Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice Read Online Free PDF Page B

.
     
     
    [6] Priscilla Hayner, Unspeakable Truths (Routledge, 2001), at p. 5.
     
     
    [7] Thomas Nagel made this point at an early conference on transitional justice sponsored by the Aspen Institute.
     
     
    [8] See, for instance, Carmen Aguiar de Lapaco v. Argentina , Inter‐American Commission Case 12.059, Report 21/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 340 (1999).
     
     
    [9] See Laurel Fletcher and Harvey Weinstein, “Violence and Social Repair”, (2002) Human Rights Quarterly , 24, pp. 573–639; Jaime Malamud, War Without End (Norman: University of Oklahoma Press, 1996).
     
     
    [10] See, e.g., Richard Wilson, The Politics of Truth and Reconciliation in South Africa (Cambridge: Cambridge University Press, 2001).
     
     
    [11] Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (New York: Times Books/Random House, 1998).
     
     
    [12] Figures derived from indictments listed on the website of the ICTY, http://www.icty.org . ICTR data in letter dated 5 December, 2005, from the President of the ICTR to the President of the Security Council, available at http://65.18.216.88/ENGLISH/completionstrat/S-2005-782e.pdf .
     
     
    [13] Stover and Weinstein, My Neighbor, My Enemy , especially chs. 1,2, 9 and 10.
     
     
    [14] In the case of the ICTY, the Tribunal served a gatekeeper function in relation to national courts: for a local court to take up a war‐crimes case, the Tribunal had to first find the case meritorious (the “rules of the road” agreement). In Rwanda, national courts proceeded to try several thousand defendants (and to arrest over 120,000) but the relationship with the ICTR was not one of close cooperation.
     
     
    [15] Fletcher and Weinstein, “Violence and Social Repair”.
     
     
    [16] The UN is also pursuing a hybrid court process in Cambodia as well, where, under the proposal insisted upon by the Cambodian government, a majority of judges and senior officers of the Extraordinary Chambers will be Cambodian nationals. For further discussion of hybrid courts in these countries, see Suzannah Linton, “Cambodia, East Timor and Sierra Leone: Experiments in International Justice” 2001 Criminal Law Forum , 12:185; relevant information is also available at http://www.cij.org . In 1999, the United Nations established a program of International Judges and Prosecutors in Kosovo. By the end of 2000, the Kosovo IJP program had evolved into a system of special international‐majority trial and appellate panels, which could hear all war crimes cases, as well as all significant cases of organized crime and “power vacuum” and “payback” crimes, including terrorism, inter‐ethnic violence, political assassinations, and corruption. See Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New Model for Post‐Conflict Peacekeeping (USIP, 2003), available at http://www.usip.org/pubs/specialreports/sr112.html .
     
     
    [17] The Security Council has since at least 2000 supported the idea that the International Criminal Tribunals for the Former Yugoslavia and Rwanda should focus on civilian, military and paramilitary leaders and should, as part of their completion strategy, “concentrat[e] on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes” while transferring cases involving lesser offenders to the national courts. Security Council Res. 1329, UN Doc. S/RES/1329, Nov. 30, 2000; Security Council Res. 1503, UN Doc. S/RES/1503, Aug. 28, 2003; also S/RES/1534 (2004). The Prosecutor for the International Criminal Court has similarly expressed his office's intention to focus on the leaders who bear most responsibility. “Paper on some policy issues before the Office of the Prosecutor” (Sept. 2003), available at http://icc-cpi.int/library/organs/otp/030905_policy_paper.pdf . National laws, e.g. in Argentina or Rwanda, sometimes make the same distinction, as does the Special Court for Sierra