Designing Bespoke Transitional Justice: A Pluralist Process Approach

Although many scholars agree that contemporary transitional justice mechanisms are flawed, a comprehensive and unified alternative approach to accountability for mass violence has yet to be propounded. Like many international lawyers, transitional justice theorists have focused their assessment efforts on the successes and failures of established institutions. This Article argues that before we can measure whether transitional justice is working, we must begin with a theory of what it is trying to achieve. Once we have a coherent theory, we must use it ex ante, to design effective transitional justice mechanisms, not just to assess their effectiveness ex post. Drawing on several scholarly methods, I posit that effective transitional justice mechanisms are ones that successfully reconstruct social norms opposing mass violence. Because norm generation is an inherently communal and contingent social process, transitional justice ought to be primarily locally controlled and always precisely tailored to particular events and societies. In a word, it must be bespoke. This Article seeks to replace a universalist vision of transitional justice-imposition of a uniform set of substantive valueswith a pluralist approach to transitional justice-reconciliation of competing value frames through an inclusive process

Designing Bespoke Transitional Justice: A Pluralist Process Approach

Although many scholars agree that contemporary transitional justice mechanisms are flawed, a comprehensive and unified alternative approach to accountability for mass violence has yet to be propounded. Like many international lawyers, transitional justice theorists have focused their assessment efforts on the successes and failures of established institutions. This Article argues that before we can measure whether transitional justice is working, we must begin with a theory of what it is trying to achieve. Once we have a coherent theory, we must use it ex ante, to design effective transitional justice mechanisms, not just to assess their effectiveness ex post. Drawing on several scholarly methods, I posit that effective transitional justice mechanisms are ones that successfully reconstruct social norms opposing mass violence. Because norm generation is an inherently communal and contingent social process, transitional justice ought to be primarily locally controlled and always precisely tailored to particular events and societies. In a word, it must be bespoke. This Article seeks to replace a universalist vision of transitional justice-imposition of a uniform set of substantive valueswith a pluralist approach to transitional justice-reconciliation of competing value frames through an inclusive process

Review of: Benedetta Faedi Duramy, Gender and Violence in Haiti: Women\u27s Path from Victims to Agents

Jaya Ramji-Nogales reviews Professor Duramy\u27s book, Gender and Violence in Haiti: Women\u27s Path from Victims to Agents (Rutgers University Press, 2014)

“The Right to Have Rights”: Undocumented Migrants and State Protection

This is the published version

Refugee Roulette: Disparities in Asylum Adjudication

This study analyzes databases of merits decisions from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge. Using cross-tabulations based on public biographies, the paper also explores correlations between sociological characteristics of individual immigration judges and their grant rates. The cross tabulations show that the chance of winning asylum was strongly affected by whether or not the applicant had legal representation, by the gender of the immigration judge, and by the immigration judge\u27s work experience prior to appointment. In their conclusion, the authors do not recommend enforced quota systems for asylum adjudicators, but they do make recommendations for more comprehensive training, more effective and independent appellate review, and other reforms that would further professionalize the adjudication system

A Collective Response to Mass Violence: Reparations and Healing in Cambodia, in Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts

This piece (authored by Jaya Ramji-Nogales) examines an area long neglected in current discussions of Khmer Rouge accountability-reparations for victims. It discusses the Khmer Rouge tribunal law\u27s silence on this matter and presents several arguments, drawing on international human rights law, for the tribunal\u27s awarding of reparations notwithstanding this textual blindspot. The chapter then reviews the various goals reparations can achieve-restitution, rehabilitation, and reconciliation; the types of reparations that can be awarded; and the mechanisms, individual versus collective, that can be used to distribute reparations. Turning to the Cambodian context, it emphasizes the need for a comprehensive study to understand the opinions of Cambodians with respect to reparations. The piece concludes by suggesting several alternative approaches to reparations that are sensitive to Cambodian attitudes and the unique Cambodian cultural context. The chapter comes from a book (co-edited by Beth Van Schaack and Jaya Ramji-Nogales) that explores the legal issues surrounding accountability for the crimes of the Khmer Rouge and crimes of mass violence more generally. Comprising chapters authored by legal academics, lawyers, historians, artists, and others, the volume analyzes the complex problems inherent to such accountability efforts, and presents novel ideas as to how to address them. Three chapters examine aspects of accountability from the Cambodian and/or Theravada Buddhist perspective, a viewpoint that has rarely been considered before in this context. Other chapters present explanations for the failure of past accountability efforts, discuss holes in the law authorizing a tribunal for senior Khmer Rouge leaders, and outline the evidence available and how it can be used for such a trial. In addition to examining accountability in Cambodia from multiple perspectives, the book presents questions and ideas that affect all efforts to hold perpetrators accountable after widespread human rights violations. One particularly ground-breaking chapter questions the focus on top leadership in genocide trials, using Cambodia as a case study, and other chapters point to new directions in amnesty and reparations scholarship and practice. The book is accompanied by an online appendix of primary documents relevant to past, current and future accountability mechanisms in Cambodia

Undocumented Migrants and the Failures of Universal Individualism

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This Article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants in international human rights law, which are far fewer than often assumed. The Article demonstrates through a close analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by suggesting three alternate approaches--substantial reform of the current human rights system state-based political responses, and social movements--to protect undocumented migrants and other vulnerable populations