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Transitional Justice + Cyberjustice = Justice2?

  • PHILIPP KASTNER
Abstract

The increased use of information and communication technologies arguably represents important opportunities for the field of transitional justice, notably with respect to the optimization of existing mechanisms and the development of new ones. This article focuses on state-based and typically very formal mechanisms, namely international, internationalized and national criminal tribunals as well as truth and reconciliation commissions. These institutions often apply and engage with international law and operate with the involvement or under the close scrutiny of the international community. Moreover, they can be expected to be the first ones to embrace insights from the field of cyberjustice to a significant extent.

Enhancing access to and participation in such mechanisms, rendering them more cost-efficient and facilitating information-sharing would correspond to generally accepted norms relating to both international human rights and justice. However, cyberjustice initiatives may also entrench an already common ‘toolkit approach’ in the field of transitional justice. This article builds on recent critiques of the dominant legalistic and normatively driven transitional justice paradigm and argues that transitional justice + cyberjustice hence risks furthering a technocratic top-down approach that unduly limits creative solutions. By adopting a critical legal-pluralistic approach that conceives individuals as law-creative actors and that is cognizant of the close relationship between means and ends, the article imagines ways of benefiting from the promises of transitional justice + cyberjustice.

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1 The perhaps somewhat puzzling title of this article – while not implying that the article itself relies on equations and logics derived from mathematics – ironically echoes the penchant for overly technical language that reserves transitional justice discourses to the so-called professional.

2 Benyekhlef, K., Amar, E. and Callipel, V., ‘ICT-Driven Strategies for Reforming Access to Justice Mechanisms in Developing Countries’, in Wouters, J. et al. (eds.), The World Bank Legal Review, Volume 6. Improving Delivery in Development: The Role of Voice, Social Contract, and Accountability (2015), 329–30.

3 For a theoretical argument on this relationship see Fuller, L., ‘Means and Ends’, in Winston, K.I. (ed.), The Principles of Social Order: Selected Essays of Lon L. Fuller (1981), 61 .

4 Macdonald, R.A., ‘The Swiss Army Knife of Governance’, in Eliadis, P., Hill, M.M. and Howlett, M. (eds.), Designing Government: From Instruments to Governance (2005), 203, at 207. For the importance of ‘process pluralism’ see Menkel-Meadow, C., ‘Peace and Justice: Notes on the Evolution and Purposes of Legal Processes’, (2006) 94 Georgetown Law Journal 553 .

5 Kleinhans, M. and Macdonald, R.A., ‘What is a Critical Legal Pluralism?’, (1997) 12 Canadian Journal of Law and Society 25, at 38.

6 By way of example, in her seminal book Transitional Justice, Ruti Teitel aims to ‘explore the role of the law in periods of radical political transformation’. R.G. Teitel, Transitional Justice (2000), 4. As Christine Bell has pointed out, the concept of ‘transition’ has, in fact, not been defined. Bell, C., ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-Field”’, (2009) 3 International Journal of Transitional Justice 5, at 23. And, as Catherine Turner has noted more recently, ‘there has been remarkably little theorisation of the concept of transitional justice itself’. Turner, C., ‘Deconstructing Transitional Justice’, (2013) 24 (2) Law and Critique 193, at 194.

7 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General, UN Doc. S/2004/616 (3 August 2004), para. 8.

8 For an overview of institutions driven by non-state actors, such as peoples’ tribunals see, e.g., Kampmark, B., ‘Citizens’ War Crimes’ Tribunals’, (2014) 33 (2) Social Alternatives 5 ; Chinkin, C., ‘Peoples’ Tribunals: Legitimate or Rough Justice’, (2006) 24 (2) Windsor Yearbook of Access to Justice 201 .

9 See, among others, the articles published in the International Journal of Transitional Justice. For a recent empirical study, see Fletcher, L.E. and Weinstein, H.M., ‘Writing Transitional Justice: An Empirical Evaluation of Transitional Justice Scholarship in Academic Journals’, (2015) 7 (2) Journal of Human Rights Practice 177 .

10 A few ideas concerning cyberjustice initiatives in the context of transitional justice are sketched in P. Kastner, ‘Cyberjustice in the Context of Transitional Justice’ (Cyberjustice Laboratory Working Paper No. 9), 2013, available at www.cyberjustice.ca/docs/WP009_TransitionnalJusticeAndCyberjustice_en.pdf.

11 For an introduction see K. Benyekhlef and F. Gélinas, Le règlement en ligne des conflits: Enjeux de la cyberjustice (2003).

12 Benyekhlef et al., supra note 2, at 325.

13 Cobban, H., ‘Think Again: International Courts’, (2006) 153 Foreign Policy 22 .

14 For an analysis of the complexity and efficiency of ICTY trials see S. Ford, ‘Complexity and Efficiency at International Criminal Courts’, (2014) 29 Emory International Law Review 1.

15 See, e.g., Salyzyn, A., ‘A New Lens: Reframing the Conversation about the Use of Video Conferencing in Civil Trials in Ontario’, (2012) 50 (2) Osgoode Hall Law Journal 429 .

16 See, e.g., Karnavas, M.G., ‘Gathering Evidence in International Criminal Trials: The View of the Defence Lawyer’, in Bohlander, M. (ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures (2007), 144 . For a comparative analysis of the use of video technique in domestic proceedings, including its psychological effects, see B. Glunz, Psychologische Effekte beim gerichtlichen Einsatz von Videotechnik (2012).

17 Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. IT/32/Rev.40 (2007), Rule 81 bis.

18 For a decision applying these criteria see Prosecutor v. Radovan Karadžić, Decision on Accused's Second Motion for Video Link Testimony for Čedomir Kljajić, Case No. IT-95-5/18-T, T.Ch., 30 May 2013, para. 5.

19 Rules of Procedure and Evidence of the International Criminal Court, ICC-PIDS-LT-02-002/13_Eng (2013), Rule 87(3)(c).

20 On the more general relationship between the rights of the accused and the rights of victims see Zappalà, S., ‘The Rights of Victims v. the Rights of the Accused’, (2010) 8 Journal of International Criminal Justice 137 .

21 On ‘“tribunal-hopping” of staff and prosecutors’, see Bohlander, M., ‘“Statute? What Statute” – Norm Hierarchy and Judicial Law-Making in International Criminal Law at the Example of the Special Tribunal for Lebanon’, (2015) 36 (2) Statute Law Review 189 .

22 Statute of the International Residual Mechanism for Criminal Tribunals, UN Doc. S/RES/1966 (2010), Annex 1, Art. 27.

23 Mégret, F., ‘In Defense of Hybridity: Towards a Representational Theory of International Criminal Justice’, (2005) 38 (3) Cornell International Law Journal 725, at 730.

24 For a 2002 survey among more than 2,000 Rwandans see Longman, T., Pham, P. and Weinstein, H.M., ‘Connecting Justice to Human Experience: Attitudes Toward Accountability and Reconciliation in Rwanda’, in Stover, E. and Weinstein, H.M. (eds.), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (2004), 213 . See also Peskin, V., ‘Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Programme’, (2005) 3 (4) Journal of International Criminal Justice 950 . For misperceptions of the ICTY among the local population see Zacklin, R., ‘The Failings of the Ad Hoc Tribunals’, (2004) 2 Journal of International Criminal Justice 544 .

25 On oftentimes unrealistic and exaggerated expectations vis-à-vis the peace-making capacity of international criminal justice institutions see Kastner, P., ‘Armed Conflicts and Referrals to the International Criminal Court: From Measuring Impact to Emerging Legal Obligations’, (2014) 12 (3) Journal of International Criminal Justice 471, at 479. For a case study of the ICTY and biased perceptions of justice in Croatia see David, R., ‘International Criminal Tribunals and the Perceptions of Justice: The Effect of the ICTY in Croatia’, (2014) 8 International Journal of Transitional Justice 476 .

26 Kellow, C.L. and Steeves, H.L., ‘The Role of Radio in the Rwandan Genocide’, (1998) 48 (3) Journal of Communication 107 .

27 For an account of the event in Lukodi and a discussion of some of the challenges regarding logistics and the cultural relevance of such screenings see L.O. Ogora, ‘Live from the Hague: The Confirmation of Charges Hearing in Lukodi, Northern Uganda’, International Justice Monitor, 22 January 2016, available at www.ijmonitor.org/2016/01/live-from-the-hague-the-confirmation-of-charges-hearing-in-lukodi-northern-uganda/ and ‘Live Screening of Ongwen Hearing in Northern Uganda: Lessons Learned’, International Justice Monitor, 25 January 2016, available at www.ijmonitor.org/2016/01/live-screening-of-ongwen-hearing-in-northern-uganda-lessons-learned/.

28 ICT Facts and Figures: The World in 2015, International Telecommunication Union, May 2015, available at www.itu.int/en/ITU-D/Statistics/Documents/facts/ICTFactsFigures2015.pdf.

29 Aggregate data for 2005–2015 retrieved from the website of the International Telecommunication Union, available at www.itu.int/en/ITU-D/Statistics/Pages/stat/default.aspx.

30 For the use of mobile technology to deliver legal services, for instance by legal clinics in Latin America, see Benyekhlef et al., supra note 2, at 337.

31 ‘Mobile Phones Driving Facebook User Growth in Africa, Where Nigeria, South Africa and Kenya Rule’, Mail & Guardian Africa, 11 September 2015, available at mgafrica.com/article/2015-09-10-mobile-phones-driving-user-growth-in-africa-where-nigeria-south-africa-and-kenya-rule-facebook. See also ‘Internet Use on Mobile Phones in Africa Predicted to Increase 20-Fold’, The Guardian, 5 June 2014, available at www.theguardian.com/world/2014/jun/05/internet-use-mobile-phones-africa-predicted-increase-20-fold.

32 1998 Rome Statute of the International Criminal Court, 2187 UNTS 3, Preamble.

33 Ibid., Arts. 53(1)(c) and 53(2)(c).

34 Robins, S. and Wilson, E., ‘Participatory Methods with Victims: An Emancipatory Approach to Transitional Justice Research’, (2015) 30 Canadian Journal of Law and Society 217, at 221.

35 On the role of the Haitian diaspora community in the establishment of the Commission and the Commission's failure to gain popular support of Haitians more generally, among others because it did not hold public hearings due to security concerns, see Quinn, J.R., ‘Haiti's Failed Truth Commission: Lessons in Transitional Justice’, (2009) 8 (3) Journal of Human Rights 265, at 269, 273.

36 Based on their research in Nepal, Robins and Wilson argue that there is a close connection between poverty and victimhood. Robins and Wilson, supra note 34, at 233.

37 See, e.g., Chinkin, supra note 8.

38 On the ‘apparently natural process of reconciling and healing at the local level’ in Mozambique see Hayner, P.B., Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (2011), 201 . For an exploration of different ‘local realities’ in the context of transitional justice see, for instance, the collection edited by Hinton, A. Laban (ed.), Transitional Justice: Global Mechanisms and Local Realities After Genocide and Mass Violence (2011).

39 On the tendency of transitional justice scholars to equate justice with law, ‘or to view justice as something that can be achieved through the enforcement of human rights law’, see Turner, supra note 6, at 207.

40 E.g., McEvoy, K., ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’, (2007) 34 (4) Journal of Law and Society 411 ; Robins and Wilson, supra note 34. Regarding the fact that transitional justice is normatively driven, it can be noted with Turner that ‘[t]his is not to suggest that there should be no normative orientation to transitional justice. Rather, what is central, is the ability to recognise the potentially coercive effects of the determinate element of law’, Turner, supra note 6, at 207.

41 E.g., Palmer, N., Clark, P. and Granville, D. (eds.), Critical Perspectives in Transitional Justice (2012).

42 Robins and Wilson, supra note 34, at 224.

43 Turner, supra note 6, at 194.

44 The collaborative approach suggested by Benyekhlef, Amar and Callipel in their discussion of the potential of cyberjustice initiatives in developing counties, an approach that ‘minimizes stakeholders’ resistance to technological changes and promotes their understanding and ownership of the project’ (Benyekhlef et al., supra note 2, at 334) certainly attempts to break with the common top-down approach that is part of the dominant development and transitional justice paradigm. However, as it is argued here, this approach might not challenge the paradigm radically enough.

45 Santos, B. de Sousa, ‘Three Metaphors for a New Conception of Law: The Frontier, the Baroque and the South’, (1995) 29 (4) Law & Society Review 569, at 580. Or, as Robins and Wilson write regarding their ‘Participatory Action Research’ in the context of transitional justice, ‘[e]mancipatory research endeavours to side with the powerless and is explicitly political. It produces knowledge exposing the structures and conditions that create victims, and in turn empowers victims to enable social change’, Robins and Wilson, supra note 34, at 221.

46 Bickford, L., ‘Unofficial Truth Projects’, (2007) 29 (4) Human Rights Quarterly 994, at 1034.

47 Clark, P. and Palmer, N., ‘Challenging Transitional Justice’, in Palmer, N., Clark, P. and Granville, D. (eds.), Critical Perspectives in Transitional Justice (2012), 1, at 6.

48 This paraphrases Macdonald's example, ‘I have a Swiss Army Knife. What can I do with it?’, Macdonald, supra note 4, at 225.

49 Ibid.

50 Note that there may also be unforeseen consequences, both positive and negative, that result from using a new tool. On such ‘unforeseen problems’, see ibid., at 228.

51 The only exception is the situation in Georgia, where the ICC Prosecutor was authorized in January 2016 to open an investigation proprio motu.

52 The only exception is a decision of the United Nations Security Council under Chapter VII of the UN Charter, which may trigger ICC jurisdiction over a specific situation even if the state in question has not accepted the ICC's jurisdiction.

53 See, e.g., Mills, K., ‘“Bashir is Dividing Us”: Africa and the International Criminal Court’, (2012) 34 (2) Human Rights Quarterly 404, at 435.

54 Horne, F., ‘Can Personal Narratives Heal Trauma? A Consideration of Testimonies Given at the South African Truth and Reconciliation Commission’, (2013) 39 (3) Social Dynamics 443, at 450.

55 Stein, D.J. et al., ‘The Impact of the Truth and Reconciliation Commission on Psychological Distress and Forgiveness in South Africa’, (2008) 43 (6) Social Psychiatry and Psychiatric Epidemiology 462 . See also Ross, F.C., ‘On Having Voice and Being Heard: Some After-Effects of Testifying before the South African Truth and Reconciliation Commission’, (2003) 3 (3) Anthropological Theory 325 .

56 For the different uses of symbolic reparation in the context of international criminal justice see Mégret, F., ‘The International Criminal Court Statute and the Failure to Mention Symbolic Reparation’, (2009) 16 (2) International Review of Victimology 127 .

57 For a critical analysis of the different interpretations of popular involvement in the gacaca courts see P. Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers (2010), 142–53.

58 C.M. Cole, Performing South Africa's Truth Commission: Stages of Transition (2010), 6 (emphasis added). Moreover, the hearings of the TRC can be considered to have been much more important than the formal output of the Commission, i.e., its final report, written in a language that is not understood by many South Africans and prohibitively expensive for most of them. Ibid., at 7.

59 For a rich study of the ICTR and an analysis of the auditory dimensions of legal experiences more generally, see Parker, J., ‘The Soundscapes of Justice’, (2011) 20 (4) Griffith Law Review 962 .

60 Wallace, A., ‘“Virtual Justice in the Bush”: The Use of Court Technology in Remote and Regional Australia’, (2008) 19 Journal of Law, Information and Science 1, at 15.

61 I would like to thank Elisabeth Roy Trudel for this insight.

62 As an example, the chthonic, talmudic, later roman and islamic legal traditions have greatly influenced each other. See H.P. Glenn, Legal Traditions of the World: Sustainable Diversity in Law (2014), 127.

63 The suggestion to pursue cyberjustice initiatives through a ‘modular approach’, i.e., step-by-step, is therefore welcomed. Benyekhlef et al., supra note 2, at 330–1.

64 The familiarity with information and communication technologies of socially marginalized actors should, however, not be underestimated. For surprising findings regarding individuals who are homeless see Bouclin, S. and Denis-Boileau, M.-A., ‘La cyberjustice comme réponse aux besoins juridiques des personnes itinérants: son potentiel et ses embûches’, (2013) 31 Windsor Yearbook of Access to Justice 23 .

65 For an analysis of the external and intrapsychic dynamics of the encounters between victims/survivors and perpetrators after mass trauma see Gobodo-Madikizela, P., ‘Empathetic Repair after Mass Trauma: When Vengeance is Arrested’, (2008) 11 (3) European Journal of Social Theory 331 .

* D.C.L. and LL.M. (McGill University); Dr. iur. and Mag. iur. (University of Innsbruck); Assistant Professor, Faculty of Law, The University of Western Australia []. I would like to thank Elisabeth Roy Trudel as well as the anonymous reviewers for their useful comments.

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