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Transitional Justice: A Colonizing Field?  [cached]
Stephanie Vieille
Amsterdam Law Forum , 2012,
Abstract: Throughout its development, the transitional justice scholarship has favored the use and implementation of specific judicial institutions, including courts and tribunals, to carry out justice and hold individuals accountable in the aftermath of mass violations of human rights. These institutions, I argue, are rooted in a neo-liberal framework that sanctions the rule of law and a certain understanding the nature of law and justice. The transitional justice literature is informed by certain assumptions about the ‘goodness’ and ‘neutrality’ of the rule of law, which it blindly exports. I contend that the unquestioned promotion of the rule of law at the international level is concerning vis-a-vis the feasibility and applicability of the judicial arrangements that are transplanted to a variety of contexts. The universalizing tendency of the legalist paradigm that underlies the transitional justice scholarship and practitioners dictates the kinds of activities that are undertaken in transitional societies.
Does Judicial Independence explain Post-transitional Justice? Puede la independencia judicial explicar la justicia postransicional?  [cached]
Elin SKAAR
América Latina Hoy , 2012,
Abstract: Post-transitional justice in Latin America started in the Southern Cone in the mid-1990s and gradually spread to a number of countries which are seeking to address the human rights violations committed during the authoritarian regimes that dominated the continent from 1970s to the early 1990s. To distinguish trials at the time of transition from trials that take place years into the consolidation phase, this article develops a theoretical framework that explains variations in the propensity to prosecute the military for gross human rights violations (i.e., the number of trials) across time and across countries. The main argument presented here is that constitutional reforms have made Latin American judges more prone to prosecute the military for past human right violations because judges now enjoy more independence from powerful Executives and the hierarchy of the judicial system has loosened, making lower court judges less dependent on their superiors. As a result, judges, especially those sympathetic to a human rights agenda, can push prosecutions more forcefully than they could before. La justicia postransicional se inició en el Cono Sur de América Latina a mediados de la década de 1990 y gradualmente se ha expandido a otros países que buscan afrontar violaciones de derechos humanos cometidas durante los regímenes autoritarios que dominaron el continente desde la década de 1970 hasta inicios de la década de 1990. Para diferenciar los juicios de la transición de los juicios que se llevaron a cabo a os después durante la fase de consolidación democrática, este artículo desarrolla un marco teórico que explica las variaciones en la tendencia a juzgar a los militares por graves violaciones de derechos humanos (por ejemplo, el número de juicios) a lo largo del tiempo y entre países. El argumento principal que aquí se presenta es que las reformas constitucionales han hecho que los jueces latinoamericanos sean más propensos a perseguir a los militares por violaciones de derechos humanos porque los jueces ahora poseen más independencia del Poder Ejecutivo y, además, porque la jerarquía del sistema judicial se ha suavizado, haciendo que los jueces de primeras instancias sean menos dependientes de sus superiores. Como resultado, los jueces –especialmente aquellos afines a la agenda de los derechos humanos– pueden promover procesos judiciales con más energía que antes.
FRAMES OF TRANSITIONAL JUSTICE: SOME APPLICATION IN INTERGENERATIONAL JUSTICE AND RETROACTIVITY”
GABRIEL RADU
Challenges of the Knowledge Society , 2011,
Abstract: The article attempts to evaluate the concept of transitional justice in the sphere of public and academical debates, in different social environments during the transition period in the recent history. The approach will include an overflight over some definitions and interpretation of that concept and an assessment of possible applications of this concept in the reparative (corrective) theories during the political transition. The evaluation of operational dimension of transitional justice will focus primarily the moral grounds invoked in political and juridical debates, and will pursue some applications of the transitional justice in intergenerational justice realm and at the level of the institution of retroactivity. Also, the assessment will focus the moral core of the motivation of judicial decisions in the space of positive law debates, concerning the constitutional and normative dimension.Examination of particular aspects of the transition has raised particular interest in the public agenda of romanian political change. Reparation issues in dealing with the past had always occupied a privileged role in public debate, in social and political problems. Justification for corrective measures during transition period were presented on various occasions in different points of view, but tools and proper institutions in generating legitimate formal-political obligations were absent, threatening the strength of the the political stability. Requirements for application of a corrective, reparative justice, appeared as a consequence of subjective awareness of rights and liberties that positive law of the communist system ignored or assign them like law infrigement. An approach of such rights, with their features should be evaluated in the context of both totalitarian and democratic state. A dialogue with the past becomes more necesary and will contribute to the success of any public policy designed for any possible reparation in the future. Transitional justice could also be a frame for testing the theoretical outcomes of an analytical justice which could bring normative results in intergenerational justice. One of the most important issues which requires an approach in transitional justice perspective remains the institution of retroactivity.
The Concept of a "Decision" as the Threshold Requirement for Judicial Review in terms of the Promotion of Administrative Justice Act
RC Williams
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad , 2011,
Abstract: The Promotion of Administrative Justice Act 3 of 2000 defines administrative action as “any decision [of a specified kind]" taken by specified persons or entities. The Act goes on to define decision as “any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be”, including certain specified categories of decision. The decision in Bhugwan v JSE Ltd 2010 3 SA 335 (GSJ) highlights the distinction between a “decision”, as so defined (which may be amenable to judicial review in terms of the Act) and an inchoate decision (that is not amenable to such review).. The judgment in this case is, to date, the only judicial authority in South Africa on this critical threshold requirement to be established by any applicant for judicial review in terms of the Promotion of Administrative Justice Act.
The Concept of a "Decision" as the Threshold Requirement for Judicial Review in Terms of the Promotion of Administrative Justice Act
C Williams
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad , 2011,
Abstract: The Promotion of Administrative Justice Act 3 of 2000 defines administrative action as “any decision [of a specified kind]" taken by specified persons or entities. The Act goes on to define decision as “any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be”, including certain specified categories of decision. The decision in Bhugwan v JSE Ltd 2010 3 SA 335 (GSJ) highlights the distinction between a “decision”, as so defined (which may be amenable to judicial review in terms of the Act) and an inchoate decision (that is not amenable to such review).. The judgment in this case is, to date, the only judicial authority in South Africa on this critical threshold requirement to be established by any applicant for judicial review in terms of the Promotion of Administrative Justice Act.
Gender and transitional justice in Africa: Progress and prospects*
H Scanlon, K Muddell
African Journal on Conflict Resolution , 2009,
Abstract: During the past few decades, different models of transitional justice (TJ) have developed throughout Africa to try to address the mass human rights abuses that have occurred during conflicts. These mechanisms, both judicial and nonjudicial, have often failed to adequately tackle the extensive gender-based violence that has been prevalent on the continent. This article examines the ways truth commissions, legal mechanisms, reparations, security sector reform efforts, and traditional mechanisms in Africa have dealt with gender-based human rights violations. While recent African TJ mechanisms have been innovative in developing means to address crimes against women, these mechanisms continue to fail victims. This is in large part because the current discourse on gender and transitional justice needs to be broadened to better address women’s experiences of conflict. Future TJ initiatives need to re-examine the types of violations prioritised, and recognise the continuum of violence that exists in pre-conflict and post-conflict societies. It is also important to challenge the transitional justice field to stop reducing sexual-based violence to ‘women’s problems’, and explore how men are affected by the gendered dynamics of conflict.
THE “NE BIS IN IDEM” PRINCIPLE IN THE CASE-LAW OF THE EUROPEAN COURT OF JUSTICE (II). THE ‘FINAL JUDGMENT’ AND ‘ENFORCEMENT’ ISSUES
Norel NEAGU
Lex et Scientia , 2012,
Abstract: Two major events occurred in the recent years have triggered a series of cases in the field of criminal law, having transnational dimension and requiring an identical interpretation of the European law in the Member States. The first one is the “communautarisation” of the Schengen Aquis. The second one is the extension of the jurisdiction of the European Court of Justice over the (former) third pillar (Police and Judicial Cooperation in Criminal Matters). As a result, several cases were referred to the European Court of Justice for the interpretation, inter alia, of the dispositions of the Schengen Convention dealing with criminal matters. This article gives a general overview of the case-law of the European Court of Justice in the field of ‘ne bis in idem’ principle, shortly presenting the legal framework, the facts, the questions addressed to the Court by the national jurisdictions, the findings of the Court, as well as some conclusions on the interpretation of the principle. In this second study on the ‘ne bis in idem principle’ we will deal with the notion of ‘final judgment’ and ‘enforcement’ issues.
Judgment  [PDF]
Ruadhan O'Flanagan
Mathematics , 2007,
Abstract: The concept of a judgment as a logical action which introduces new information into a deductive system is examined. This leads to a way of mathematically representing implication which is distinct from the familiar material implication, according to which "If A then B" is considered to be equivalent to "B or not-A". This leads, in turn, to a resolution of the paradox of the raven.
The consequences of judicial obligations as a politics of transition in post-war Serbia, Bosnia and Herzegovina, and Croatia
Veljanovska Michelle
Temida , 2012, DOI: 10.2298/tem1201179v
Abstract: This paper explores the idea of victimhood from the individual to societal level within the context of transitional justice and reconciliation. The idea of justice and truth has gained considerable prevalence within post-war states in the Balkan region. The reform of the state has required the regeneration of society based on particular legal interpretations of the political violence. As a result, an era of judicial obligations has come to frame how society regenerates, reforms and rehabilitates. Therefore the paper discusses the consequences of wartime victimization in terms of local responses to how ‘the past is processed’ through Transitional Justice institutions like the International Criminal Tribunal of Yugoslavia (ICTY), and associated ad-hoc mechanisms, like outreach programs. The establishment of such judicial processes have set off particular questions like can society be seen as victim? How is society victim? Using a socio-political approach, such questions are problematised through a political defeat paradigm to reveal a particular political anxiety that underwrites the new societies and their politics. This is where the idea of “state anxiety” and “political defeat” are used to discuss what has locally formed out of such politics of transition.
On the Reform of Judgment Reason
判决理由改革论

TONG Zhao hong,ZHANG Heng zhu,
童兆洪
,章恒筑

浙江大学学报(人文社会科学版) , 2002,
Abstract: The reform of judgment reason is a reform of the judicial system rather than a technical one. Judgment reason has the function of supporting a judicial judgment. Its reform may be effective in restraining judicial corruption, improving personal qualities of the judges and promoting the role of the judicial community.
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