Transitional Justice in Regional Human Rights Courts and the Paradoxes of International Justice

Event date: 
1 Mar 2017
5:30pm to 8:00pm
Venue: 
The Boardroom, UNSW Law
Topic: 
Transitional justice
Speaker: 
Lucas Lixinski and David Kosa
Position: 
David Kosa is the Head of the Judicial Studies Institute, Lucas Lixinski is Senior Lecturer at Faculty of Law
Cost: 
Free
Enquiries: 
Any questions? Call us on 9385 1803

The AHRCentre and the UNSW Network for Interdisciplinary Studies of Law invite you to a seminar with David Kosar and Lucas Lixinski.

DRINKS: 5.30 – 6.00 pm

SEMINAR AND DISCUSSION: 6.00 – 8.00 pm

Download a copy of the paper here.

Abstract:

This paper explores the ways in which transitional justice (TJ) has been articulated and adjudicated by two regional human rights courts: the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR). Both courts have extensive case law dealing with the matter, but seem to approach the goals of TJ justice quite differently. On the one hand, the IACtHR, since its very first case (involving enforced disappearances), through to its judgments on the legality of amnesties as part of transitional justice compromises domestically, has had TJ cases as an essential part of this docket. In responding to these cases, the IACtHR seems to be very much focused on transitional justice as a triad: investigate-prosecute-punish. This push for more accountability, and for TJ as criminalization, is part of what Karen Engle calls “the turn to criminal law in international human rights”. This approach has successfully led to a reduction of impunity across Latin America, and the strengthening of the rule of law through the language of international human rights. But an unintended consequence of this focus is to preclude other approaches to TJ that may highlight harmony over retribution.

On the other hand, the ECtHR has focused on a much broader set of measures, including for instance lustrations, memorials, and property rights, among others. As such, it has seen TJ as a much more nuanced spectrum, of which prosecutions are just one fairly small part. Also importantly, TJ is seen as only a small part of the ECtHR’s docket, which is for the most part concerned with other issues (particularly procedural rights and the administration of justice in mature democracies), and TJ cases are somewhat disruptive of this narrative of international human rights as the constitution for mature European democracies. An unintended consequence of this approach is to look at TJ, or the revisiting of past atrocity that is part of adjudicating TJ, as disruptive of the achievements of democracy and rule of law, rather than conducive to them. Therefore, across the Atlantic, different understandings of TJ inform different visions of “international justice” as part of the mandate of these courts. It oscillates between international justice as a stabilizing force (ECtHR), to international justice as transformative (IACtHR). TJ can thus be perceived either as a proxy for the rule of law, or an obstacle to it, depending on which court one relies upon. This paper attempts to reconcile these two conceptions by exploring the case law of the two courts, and comparing them with broader issues of engagement of these two courts with the rule of law, and narratives of international justice. Bearing in mind the approaches of neither court are fully satisfactory, we argue that the project of international justice’s reliance on TJ can be a victim of its own success, and the compared jurisprudence of these courts raise serious challenges about the relationship between the rule of law and international justice.

 

David Kosa is the Head of the Judicial Studies Institute (JUSTIN) at Masaryk University Faculty of Law (Brno, Czech Republic). He earned his M.A. in Law at Masaryk University, LL.M. in Human Rights Law at Central European University, and J.S.D. at New York University School of Law. He clerked for a Justice and then the Vice-President of the Supreme Administrative Court, and for a Justice of the Constitutional Court of the Czech Republic. In 2016 he was awarded the ERC Starting Grant to study the effects of judicial self-government (“JUDI-ARCH – The Rise of Judicial Self-Government: Changing the Architecture of Separation of Powers without an Architect”, 2016-2021). He is the author of Perils of Judicial Self-Government in Transitional Societies (CUP, 2016). David has published in a number of high-ranking journals such as the American Journal of International LawInternational Journal of Constitutional LawEuropean Constitutional Law ReviewGerman Law Journal and International Journal of Refugee Law, and is a member of several learned societies (ASIL, ECPR, ESIL, IPSA, ICON-S, and the Czech Society of European and Comparative Law). David’s research interests include constitutional law and theory, judicial studies, international law, human rights, refugee law, and transitional justice.

 

Lucas Lixinski is Senior Lecturer at Faculty of Law, UNSW Australia. He holds an LL.B. from the Federal University of Rio Grande do Sul (Brazil), LL.M. in Human Rights from Central European University, and a PhD in Law from the European University Institute. He has clerked at the Inter-American Court of Human Rights, and, prior to joining UNSW Law, held a position at the Rapoport Center for Human Rights and Justice at the University of Texas School of Law. He has published widely in high-ranking journals such as the American Journal of International LawLeiden Journal of International Law, International Journal of Transitional Justice, London Review of International Law, and European Journal of International Law. He is a member of several learned societies (ASIL, ANZSIL, ESIL, ACHS), and Director of the International Law Association. Lucas’s research focuses primarily on international heritage law and international human rights law, but also extends to other topics of international and comparative law including natural resources law, transitional justice, and Indigenous rights.