Latin & South America

[Ruti G. Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School.] I am happy to join the conversation on Shana Tabak’s "False dichotomies of Transitional Justice Gender, Conflict and Combatants in Colombia," forthcoming in the next issue of the NYU Journal of International Law & Politics. Tabak’s article is a thoughtful meditation on the...

[Vasuki Nesiah is an Associate Professor of Practice at NYU's Gallatin School of Individualized Study.] From manufacturing petrol bombs in their homes in Northern Ireland to planning assassinations in Colombia, female combatants confound received scripts of gender and war. Shana Tabak’s article challenges the analytical frameworks deployed by orthodox approaches to transitional justice, lays out an alternative framework that she...

[Shana Tabak is a Visiting Associate Professor of Clinical Law at The George Washington University Law School, where she is also a Friedman Fellow with the International Human Rights Clinic.] Although the field of transitional justice has made great strides in addressing harms perpetrated against women in the aftermath of conflict, this paper argues that transitional justice mechanisms mistakenly rely on...

This is the first project in a new partnership between the NYU Journal of International Law & Politics and Opinio Juris. This series of postings will feature reactions from leading scholars to our three forthcoming articles to be published in 44:1. The editorial board of the Journal would like to thank Opinio Juris and Professor Peggy McGuinness, as...

A few weeks ago I spoke with a senior transitional justice researcher and aspiring politician from northern Uganda about the trials (if you excuse the pun) and tribulations of achieving peace and justice in the region. He described sentiments familiar to those who have engaged in the “peace versus justice” debate:
“I don't see it as a debate. It is common sense that in situations of what we have been experiencing, strategically we should be sequencing these issues, prioritizing and looking at what is best in the short-term and what is best in the long-term. It is very legitimate in any process that we must create an enabling environment that can guarantee justice can be done...If you start asking for justice even before you create that enabling environment, it is not even a debate, it is foolery...We must sequence them.”
I subsequently challenged him on the effectiveness of his argument to which he responded that Argentina was the ideal example of a state which had successfully sequenced peace and justice. The “sequencing argument” has become a popular feature in the rigid and harshly dichotomous “peace versus justice” debate. The argument is attractive because it represents an attempt to find ground between the polarizing views that there is “no peace without justice” and “there is no justice without peace.” While the sequencing argument is closer to the latter in suggesting that justice may have to follow peace it largely acknowledges that justice is necessary in the long term. Unlike scholars of a realist bent who are sceptical of any attempt to achieve justice in conflict and post-conflict contexts, the point is not to reject accountability and reconciliation but to create an environment in which pursuing justice enforces rather than destabilizes peace. The sequencing argument is rather nuanced and intuitive. It weaves together the two major strands of thinking on peace: positive peace and negative peace. Negative peace, the cessation of large-scale, direct violence, is required before justice can be pursued. If justice is sought prior to the “silencing of the guns”, then it risks prolonging the conflict. However, once a negative peace is secured, justice should be pursued. Only by identifying and rectifying past wrongs – including human rights abuses – can a more encompassing, positive peace be achieved. In short, the sequencing argument suggests a trajectory of:
violent conflict –> negative peace –> justice and accountability –> positive peace
Proponents of the sequencing argument have, however, not thoroughly scrutinized how their theory translates into practice. On the ground, the sequencing argument presumably looks a little like this: in order to achieve a cessation of violence, parties enter inclusive peace negotiations to achieve a power-sharing agreement and peaceful transition. The parties discontinue active conflict while even the most brutal and unsavoury of leaders are guaranteed amnesties as an incentive to cease violent activity. Once stability is assured and the time for accountability is ripe, those amnesties are revoked and the leaders of the conflict are brought to account, ushering in positive peace and justice.

Kate Sheppard has an interesting post at Mother Jones today discussing a series of WikiLeaks cables that detail Chevron's attempts to convince the Ecuadorian government to end the lawsuit against it.  Here are the two key cables she discusses: This from a March 2006 cable written by US officials in Quito: "In previous meetings, Chevron reps have suggested that the ...

Fantastic news: New York – A federal appeals court vacated an order Monday by a New York judge that barred an $18 billion judgment in Ecuador against Chevron Inc. for contaminating the Amazon. The three-judge panel of the 2nd U.S. Circuit Court of Appeals had previously expressed skepticism that a New York judge could wield jurisdiction outside...

Last week Julian Ku and I had the pleasure of working with Business Roundtable and a wonderful group of international law scholars--Rudolf Dolzer, Burkhard Hess, Herbert Kronke, Davis Robinson, Christoph Schreuer, and Janet Walker--on a Second Circuit amicus brief addressing the propriety of antisuit injunctions under international law. The amicus brief addresses an appeal of Judge Kaplan of the...

The D.C. Circuit held this week that torture by non-state actors was not actionable under the Alien Tort Statute. The case, Ali Shafi v. Palestinian Authority, arose from the alleged torture in the West Bank by the Palestinian Authority and the PLO of a Palestinian national who was an Israeli spy. The Shafis argue that “the [Palestinian Authority's] conduct...

On March 7, a federal court in New York issued an anti-suit injunction order enjoining Ecuador plaintiffs from enforcing the $9 billion Ecuador judgment against Chevron. The injunction applies to all Ecuador plaintiffs and their counsel, including "directly or indirectly funding, commencing, prosecuting, advancing in any way, or receiving benefit from any action or proceeding, outside the Republic of...