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Resolved: Successor governments ought to pursue transitional justice through truth and reconciliation commissions rather than through criminal prosecution

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 NFL LD Topic
 Date Used  Proposed 2007/8

Overview

One of the important conflicts in this debate will be over conceptions of morality. As the affirmative, it will be beneficial to define morality as being defined by the culture in which the moral laws are entrenched, and the negative will want to argue for universal morality. As the affirmative defends the use of TRCS as opposed to CP, they must argue that inidivudals are not tried for acts committed during a time of lawlessness, and are not accused of breaking laws that were only established by the successor government. Thus, by defining morality as a subjective term, the affirmative can state that laws, not morals, are the basis of prosecution. On the other hand, the negative can maintain that universal morality mandates that an act is inherantly right or wrong and it does not matter when this act is committed.

A more concrete area of conflict will surround the need successor govenrment have to both establish their legitimacy. The topic, unfortunately, does not specify the context in which successor governments come to power and their nature. In some cases, most notably South Africa, a retributive approach to transitional justice would in all likelihood have had dissterous results. All one needs to do is compare South Africa today with Zimbabwe. However, consider the case of the genocide in Rwanda. The legitimacy of the Kagame regime has been rightly criticized for not making any real effort to bring to justice those most responsible for that genocide. It would be an intresting exercise in preparing to debate this topic to compare Gacaca Courts with the International Criminal Tribunal for Rwanda.

Definitions

Successor Governments

A successor government is the new form of government in a country whose old regime has just ended. According to the Wikipedia page for "Successor State," a successor government takes over some or all of the territory, assets, treaty obligations and rights from a previously well-established state (the predecessor state). Often, the successor government is set up by the people who debunked the old government, as seen in the French Revolution when Louis XVI's absolutist monarchy crumbled. A series of successor governments ensued, ending in the final state of the Republic of France. Other examples are Germany's German Empire -> Weimar Republic -> Third Reich -> Republic of Germany and Austro-Hungary's split into Austria and Hungary. In this resolution, the successor government must determine how to deal with citizens in the old regime whose actions are now considered crimes. The concept of ex post facto laws, which state that you cannot be tried for a crime you committed if a law forbidding that crime came into effect after the crime, do not apply here because the most common occurrences when successor governments need to pursue transitional justice are instances such as Germany's Nuremburg Trials, though the justice being sought is not always for crimes of such a heinous level.

Transitional Justice

Transitional justice is the response (or responses) that a society takes as it moves from a period of oppression and anarchy to a more peaceful period governed by law. Both judicial and nonjudicial approaces can be included in this approach to confront and deal with legacies of human rights abuse, including prosecution of human rights abusers, provision of reparations to victims, and promotion of reconciliation efforts. The focus of transitional justice usually lies chiefly on the needs of the victims, and the understanding that universal human rights exist. Important case studies include South Africa (1994), East Timor (2001) and Sierra Leone (1999). There are several potential barriers to the process of transitional justice, including abundance of perpetrators (which may overload the judicial system), abundance of victims (causing similar problems especially when societies try to compensate victims through financial means), and legal impediments to prosecution, such as amnesties (periods during which offenders are exempt from punishment) resulting from negotiation with past offenders who stll retain a great deal of power.

Truth and Reconciliation Commissions

Truth commissions are bodies established by the state to reckon with and invesigate past violations of human rights. They differ from individual court cases or normal human rights watches in that (a) they are grounded in the past and do not focus on ongoing violations, and (b) they investigate the violations as a trend, not as many specific events. Because of this focus on past events, they exist only for a predetermined amount of time, generally spanning from about six monthes to two years. Unlike criminal prosecution, truth and reconciliation commissions focus on facilitating peaceful relationships, and bringing former enemies together, and they normally do not have the power to prosecute. Ultimately, they exist to establish what exactly hapened in the past.

Criminal Prosecution

Princeton Wordnet defines criminal prosecution as "the institution and conduct of legal proceedings against a defendant for criminal behavior." This definition can, but not necessarily, be extended to imply the involvement of the state, which may be the prosecutor, or chief legal representative of the prosecution.

Affirming the Topic

ArgumentsResponses

Argument #1

Yes

When pursuing transitional justice, stability is a primiary goal. The point is to turn to a state of lawfulness, and this naturally can only be achieved when the state is internally stable (imagine enforcing the law in a state of anarchy - this is counterintuitive). Criminal prosecution may be an effective tool ONCE stability has been achieved, but before this goal is reached, it is necessary to promote reonciliation between fighting factions, by bringing together former enemies to encourage peaceful relationships and the reinstitution of some level of stability.

No

Type your responses here.

Argument #2

Yes

Criminal prosecution does not really get to the root of the problem. It may scratch the surface by convicting offendants, but tensions can still remain, since one group or individual is rarely responsible for all the crimes committed. Although in some cases this form of prosecution may be justified, most conflicts are more complex than this, and cannot be broken down into the "good side" and the "bad side." Thus, prosecuting only one faction simply promotes more disagreements and conflict between the different groups (ethnic, social, or otherwise).

No

Argument #3

Yes

No

Argument #4

Yes

No


Negating the Topic

ArgumentsResponses

Argument #1

Yes

Argument.

No

  • Response.

Argument #2

Yes

No

Argument #3

Yes

No


Further Reading

External links

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