Reckoning With the Past, Healing the Present, and Shaping the Future
Reference List -----------------------------------------------
1- The broad literature and scholarly work on transitional justice qualifies approaches, solutions, and agenda-formation in the development of a transitional justice program contingent on a very important factor: whether the country seeking to implement transitional justice is a stable or a transitional democracy. The reason for this categorization relates to the characteristics of paradigm transitional societies. If societies are transitional democracies, their characteristics are defined as followed: extensive structural inequality, systematized political injustice, grave existential uncertainty, and robust uncertainty concerning authority. If societies are stable democracies, the circumstances and characteristics are as followed: limited structural inequality, individual or personal injustice, limited existential uncertainty, and minor uncertainty about authority. The contextual issue at hand is that formulating a transitional justice agenda for a transitional society, because of its characteristics, are quite different than formulating a transitional justice agenda for a stable democracy. Considering that Armenia’s characteristics are more aligned with a transitional society, the transitional justice agenda formulated by this policy paper will reflect as such. For a further discussion on the characteristics of transitional societies versus stable democracies, see Colleen Murphy. 2017. The Conceptual Foundations of Transitional Justice. Cambridge University Press.
2- Priscilla B. Hayner. 2002. Unspeakable Truths: Facing the Challenge of Truth Commissions. Routledge. See also Ruti G. Teitel. 2008. “Transitional Justice Globalised.” International Journal of Transitional Justice (2) 1.
3- Murphy. 2017. The Conceptual Foundations of Transitional Justice. Pg. 1
4- UN Secretary General’s Report. 2004. “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.”
5- David Gray. 2010. “Extraordinary Justice.” Alabama Law Review, 62. Pp. 55-109.
6- Jean Hampton. 1992. “Correcting Harms versus Righting Wrongs: The Goal of Retribution.” UCLA Law Review 39; pp. 1659-1702.
7- Ernest Weinrib. 2012. Corrective Justice. Oxford: Oxford University Press. For the various forms of corrective justice, see Haig Khatchadourian. 2006. “Compensation and Reparation as Forms of Compensatory Justice.” Metaphilosophy 37 (3-4): pp. 429-448.
8- John Rawls. 1999. A Theory of Justice. Cambridge, Mass: Harvard University Press.
9- Herbert Morris. 1971. “Guilt and Suffering.” Philosophy East and West 21 (4): pp. 419-434.
10- See Erin Daly. 2002. “Transformative Justice: Charting a Path to Reconciliation.” International Legal Perspective 12 (1-2): pp. 74-183; also see Roger Duthi. 2008. “Toward a Development-Sensitive Approach to Transitional. Justice.” International Journal of Transitional Justice 2 (3): pp. 292-309. For specific discussion on emerging democracies, see “Neil Kritz 2004. Transitional Justice: How Emerging Democracies Rechon with Former Regimes. U.S. Institute for Peace. (ed) Vol. 1. For a discussion on societal transformation and the role of non-elite actors, see Lorna McGregor and Kieran McEvoy. 2008. Transitional Justice from Below, Grassroots Activism and the Struggle for Change. Hart Publishing.
11- Murphy, The Conceptual Foundations of Justice, p9. 180-183.
12- Kirsten Ainley. 2017. “Evaluating the Evaluators: Transitional Justice and the Contest of Values.” International Journal of Transitional Justice (11). Pp. 421-442.
13- Hugo van der Merwe and M. Brinton Lykes. 2016. “Transitional Justice Processes as Teachable Moments.” International Journal of Transitional Justice (10). Pp. 361-365.
14- Ruit Teitel. 1997. “Transitional Jurisprudence: The Role of Law in Political Transformation.” Yale Law Journal, 106: pp. 2009-2080.
15- Namely, reforms that were implemented earlier had 5-9% higher public trust than reforms that were implemented much later; this differentiation, however, is statistically minimal when observing the magnitude of effect. Further, the model’s trajectory offers a 35 year observation; decline in efficaciousness becomes observable approximately 16 years after transition. Thus, in case of Armenia, unless Armenia’s government is going to wait some 16 years to implement a TJA, the discussion on timing has no substantive or empirical relevance.
16- Cynthia M. Horne. 2015. “The Timing of Transitional Justice Measures.” In (ed) Lavinia Stan and Nadya Nedelsky. Post-Communist Transitional Justice: Lessons from Twenty-Five Years of Experience. Cambridge University Press. Pp. 123-147.
17- Pablo de Greiff. 2012. “Theorizing Transitional Justice.” NOMOS LI: Transitional Justice. (ed) Melissa Williams, Rosemary Nagy, and Jon Elster. New York: New York University Press. Pp. 31-38.
18- Geoff Dancy. 2010. “Impact Assessment, not Evaluating: Defining a Limited Role for Positivism in the Study of Transitional Justice.” International Journal of Transitional Justice 3 (4). Pp. 355-376. See also Thorsten Bonacker and Susanne Buckley-Zistel. 2013. “Introduction: Transitions from Violence – Analyzing the Effects of Transitional Justice.” International Journal of Conflict and Violence Vol. 7 (1). Pp. 4-9.
19- Barbara Oomen. 2011. “Donor-Driven Justice and Its Discontents.” International Journal of Transitional Justice 5. Pp. 390-411.
20- Paige Arthur and Christalla Yaninthou. 2018. “Changing Contexts of International Assistance to Transitional Justice.” In Transitional Justice, International Assistance, and Civic Society: Missed Connections. Cambridge University Press. Pp. 1-24.
21- Laurel Fletcher, Harvey M. Weinstein, and Jamie Rowen. 2009. “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective.” Human Rights Quarterly 31. Pp. 163-220.
22- UN Special Rapporteur. 2016. “Report to the General Assembly on National Consultation Concerning the Design and Implementation of Transitional Justice Measures.” For further discussion, see David Crocker. 1999. “Civil Society and Transitional Justice.” In Civil Society, Democracy, and Civic Renewal. (ed) Robert Fullinwider. Rowman and Littlefield. Pp. 375-401; also see, 1998. “Civil Society and Transitional Justice and International Civil Society: Toward a Normative Framework.” Constellation 5 (no. 4). Pp. 492-517. Just as important is David Backer. 2003. “Civil Society and Transitional Justice: Possibilities, Patterns and Prospects.” Journal of Human Rights 2 (no. 3). Pp. 297-313.
23- Christalla Yakinthou 2018. “Reframing Friction: A Four-Lens Framework for Explaining Shifts, Fractures, and Gaps in Transitional Justice.” In Transitional Justice, International Assistance, and Civic Society: Missed Connections. Cambridge University Press. Pg. 197.
24- Council of the European Union. 2015. “The EU’s Policy Framework on Transitional Justice.”
25- Annie R. Bird. 2015. US Foreign Policy on Transitional Justice. Oxford University Press.
26- International Court of Transitional Justice. “Prosecutions.” www. ictj.org.
27- Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter. 2010. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. United States Institute of Peace Press. Pp. 87-95.
28- Murphy, The Conceptual Foundations of Transitional Justice. Pg. 36
30- Truth Commissions were successfully used in Sierra Leone, Argentina, South Africa, Chile, Peru, Ghana, Morocco, El Salvador, Guatemala, Liberia, and Democratic Republic of Congo.
31- See Hayner. Unspeakable Truths: Facing the Challenge of Truth Commissions. See also James L. Gibson. 2004. Overcoming Apartheid: Can Truth Reconcile a Divided Nation? (HSPC Press); and 2006, “The Contribution of Truth to Reconciliation, Lessons from South Africa.” Journal of Conflict Resolution (50).
32- S.Y.P. Choi and R. David. 2012. “Lustration Systems and Trust: Evidence from Survey Experiments in the Czech Republic, Hungary, and Poland.” American Journal of Sociology 117 (4). Pp. 1172-1201.
33- For further discussion on lustration, see Lavinia Stan. 2009. Transitional Justice in Eastern Europe and the Former Soviet Union. Routledge.
34- Colleen Murphy. 2010. A Moral Theory of Political Reconciliation. New York: Cambridge University Press.
35- See Tricia Olsen, Leigh Payne, and Andrew Reiter. 2010. “Transitional Justice in Balance: Comparing Processes, Weighing Efficacy.” United States Institute of Peace Press. Pp. 140-146.
36- Andrew G. Reiter. 2016. “Measuring the success (or failure) of transitional justice.” In (ed) Olivera Simic. An Introduction to Transitional Justice. Routledge. Pg. 276.
37- Jeremy Sarking. 2004. Carrots and Sticks: The TRC and the South African Amnesty Process. Antwerp: Intersentia.
38- Priscilla Hayner. Unspeakable Truths. Pg. 29
39- Ibid. Pp. 35-37.
40- Veerle Opgenhaffen and Mark Freeman. 2005. “Transitional Justice in Morocco: A Progress Report.” International Center for Transitional Justice.
41- Hayner. Unspeakable Truths: Facing the Challenge of Truth Commissions. Pp. 11-47.
42- Ibid. pp. 51-54.
43- Moira Lynch and Bridget Marchesi. 2015. “The Adoption and Impact of Transitional Justice.” In (ed) Lavinia Stan and Nadya Nedelsky. Post-Communist Transitional Justice: Lessons from Twenty-Five Years of Experience. Cambridge University Press. Pp. 73-120. See also Roman David. 2011. Lustration and Transitional Justice: Personnel Systems in the Czech Republic, Hungary, and Poland. University of Pennsylvania Press.
44- Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter. 2010. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. United States Institute of Peace Press.
45- Roman David. 2015. “Transitional Justice Effects in the Czech Republic.” In (ed) Lavinia Stan and Nadya Nedelsky. Post-Communist Transitional Justice: Lessons from Twenty-Five Years of Experience. Cambridge University Press. Pp. 97-120.
46- For a discussion of robust versus weak truth commissions, and the recommendation of having robust domestic/“localized” truth commission over international-reliant truth commissions, see Duncan McCargo. 2015. “Transitional Justice and Its Discontents.” Journal of Democracy Vol. 26 (2). Pp. 5-20.
47- Institutions that reinforce the rule of law also contribute to the implementation of universal standards of justice, human rights, and democratic norms. For a specific discussion on the institutionalization of the rule of law as a necessary precondition, see Michael Ignatieff. 2001. Human Rights as Politics and Idolatry. (ed.) Amy Gutmann. Princeton University Press. See also Tonya Putnam. 2002. “Human Rights and Sustainable Peace.” In (ed.) Stephen John Stedman et al. Ending Civil Wars: The Implementation of Peace Agreements. Lynne Rienner.
48- Jack Snyder and Leslie Vinjamuri. 2004. “Trials and Errors: Principle and Pragmatism in Strategies of International Justice.” International Security No. 3 (Winter). Pg. 31
49- Guillermo Trejo, Juan Albarracin, and Lucia TIscornia. 2018. “Breaking State Impunity in Post-Authoritarian Regimes: Why Transitional Justice Processes Deter Criminal Violence in New Democracies.” Journal of Peace Research Vol. 55 (6). Pp. 787-809.
50- Both substantively and contextually, hybrid commissions/tribunals are not applicable to Armenia. Hybrid commissions are primarily utilized for instances of crimes against humanity (war crimes, genocide, ethnic cleansing, etc.). Further, hybrid commissions are formed of domestic and international components. Considering the absence of war crimes from Armenia’s TJA, and also noting the scholarly literature that recommends against internationalizing/globalizing a nation’s TJA, the formation of hybrid commissions are disqualified from this policy paper. For further analysis on hybrid commissions, see Elena Naughton. 2018. “Committing to Justice for Serious Human Rights Violations: Lessons from Hybrid Tribunals.” International Court of Transitional Justice.
51- In general terms, there is no scholarly consensus on determining qualifications for amnesty, and as such, different mandates determine different guidelines on individualized amnesty. For a comprehensive assessment on this topic, see Belfast Guidelines on Amnesty and Accountability. 2013. University of Ulster Transitional Justice Institute. See also Jeffrey R. Seul. 2019. “In Practice: Coordinating Transitional Justice.” Negotiation Journal. Pp 9-30.
52- For a discussion on the necessity of including inquiries into the judiciary within a TJA, with a specific case study of South Africa TRC, see Alex Boraine. 2000. A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission. Oxford University Press.
53- The body of statistical and econometric projections applied on this topic was produced in 2010. To allow for some comparative consistency, approximations and ranges are utilized to account for inflation. See Tricia Olsen, Leigh Payne, and Andrew Reiter. 2010. “Transitional Justice in Balance: Comparing Processes, Weighing Efficacy.” United States Institute of Peace Press. Pp. 71-77. The findings further indicate that as a country becomes wealthier, it opts less for amnesty; and as it becomes more developed, it also opts less for truth commission. The data indicates a progressive structure: wealthiest countries utilize trials; poor countries rely on amnesty; while mid-tier countries prefer truth commissions.
54- Louise Mallinder .2008. Amnesty, Human Rights and Political Transitions. Hart Publishing. See also, Kieran McEvoy and Louise Mallinder. 2012. “Amnesties, Punishment and the Calibration of Mercy in Transition.” Journal of Law and Society (39).
55- Important cases of amnesty laws, which had both mistakes as well as success, can be learned from the cases of Argentina and South Africa. See Kathryn Sikkink. 2011. Justice Cascade: How Human Rights Prosecutions are Changing World Politics. Norton.; see also John Dugard. 1997. “Retrospective Justice: International Law and the South African Model.” (ed) James Adams. Transitional Justice and the Rule of Law in New Democracies. University of Notre Dame Press.
56- For further guidance on amnesty and impunity, see Office of the United Nations High Commissioner for Human Rights. 2009. Rule-of-Law Tools for Post-Conflict States: Amnesties.
57- See Margaret Walker. 2006. “Restorative Justice and Reparations.” Journal of Social Philosophy 37 (3); pp. 377-395; and Margaret Walker. 2010. “Truth Telling as Reparations.” Metaphilosophy 41, (4): pp. 525-545.
58- Laurel Fletcher and Harvey M. Weinstein. 2002. “Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation.” Human Rights Quarterly 24. Pp. 573-639.
59- For a discussion of public perception on lustration, especially in its applicability to former political parties that were in power, see Monika Nalepa. 2012. “Tolerating Mistakes: How Do Popular Perceptions of Procedural Fairness Affect Demand for Transitional Justice?” The Journal of Conflict Resolution Vol. 56 93). Pp. 490-515.
60- For a discussion on the forms of suffering that constitute victimhood, and a nuanced differentiation between different types of suffering, see Jon Elster. 2004. Closing the Books: Transitional Justice in Historical Perspective. Cambridge University Press.
61- For further discussion of symbolic reparations, see Peter Rush and Olivera Simic (eds). 2014. The Arts of Transitional Justice: Culture, Activism, and Memory after Atrocity. Springer-Verlag.
62- Roman David. 2017. “What We Know About Transitional Justice: Survey and Experimental Evidence.” Advances in Political Psychology Vol 38 (1). Pp. 151-177.