What Internationals Know: Improving the Effectiveness of Post-Conflict Justice Initiatives

The international community is intensely involved in the field of post-conflict justice. The United States, the United Nations, and many other international organizations, governments, and institutions have contributed to hundreds of trials and programs aimed at achieving post-conflict justice goals.Through these initiatives, the field of post-conflict justice has developed rapidly over the last thirty years. This Article contributes to the literature on the effectiveness of post conflict justice initiatives by examining the relationships between internationals’ job movement and their development and transfer of knowledge from one post-conflict setting and institution to another. During interviews with internationals, I observed differences in how internationals in rule of law and international criminal law described the dynamics of job movement and knowledge-related processes in their areas of work. In this Article, by examining these divergences, I identify factors that influence internationals’ development and use of knowledge. These factors include the types of knowledge that are regarded as most critical for the work, the nature of the work, the degree of similarity among the relevant institutions and post-conflict states, and the amount of contextualization to local settings that is required, among other features

Function and Dysfunction in Post-Conflict Justice Networks and Communities

The field of post-conflict justice includes many well-known international criminal law and rule of law initiatives, from the International Criminal Court to legal reform programs in Afghanistan and Iraq. Less visible, but nonetheless vital to the field, are the international staff (known as internationals) who carry out these transitional justice enterprises, and the networks and communities of practice that connect them to each other. By sharing information, collaborating on joint action, and debating proposed legal rules within their networks and communities, internationals help to develop and implement the core norms and practices of post-conflict justice. These modes of collaboration are particularly important because the field\u27s fundamental norms and practices are still evolving dramatically. But at times, these networks and communities are dysfunctional. Then, internationals\u27 ability to engage in robust dialogue and work together is compromised, to the detriment of the effectiveness of their work and the maturation of the field as a whole. In examining these issues, this Article draws on a series of interviews with internationals who have worked in post-conflict justice

Parallel Courts

Even as American attention is focused on Iraq’s struggles to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society – Kosovo – has just begun negotiations to resolve the question of its political independence. The persistent ethnic divisions that have obstructed Kosovo’s efforts to establish multi-ethnic “rule of law” offer lessons in transitional justice for Iraq and other states. In Kosovo today, two parallel judicial systems each claim absolute and exclusive jurisdiction over the province. One system is sponsored by the United Nations administration in Kosovo and is mostly, although not exclusively, staffed by Kosovar Albanians. The other system, run primarily by Kosovar Serbians, is essentially a set of courts-in-exile, the remnants of the previous judicial system that existed before the Serbian government was forced out of Kosovo by NATO bombing in 1999. The parallel courts present a transitional justice issue that is as crucial to rebuilding Kosovo’s post-conflict society as convening a truth commission or conducting criminal trials. On one level, the existence of the parallel courts is a manifestation of the ongoing political dispute over sovereignty. For the residents of Kosovo, the lack of any recognition of judgments between these systems has also created legal chaos in their everyday lives. Conflicting judgments have been issued in civil cases, and criminal defendants are subject to prosecution and punishment in both systems. The palpable injustices that result from these conflicting judgments and repeated trials are undermining confidence in the ongoing process of legal and political transition. This article undertakes an assessment of Kosovo’s parallel systems and of the existing legal models for recognition and enforcement of judgments, with the aim of proposing an appropriate framework for Kosovo to recognize the Serbian parallel judgments. In my survey of the relevant national and international models, I find that each strives to strike a balance between two competing values: (1) certainty in the finality and consistency of legal judgments and (2) ensuring those judgments’ essential fairness. Using these two values as a guide, I assess whether and how the existing models might be adapted to Kosovo’s context, concluding that the proper balance between legal certainty and fairness will permit categorical recognition of most parallel civil judgments, but will require case by case, discretionary review of criminal judgments. Finally, from this analysis, I develop a set of factors for other transitioning states to consider when faced with judgments from ethnic and religious legal institutions or other parallel courts

Sending the Bureaucracy to War

Administrative law has been transformed after 9/11, much to its detriment. Since then, the government has mobilized almost every part of the civil bureaucracy to fight terrorism, including agencies that have no obvious expertise in that task. The vast majority of these bureaucratic initiatives suffer from predictable, persistent, and probably intractable problems - problems that contemporary legal scholars tend to ignore, even though they are central to the work of the writers who created and framed the discipline of administrative law. We analyze these problems through a survey of four administrative initiatives that exemplify the project of sending bureaucrats to war. The initiatives - two involving terrorism financing, one involving driver licensing, and one involving the adjudication of asylum claims - grow out of the two statutes perhaps most associated with the war on terrorism, the USA PATRIOT Act of 2001 and the REAL ID Act of 2005. In each of our case studies, the civil administrative schemes used to fight terrorism suffer from the incongruity of fitting civil rules into an anti-civil project, the difficulties of delegating wide discretion without adequate supervision, and the problem of using inexpert civil regulators to serve complex law enforcement ends. We conclude that anti-terrorism should rarely be the principal justification for a new administrative initiative, but offer some recommendations as to when it might make sense to re-purpose civil officials as anti-terrorism fighters

Reassesing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks

The international community has long debated its role in redressing grave atrocities like war crimes and crimes against humanity. This Article suggests that this debate has focused too much on trials in international and hybrid courts as the primary conduit for international contributions to justice in post-conflict states. It proposes that the international community should look instead to national courts as the primary venue for such trials and to transnational networks as an effective mechanism for international involvement. Key characteristics of this model include: (1) reliance on transnational networks to convey international criminal law and international resources into national settings; (2) hybrid international-national processes in which international actors play a supporting, rather than a controlling, role; and (3) integration of international support for atrocity trials into broader efforts to rebuild national judicial systems

Minority Rights, Minority Wrongs

Many of the new democracies established in the last twenty years are severely ethnically divided, with numerous minority groups, languages and religions. In conflicts between minorities and the state, human rights and minority rights values are one set of battlefields, and claimed abuses are the weapons of choice for all sides. National human rights institutions stand at the center of these conflicts. Minority groups should be a primary constituency for these institutions. Nonetheless, only a few of the human rights institutions in severely divided states report developing programs directed at minorities, and many shy away from involvement in their conflicts. This article is based on a qualitative study of the work of national human rights institutions with minority groups worldwide, the first study of its kind. Here, I report my findings on the patterns and trends in this work. I then consider the implications of these results for the fundamental questions of the field: How can new democracies manage the inevitable conflicts between minority claims, liberal rights, and other state interests? Can minority rights theories that have been developed in well-established liberal democracies be exported to new democracies and severely divided states? For now, the experiences of national human rights institutions offer a useful lens on these questions. By serving as a forum for dialogue between minority groups and states, they could also play a role in addressing these concerns

Beyond Rights: Legal Process and Ethnic Conflicts

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes. This article explores that possibility, reviewing the interdisciplinary literature on the nature of ethnic conflicts, the legal literature on legal processes and conflict resolution, and the example of Ethiopia. Ethiopia is sharply divided by ethnicity, with more than eighty ethnic groups. It has attempted to design legal processes that can respond to its ethnic groups and their conflicts, creating a unique ethnic conflict resolution system. The Ethiopian system does not offer a blueprint for ethnic conflict resolution. It does, however, call upon us to consider whether and how legal processes might be able to ameliorate the threat of ethnic conflict