The 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
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
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.
Writing something about the Urgenda judgement (Rechtbank Den Haag 24 June 2015, ECLI:NL:RBDHA:2015:7145) might seem abundant at this point. After all, a lot of literature about the judgement has already been published. Is the judgement really so special? That can, with good reason, not be denied.
The Urgenda Foundation is the organisation for sustainability and innovation which aims to together with companies, governments, civil organisations and individuals, make the Netherlands sustainable more quickly. This foundation has filed a civil case against the State, because according the foundation while the government has recognized the urgency of the climate problems, it has taken insufficient action to prevent dangerous climate change. In the Urgenda judgement the State, on the basis of the standard of due care observed in society as set out in article 6:162 of the Dutch Civil Code, is subject to a periodic penalty payment ordered to reduce the annual greenhouse gas emissions by 2010 by at least 25 percent compared to the 1990 levels. The relevant international provisions for the case cannot be relied on at law at the national judge, in the sense that they are unsuitable to be directly applicable as positive law in the national legal system and they are therefore not binding on all persons as provided in articles 93 and 94 of the Dutch Constitutions. However, the court applies the so-called consequential effect. The latter means that the court, in applying the national open standards, such as the standard of due care observed in society, takes into account international provisions that are not binding on all persons as provided in articles 93 and 94 of the Dutch Constitution.
A few weeks ago, a journalist announced on VGNyhetter, a major Norwergian news website, that 19 Norwegian judges have heard cases in which insurance companies were parties, while the judges had shares in these insurance companies. The journalists Frank Haugsbø and Geir Olsenen have skilfully embroidered their story, including stories from the parties who lost those cases. Those parties now, of course, say that they could have saved a lot of money and effort, or that they would have challenged the judges if they would have known. The question is whether they would have received a different judgement then. Continue reading
Earlier this year, the Council for the Judiciary released a plan to establish a Netherlands Commercial Court (NCC). In the plan it was stated that the NCC would start on the 1st of January 2017. By now, a starting date of July 1st, 2017 seems more realistic. The upcoming Brexit makes this, in itself already stimulating, plan even more interesting. Will this boost the chances for this special provision for international commercial cases in Amsterdam? In this blog I will discuss the reasons for this initiative, the innovative aspects of it and its chances of success in light of the Brexit. Continue reading
Judges 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
This 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