Category Archives: Institutions

The Proof is in the Pudding: The Value of Traditional Justice Mechanisms for Post Conflict Africa

justiceThe dynamics of contemporary conflicts reveal the difficulties inherent in countries transitioning from conflict to peace and has given birth to transitional justice. The latter is the field of study where justice is not relegated to criminal or retributive justice only but to a holistic range of processes, the ambit of which includes accountability, truth recovery and reconciliatory processes.  Kofi Anan former UN Secretary General defines transitional justice as the “ full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation.”  In keeping within these processes and within this framework, particularly with regard to Africa, there has been resurgence in the use of traditional or local justice mechanisms.  In this blog I will thus briefly attempt to highlight the political contingencies that certain states face, which catalyze the use of traditional justice mechanisms and make it so popular within the African transitional justice landscape. I will contend that in some instances traditional mechanisms can adequately address massive human rights violations and establish peace and reconciliation in post-conflict settings. I suggest that the value of traditional justice within politically laden contexts is that they act as catalysts for the promotion of unity. They draw on cultural and religious linkages of interconnectedness that are of value to many African societies, such as the way in which ubuntu was ingrained in the TRC process and the traditional strands of Gacaca conformed into a modern version of Gacaca. This therefore, arguably creates a more “culturally familiar and socially secure” space for people to participate in.   Continue reading

Why is a legal “case” literally called a “desk” in Chinese?

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Trials in China largely consist of written documents collected in a dossier rather than in oral debates. This perception and administration of (criminal) justice is deeply entrenched in China’s legal culture, which can be well illustrated by China’s peculiar terminology on (criminal) trial.  Continue reading

Procedural review: a solution for the European Court of Human Right’s problems?

ECHRHuman rights cases often concern politically sensitive matters. An example is the case the European Court of Human Rights decided two weeks ago on the Beslan hostage taking drama. In 2004, about 800 children and 300 of their parents were taken hostage in a school in Beslan, Russia, and were held in the school building under very harsh conditions. Several of the male hostages were executed in full view of the children. After unsuccessful negotiations with the hostage takers, the authorities decided to storm the school and end the siege. Much is unclear about what happened, but some powerful explosions occurred, killing dozens of people, and a fire broke out, which killed even more children and their parents. Over 330 people lost their lives and hundreds more were wounded. Not satisfied with the way in which the authorities responded to the occurrences, some of the victims and their relatives approached the European Court of Human Rights and asked it to examine if the Russian authorities had done enough to protect their lives and safety. Given the context of terrorism and civil strife in the North Caucasus, the case was of tremendous political sensitivity. Moreover, the facts were disputed and it was far from clear who should be considered to bear primary responsibility for the killing of so many children and their parents – the terrorists or the Russian authorities. Clearly, thus, this is an extremely hard case for the European Court of Human Rights to decide, and the question may arise what approach it should choose in dealing with it. Continue reading

The Rainy Season in Java: Researching the Role of Islamic Law and Institutions in Promoting Women’s Right to Family Planning in Indonesia

blogFraserSix weeks of melting humidity, spicy food, tropical vegetation, and endless traffic. I was in Indonesia to research how women’s reproductive rights and family planning are protected, with a particular focus on the role of Islamic laws and institutions. This is a complex topic, requiring expertise in matters of women’s rights, public health, demographics, and Islamic law. My visit to Indonesia was part of a crash course in all these fields – a type of sink or swim scenario. My experience there highlighted the role of non-state actors in the promotion and protection of human rights, and the need for domestic constituents working within their communities to secure such rights. I chose Indonesia as my case study as it is the largest Muslim state in the world, has strong plural legal systems and Islamic institutions, and has faced barriers in promoting and protecting women’s reproductive rights. As it turned out, Indonesia was an excellent choice, and a good teacher.

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Unity of law in the application of the duty of consistent interpretation?

This blog considers whether unity of law should be strived for in the EU law remedy of the duty of consistent interpretation and, if so, how this could be achieved. I explain why it is necessary to differentiate between the national and the EU level when addressing this question. I argue that unity of law is not a pie in the sky on the EU level but that, on account of differences in the national methods of interpretation, the degree of unity will probably not be the same on the national and the EU level. To conclude this blog, I suggest three ideas to achieve a high degree of unity in the application of the duty of consistent interpretation on the national level, and that the Dutch could perhaps learn something from the Germans in this respect.
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Why the Tribunal Dealing with the South China Sea Dispute Should Step Aside to Make Way for a Negotiated Settlement

 2000px-south_china_sea_location_map-svgIncreasingly, in the West, in the class rooms of law schools and offices of foreign ministries, international law is being associated exclusively with courts and tribunals. The idea seems to be that something can only be regarded as law if it emanates from an international court. This judicialization of international law overlooks the fact that these international bodies owe their existence to treaties, which are concluded by states, which still are the main actors in international law. Continue reading

Jeckyll and Hyde in Strasbourg

dr_jekyll_and_mr_hyde_poster_edit2Having a split personality is usually not seen as a positive thing. Not for the outside world, and not for the person itself. Robert Stevenson’s novel about Dr Jekyll and Mr Hyde famously showed how the constant shifting between personalities can almost destroy someone. A clear and unified self-perception and image is the preferred style of identity in almost all fields of life and practice, from organizational science to marketing or psychology. Choices have to be made for the sake of clarity and efficiency, but also for the mere functioning of a person or organization it seems.

From this perspective, it is no surprise that the history of the main guardian institution of the ECHR, the European Court of Human Rights, which celebrated its 50th anniversary on the 4th of November, has been marked by an almost constant discussion about the Court’s role and focus. The text of the Convention itself seemed straightforward enough about the function of the Strasbourg Court. It states in Article 19 that the Court was created “to ensure the observance of the engagements undertaken by the High Contracting Parties.” But the ways in which this can be done has led to deep soul-searching within the Court and a lot of debate outside of it. Should the Court focus on the role of provider of individual justice in the applications that represent the large bulk of its docket? Or should it, for principled or pragmatic reasons take an altogether different, more constitutional role, ruling on principles and structures rather than the nitty-gritty of each individual case? Continue reading

The revolt of the judges

 justitiaJudges in the Netherlands are rebelling against the endless series of changes in the organization of the judiciary. What is occurring is more than a simple merger; the organization has become too dominant in the judges’ work.

Judges do substantive work. They give judgments in other people’s disputes. To be able to do that work well they must be properly educated and trained. High demands are imposed on judges. Judges’ work is very diverse. The work of a family-court judge is usually content-wise less difficult than the work of commercial court judge. But where the commercial court judge can immerse himself in a difficult legal puzzle, the family-court judge must be able to deal with strong emotions and accommodate them during a hearing. With the internationalization and the Europeanization of the law, the judicial tasks have become more difficult substantively. This is the case in all legal areas. The Council for the Judiciary was installed to lead the necessary changes within the judges’ work in the right direction. It appears that now the Ministry of Security and Justice and the Council for the Judiciary have overplayed their hand in relation to the judges. Continue reading

Change is timeless

rustThis week I realized that during my entire professional life I have had to deal with changes. This already started when I was still working at the UU from 1985 until 1994. Simply in the education I experienced the semester system (2 teaching periods), the ‘block system’ (5 teaching periods) and the trimester system (3 teaching periods). At that time most colleagues found these changes a good idea. But good ideas are also time-bound. So I was not surprised that when I returned to the UU in 2012, I found a system of four teaching periods.

And, once again back in time, I was only working for a few years at the courts when major changes were announced. Since 1999, the courts have immensely professionalized and modernized themselves as an organization. As a court manager I have stood on the front line for ten years, it was a golden age to witness and – on a modest scale – help shape. Continue reading