This seminar will examine the legal, ethical, conceptual and policy issues confronting societies and successor governments in dealing with past violence and violations of human rights committed during the tenure of undemocratic and repressive regimes. It will review various sources of international law regarding state obligations in dealing with past violations and will consider a number of case studies to determine how and why emerging democracies (and in some cases, established democracies) have succeeded or failed in fulfilling these duties and in dealing with the past.
The course will expose students to complex transitional justice debates in domestic and international law (such as the permissibility of amnesties and the rights of victims, and the relationship between judicial and non-judicial forms of accountability for major international crimes) and will tease out the dilemmas presented in the delicate balance between legal obligations and the realities of political governance and fragile peace processes. This seminar is designed to test and debate the relationship between politics and law and between peace and justice - particularly in the complex context of societies seeking to come to terms with past violations whilst building the capacities of fragile states and consolidating delicate peace processes.
The seminar will examine the range of transitional justice mechanisms that may enhance accountability and counteract impunity for past violations of human rights. It will pay special attention to truth seeking and the work of recent Truth Commissions, as well as their growing impact on both law and policy. The course will also focus on the role of the International Criminal Tribunals and will examine the particular position and role of the International Criminal Court (ICC). The seminar will examine reparations programs for victims (including symbolic measures associated with memory and memorialization), as well as the critical issues associated with not only individual responsibility for past violations, but institutional complicity and the challenges this presents for institutional reform measures and the rebuilding of civic trust in emerging democracies. The seminar will also engage with the gender dimensions of transitional justice and will navigate the complex relationship between peace-building, social justice and development in the context of fragile peace processes.
The seminar will aim to combine an analysis of relevant international and domestic law with a factual scrutiny of a number of case studies which might include: South Africa, Uganda, Liberia, Kenya, Zimbabwe, Sudan, Nepal, Colombia, Peru, Argentina, East Timor, Guatemala and Indonesia, as well as several others. In fact, students will be encouraged to help structure the class by bringing cases and examples that interest them to the seminar table, to stimulate debate and discussion. Indeed, the course will endeavor to retain a relevance and an ability to engage with current processes and developments as they evolve in various regions of the world.
The seminar will be structured around the key contemporary legal and political debates in the field and students will be required to write a graded paper which selects a key thematic issue or which analyzes a selected country case study involving ongoing conflict or a situation in which there has recently been a transition from conflict and/or human rights abuse to a more stable or democratic government. Based on a survey of applicable international law and cognizant of political and other constraints, students must analyze or propose a set of legal and institutional initiatives designed to deal with both victims and perpetrators of massive and systematic human rights abuse which took place in the past. Students may also propose their own research topics, for which they must obtain prior approval. Examination for this seminar will be on the basis of submission of this written paper.
There are no strict prerequisites, but a prior familiarity with international law or human rights law is an asset. As this course is structured around the relationship between 'law and politics' in the international arena, an interdisciplinary approach is encouraged, as is participation of students not only from the School of Law, but also from SIPA and other disciplines/departments within the University. A specific commitment will be made to sustaining some balance in the participation of Law School and other students (particularly but not exclusively from SIPA). Preference will be given to students at Masters degree level (and L3 students will be given preference over L2 students who apply), in order to maximize the opportunity for students in their final year of study to take the seminar.
Students who perform to the standard required in their end of term paper, may automatically be credited with a minor writing credit. A limited number of students who complete this course and thereafter wish to undertake applied or field research, or a major writing credit, may register for supervised research during the Spring semester or a major writing credit.