvious shortcomings. With its unsatisfactory duration, unmet and unrealistic expectations, conflicting perceptions and social mores, and undue outside influences and pressures, the TRC clearly left a great deal to be desired. With all that said, of course, the TRC had a nearly impossible task to accomplish, and it served remarkably well, despite lingering racial issues and resentments. Due to its success in the face of nearly insurmountable odds, we agree that the concept of a TRC is a viable option for restorative justice, but we reserve the caveat that the South African model should merely serve as a template, and not a paragon to be copied exactly, in the future pursuit of a more just world.

 

Julie Ringgaard Kauffmann

Marie Jensen

Bastian Lindner

Fadrique Avalle-Arce

Retributive vs. Restorative justice using the example of The People V. Brock Allen Turner Case

This blog post is going to discuss the People V. Brock Allen Turner case and analyze how restorative justice could have been more beneficial to the ruling of the case. Retributive justice focuses solely on gaining justice through a unilateral method of punishing the offender. In restorative justice there is a bilateral method in which both the victim and offender address the conflict between the two and follow certain steps to reach an apology and forgiveness. Both types of justices can take on an ontological or consequentialist approach (Wenzel, et al., 2008). Is it possible that retributive justice did not produce the most just ruling in this case? How could using restorative justice techniques have changed the outcome of the ruling?

 

After a three week jury trial that came to a close on March 30, 2016, Brock Turner, a former Stanford University student (CBC News, 2016), was convicted for committing the following three felonies: Assault with Intent to Commit Rape of an Intoxicated/Unconscious Person, Penetration of an Intoxicated Person, Penetration of an Unconscious Person (People V. Brock Allen Turner, [2016]). The laws of California do not classify cases like this as rape because there was no intercourse involved, only penetration. He was sentenced to six months imprisonment, but only served three due to early release on the basis of good behavior (CBC News, 2016). The young man was arrested for assault when two students witnessed him on top of an unconscious woman outside a fraternity house (Ibid.). The trial was thoroughly covered in the media and once news broke out about the length of the sentence, people around the world took to social media, and the streets, to criticize the court’s ruling based on the leniency of the punishment (Ibid.). People even demanded that the judge on the case, step down, and began to criticize California’s laws for showcasing outdated definitions of rape (Ibid.). This leads to the idea that retributive justice was a failure in this case. Not only is the victim displeased with the results of the ruling, but the public is concerned that future rape and assault cases will be handled in the same manner. People believed that Turner’s sentence was far too lenient. This type of punishment was ontological: an impartial judge and jury ruled Brock Turner and punished him accordingly. Retributive justice has many limitations that are unbreachable. The victim was not involved in punishing Brock Turner nor was the community surrounding both the offender and victim (family, friends, teachers, classmates, etc.). Restorative justice bilaterally resolves an issue, but can it do it in such extreme cases like rape? Restorative justice may have been helpful in the victim gaining some type of apology or explanation for what was done to her. The victim could have given her side of the story. The punishment may have taken a consequentialist approach. If restorative justice had been utilized, there would have been a chance for the victim to play a larger role in her perpetrator’s fate. Although punishment is not a primary focus of restorative justice, the punishment could have ended up being more satisfactory, for the victim, and for the public. Another benefit of restorative justice is that the central focus is to heal both the victim and the perpetrator, meaning that the rehabilitation of the criminal is also an important factor. One of the main reasons that the media and public are expressing such a negative response to the ruling of Brock Turner’s case, is that they believe it is a step back, and that it encourages campus rape and supports non-consensual sex. Being able to teach the public and offenders such as Brock Turner about significant matters such as consent and classification of assault and rape, is just as important as achieving justice. In conclusion, if restorative justice had been utilized in the ruling of Brock Turner’s case, there would be a greater chance that he would have been given a punishment that the public and his victim would deem satisfactory, and that both parties in the crime would be given the chance to heal.
Written by: Amanda Massoumi, Camilla Kaae, and Ingibjörg Arnadottir


Is it just Just War?

At first glance the six stipulations for jus ad bellum seems legitimate and something we can all agree on. The simple and comprehensible principles for going to war might even seem like an oversimplification of very complex state of affairs. Is it really possible to make six universalistic statements that can justify going to war? Isn’t it too easy?

  • The first criteria ‘just cause’, seems like an obvious truth, and can probably be agreed upon by all states. But, on closer inspection, who decides what a just cause is?
  • Proportionate cause must also raise questions, because how do we measure the consequences and outcome of war? E.g. how many lives are worth the spread of democracy?
  • The third criteria evolves around ‘right intentions’, here we revisit the critic from the ‘just case’ criteria, who decides what the right intentions are, but also who can figure out if there are any hidden and less morally correct intentions at stake, as revenge of a hated nation?
  • The decision to go to war must be made by the right authority, but what defines legit leadership varies all over the world. Some would say democratic elections while others would point to religious leadership. So how can we make a stipulation of proper authority?
  • The fifth criteria are ‘reasonable prospect of success’. We wonder, as in the case of the second criteria, how to calculate certainties in times of warfare? And also, what is a reasonable prospect 30 pct., 50 pct. or 90 pct. – how certain are certain?
  • The last criteria relates to warfare as last resort. This might be the most comprehensible criterion, but it also lacks a definition of when it is last resort. When has a nation tried every other way of adequately securing their just aim? And furthermore the uneven access to resources and possibilities for alternative peace solutions throughout the world nations challenges this claim. Are there greater expectations towards the effort of The United States compared to Burkina Faso? (Guthrie & Quinlan 2007: 12-13)

We find that there are different shortcomings in all the above-mentioned stipulations, but we identify a common glaring challenge in the ‘Just War’ theory namely the difficulty (impossibility even?) in composing a universal theory that is applicable in all kinds of warfare and states.     

To be even more critical, can those kinds of oversimplified theories be used for legitimizing war? Depending on the perspective, many (if not all) wars can be fitted into this theory. This means that every warring nation could proclaim that they comply with the six stipulations for jus ad bellum, and therefore justifying going to war.

Inspired by the blog post by PhD. student Benjamin Studebaker, who gives a general critique on Just War Theory, we can join his view on the necessity of multiple just war theories. This would make up for some of the challenges with one arbitrary universal just war theory, hence it could be specified towards more concrete situations of war (Studebaker 2013).

Is there such a thing as justifiable war?

Is there such a thing as justifiable war?

Guthrie & Quinlan (2007) Just War – The just war tradition: Ethics in modern warfare, Walker & Company.

Studebaker, Benjamin (2011) A Critique of Just War Theory: https://benjaminstudebaker.com/2013/02/18/a-critique-of-just-war-theory/

  • Adina Stroe Ren, Johanne Kloster Kirk, Anna-Kathrine Gottschalk-Hansen, Ida Harder Nielsen and Pernille Viola Robrahn

Perspectives on retributive and restorative justice

One can consider and practice justice, from different perspectives, e.g. the retributive and restorative point of view. The retributive justice refers to punishment as based on the need for revenge, in which the element of justice lies (Wenzel, 2007: 376), where, in the restorative justice, it is the healing element rather than punishment that is central (ibid.). In this perspective, the victim will be able to include his or her feelings and thereby start the healing process – likewise, the offender is supposed to undergo a healing process, through which moral and social attributes are rebuilt (ibid.: 376).

As presented in the article Retributive and restorative justice, evidence suggests that the restoration of justice is the main motivation for punishment (ibid.: 376). Therefore, one can argue that the feeling of righteousness associated with the punishment could in some cases, be a dominant part of the process of the victim overcoming the offense, a component that the restorative perspective may not consider. It might also be noteworthy to consider the degree of the crime – are some crimes not so horrendous, that a healing restorative trial is far fetched? Or is it even possible to heal a victim of serious crimes? Could anyone of the stakeholders, besides the offender, truly be satisfied and healed in those cases?

Furthermore, the article argues that those involved (the victim and the offender) is only left a limited role in the formal court-based justice system (ibid.: 377). If the crime is deemed the domain of the state (ibid.), follows an objectivity that may be an important, if not in some cases necessary, part of achieving justice. As an example; if one of those two has a very strong and trustworthy personality, the involvement of feelings could prevent a fair verdict.  

We are left with a fundamental problem. How is it possible to be an impartial judge who objectively is capable of judging whether the offender is truly feeling remorse, which is the prerequisite for a successful healing process. Finally, how can the restorative justice be sufficient in cases where the offender refuse to or is not capable of feeling remorse?

 

Is restorative justice prior to retributive justice?

Is restorative justice prior to retributive justice?

Wenzel et al. (2008) Retributive and restorative justice. Law and Human Behavior

  • Adina Stroe Ren, Johanne Kloster Kirk, Anna-Kathrine Gottschalk-Hansen, Ida Harder Nielsen and Pernille Viola Robrahn

Is “Our” democratic model the perfect one?

billede-blog

When George W. Bush decided to invade Iraq in 2003 the main “public”reason was that USA had to help Iraq with a new society model. A country, which had to be democratic and equal, and people like Saddam must not rule. After 13 years the situation in Iraq did not change. The Country is still in an instable situation, where there are different groups who are trying to get the power.  The same is happing in the other countries in the middle East after the Arab spring. The revolutions in Tunisia, Libya, Egypt, Yemen etc. had, as purpose, to create a solid and an equal democratic country. The USA and the EU helped  and they are still helping these countries but the situation is worse than before, maybe only in Tunisia we can talk about a society in progress.  Is our model, our democratic conception the perfect one for us and for “them”? Should we, western society, interfere with their society? Our democratic model took years, many years; centuries only with the different theories from 1800s could we create the society we have today. However, to do the same thing in the Middle East or Africa is difficult, maybe impossible. Because they have different cultures, they approach their problems in other ways. for example  in Saudi Arabia is okay to punish with violence someone who stole. We see it “wrong” but maybe the people in Saudi Arabia see that like the “perfect” justice, the right justice. Who said that that our conception of justice must be the best in the world?  Keynes in 1919, in Versailles, was the only one who said that to punish Germany would make suffer the German people, who will be disparate. Poverty would have led them (the german people) to desperate choices. What happened 20 years after Versailles, we know very well. Maybe France and Uk thought that it was the right thing to do in that moment. And Maybe The US and The UE are thinking that they are doing the right thing. However it does not matter how positive can be our reasons, because we have to respect the principle, that each nation  has sovereignty over its territory and domestic affairs.

– Fraser, Nancy (2008), New Directions in Critical Theory : Scales of Justice : Reimagining Political Space in a Globalizing World

– Keynes J.M (1919), The Economic Consequences of the Peace.