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ISSN 2611-8858


Transitional Criminal Justice

Second Best? Truth Commissions as a Transitional Justice Mechanism

Book Review: J. Sarkin, The Global Impact and Legacy of Truth Commissions, Intersentia, Cambridge-Antwerp-Chicago, 2019

What Kind of Memory for What Kind of Criminal Law?

What is the relationship between criminal law and memory? This article analyzes this complex relationship from different perspectives, such as the differences between a judge and a historian, the issue of the juridification of history and that of jurifidied history, the role of the judge as a vector of memory or constructor of memory, the relationship with free speech. After focusing on international criminal law and on the cases in which judicial his- toriography is asked to be a vector of memory and reconstruction of events and faults, the article analyses the re- verse dynamics. This refers to those cases in which the judge receives the memory from the outside, as the product of a public discourse involving central and local authorities, political forces, movements and, above all, the media. These mechanisms often intend to demonize the adversary on the political level, undermining its consensus.

Time to remember

Time and memory are essential elements of our lives, destined to shape all our choices. The memory of some events constitutes the basis for the founding elements of the political and cultural identity of a judicial system and shapes its constitutional pact.The entry of criminal law into the field of memory,however,shifts the meaning of its relationship with time, introducing a peculiar relationship with the present that structurally relates to the use of the criminal tool. The present contribution reflects on the possible role in our legal system for norms that introduce criminal sanctions against those who suggest a different reconstruction of past events.

Can we make memory through justice?

Is it possible to build memory through justice? The contribution tries to reflect on this question: it is inspired, in particular, by the so-called "statue wars" and by the widespread claims for justice that underlie the way in which the memory is "monumentalized" in the public space. The author then develops a critique of the approach that usually legislators and judges take towards memory. Finally, he argues the existence of concrete possibilities of "bulding memory through justice", provided that it happens in appropriate institutional places or moments, based on confrontation and debate.

We Cannot Make Memory Through Justice

The present contribution takes a clear position on the relationship between memory and justice: we cannot build memory through justice and we cannot because memory and justice are competing concepts; they are, in many respects, the negation of oneanother. This statement is justified through the proposition of seven paradoxes. Through them, the author justifies the alternativeness of the memory-based system over that based on justice, while confessing a certain skepticism towards both of them.

The Colombian Peace Process and the Special Jurisdiction for Peace

In 2016, the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army concluded the Final Peace Agreement, which marks the official end of more than 50 years of internal conflict. At the heart of this agreement is the so-called Integral System of Truth, Justice, Reparation and Non-Repetition, which includes different mechanisms. This article focuses on the Special Jurisdiction for Peace, describing its structure, the way it operates and presenting the main controversies evolving around it.

Criminal Justice and Memory in Transitional Contexts. The Case of Colombia

The binomial (criminal) justice / memory inevitably appears in the contexts of transition, of which justice and memory are fundamental ingredients. This contribution offers some reflections on the meaning of these concepts and in particular on the concept of memory, more precisely "historical memory", a controversial term (which here we propose to replace with that of collective memory) that often appears in transitional contexts, and on an apparent oxymoron, according to which criminal justice is understood as functional to the construction of a collective memory but at the same time incapable of fulfilling this function. These reflections are inspired by the Colombian transitional experience, which is particularly interesting and complex and where criminal justice has always maintained an undeniable centrality in all the various transitional designs that have occurred over time. The analysis of some key aspects of the two main mechanisms of the Co- lombian peace process, namely, the Justice and Peace Process and the integral System of Truth, Justice, Repara- tion and Non-Repetition, allows us to observe that the construction of memory in the transitional processes is a mediated objective, which is reached through a prior work of ascertaining the facts, clarification of the dynamics and recognition of responsibility. Several actors contribute to this work, among which two stand out: on the one hand, the Truth Commissions and, on the other, criminal justice, which nonetheless in these contexts finds itself narrowed through a series of limits, both intrinsic and contingents

Perspectives on South Africa’s Unfinished Business of Dealing with Past Atrocities, and Considering Present Priorities

South Africa’s celebrated and relatively peaceful transition from apartheid to democracy in the early 1990’s is anew the subject of scrutiny, debate and controversy. Given the 400 years of colonialism, apartheid and structural violence, transitional justice in South Africa must be viewed in the context of deep political, social and economic transformations still underway. While the Truth and Reconciliation Commission (TRC) helped to facilitate these transformation processes, the democratic, post-apartheid state’s failure to prosecute apartheid-era human rights violations despite explicit recommendations by the TRC, has left the normative legacy of the TRC in doubt. This paper explores the implications of this aspect of South Africa’s transition, considering current priorities and discourses.

Transitional Criminal Justice after German Unification

This article deals with the prosecution of systematic crimes committed in the German Democratic Repub-lic (GDR). The prosecution of these crimes already started in 1990, in the final days of the GDR. After German unification on October 3rd 1990 the courts of the Federal German Republic continued to con-duct trials until 2005. After clarifying the historical and political background, we will explain the legal framework of these trials and analyze the case law. The question of retroactivity will be dealt with, and some basic principles of the prosecution of GDR-state criminality will be identified. In addition, we will discuss strengths and weaknesses of the criminal trials in establishing the truth on the GDR-past.

Time and International Criminal Justice

Both the States and the international civil society are now unanimous: International criminal justice is too slow and therefore too expensive. International courts judge late, slowly and with difficulty, because of a multitude of factors, either endogenous or exogenous. In order to speed up the judicial proceedings, it is probably necessary to accelerate the trials, to increase the control over the procedure and to rethink the decisions, without ever sacrific- ing the rights of the defence or the fundamental guarantees of a fair trial. Nonetheless, we must also, and above all, standardize our conception of time, our measurement of time and our appreciation of time: new institutions such as a Higher Council of the International Judiciary and an International Inspectorate of Judicial Services could be set up by the States. Strengthening efficiency without jeopardizing the quality of justice is perhaps the main challenge of judicial globalization.