innovation, independence and dysfunction: the role of international organizations in holocaust &...
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Innovation, Independence and Dysfunction: The role of international organizations in Holocaust & Transitional Justice
Reparations Efforts
Dr. Kathy L. PowersVisiting FellowUnited States Holocaust Memorial Museum
&University of New Mexico Department of Political Science School of Law Program of Africana [email protected]
South African Apartheid
What can you do if the perpetrators of human rights violations receive amnesty?
Rwandan Genocide
How do you resume living next to your neighbors after your neighbor murdered your family as well as tortured and sexually mutilated you?
Who protects you when your government commits human rights violations toward you (e.g., Holocaust Victims, Asian Comfort Women)?
Bosnian Serb Ethnic Cleansing of Muslims in Srebrenica in 1995
What recourse do you have when you are forced to flee your home because of civil conflict or you are forcibly impregnated as a strategy to eradicate your ethnic group?
Slavery in America Are reparations possible when
so much time has passed?
Contemporary contours e.g. Ferguson
Who protects you?
If your human rights are violated by your government…
Who protects you?
What recourse for justice do you have?
What are your options when your atrocities have been committed against you?
Survive
Simmer
Take up arms
Seek Justice
Key Questions
In the aftermath of mass atrocities, what is justice?
Why are some reparations efforts pursued and awarded while other such efforts are not?
What role do international institutions play in individual reparations efforts?
What is justice?: The Holocaust
Reparations in International Relations
Victor’s Justice Fines exacted among states,
usually for damages incurred during war (Torpey 2006:8)
Victor state forces defeated state to pay reparations as punishment.
Old: World War II Reparations In 1945, West and East Germany
paid $23 billion in war reparations to the Allies.
New: Holocaust Restitution and Reparations 450 million DM to Israel for the
relief, rehabilitation and resettlement of European Jewish refugees.
Reparations for material claims in the from of indemnification and restitution to the Claims Conference (through Israel). Only Western European
victims received reparations.
What is an IO?Organization with bureaucracy
Treaty
Regime
Network of relationships
Treaty Nesting
Legal person with rights and duties under international law
What is treaty nesting?Treaties are connected. together.
Linkage must be considered in order to understand treaty effects.
Multilateral treaties linked to bilateral treatiesCommonwealth of Independent States (CIS) International Criminal Court
Table 1: Treaty Nesting Relationships: Cooperative
Treaty Relationship Description
Amplify To build new understandings in an already existing treaty
Specify More narrowly extends content of an existing treaty
Implement Implement content in an existing treaty
Adjusts To address unintended consequences of an existent treaty
Prepare Preparing member states for entry into another treaty
*Legalize Make norms in one treaty binding in another
Table 2: Treaty Nesting Relationships: Conflictual
Treaty Function Description
Circumvent Circumventing the content in an existent treaty
*Remove/strip Remove or strip content of an existing treaty
*Terminate One treaty terminates another treaty.
What is International Legal Personality?
A State Possesses sovereigntyControls a defined territoryGeneral authority over a populationSimilar to a person in a domestic legal system
Capacity to own propertyCapacity to enter into contractsCapacity to bring a claim or be subject to one in an international
tribunalCapacity to engage in international relations
International Legal PersonalityDo non-state actors have rights and duties separate from
states under international law?
Can an individual bring a claim against a state in an international venue?
Can an international organization sign an international treaty?
International Legal Personality
IGO rights and duties:Reparations Case of 1949
Can an IO bring a claim or be the target of one in certain international venues?
Can bring a claim against a member or a non-member state?
International Legal Personality IGO Treaty-making power:
Usually conferred under constituent treaty“The capacity of an international organization to conclude treaties is
governed by the rules of that organization.” (Art. 6, VCLTSIO)
Some IGOs do not have treaty making powers e.g. Benelux Union
Others do e.g. EU, MERCOSUR SACU
International Legal Personality and IGOs
IGOs with ILP:Have rights and duties separate from member states that create
it
Is a legal person with the ability to contract in its own name
No presumption that the creator is liable (Amerasinghe 1996: 67)
International Legal Personality and IOs
Sources of legal personality:
Constituent treaty Delegation
Case lawImplied or Assumed powers
Types of International Organizations
Intergovernmental Organizations (IGOs)
Non-governmental Organizations (NGOs)
Is there something in between?
Institutional Innovation, Independence and Dysfunction:
The Holocaust Institutional LandscapePre-Nuremberg War Crimes Trial Field Teams
Field trials accompanied Allied liberation.
Nuremberg Charter Treaty used to create international courts that tried individuals for war crimes
under international law.
Allied Military Law Used to create the Jewish Restitution Successor Organization that sought
reparations for individuals.
Reparations Agreement of 1952 Agreement between states for German restitution to Israel Created an NGO that negotiates reparations agreements with states for
individuals.
What is Transitional Justice? Transitional Justice:
Refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses.
Transitional Justice Mechanisms: War Crimes Tribunals
Truth Commissions
Reparations
Lustration
Amnesty
Institutional Reform
Reparations and WarVictim’s Justice
Reparations for mass human rights violations committed (Powers and Proctor 2014). Violation of rights under international law so a right to redress.
“Connote with massacres inflicted on defenseless individuals and place the call for for redress in a lexical field demarcated by trauma, memory, and recognition—in a web that draws on the Holocaust as its foundational event” (Ludi 2012: 1)
Reparations demanded in post-dictatorship and post-conflict societies, but….also… in cases of unresolved historic injustices, in negotiations to settle armed conflicts and in criminal and civil cases involving war crimes and HRVs” (ICTJ 2010).
Institutional Innovation, Independence and Dysfunction:
Transitional Justice Reparations Institutional Landscape
Treaties Peace agreements, trade
agreements
Courts International
ICC Victims Trust Fund Regional
European Court for Human Rights, Inter-American Court for Human Rights
Domestic U.S. Airline Stabilization Act of
2011
IO Resolutions e.g., United Nations Right to
Remedy (2005)
War Crime tribunals ICC Victim’s Trust Fund
Truth Commissions South African Truth and
Reconciliation Commission Argentina’s Truth Commission
Reparations policy programs Governments pass legislation that
creates and funds a reparations program
Holocaust Restitution and Reparations vs. Transitional Justice Reparations
Notion of justice has evolved with the acknowledgement of trauma.
Individuals can pursue reparations claims cases against their own governments in venues above the state.
Reciprocal influence.
International legal personality and treaty linkages are factors that should be considered in explaining reparations pursuits and awards.