Wednesday, November 28, 2012

Newton: Community Based Accountability in Afghanistan: Recommendations to Balance the Interests of Justice

Michael A. Newton (Vanderbilt Univ. - Law) has posted Community Based Accountability in Afghanistan: Recommendations to Balance the Interests of Justice (in Jus Post Bellum and Transitional Justice, Larry May & Elizabeth Edenberg eds., forthcoming). Here's the abstract:
This chapter examines the advisable scope of ICC authority in contrast to the traditional dispute mechanisms encountered in Afghanistan [in the context of a weak central authority facing resurgent Taliban influences]. Theoretical constructs of jus post bellum are most challenged by the realities of a complex choreography of authoritative local actors capable of administering justice/reconciliation grounded in sociological legitimacy, national officials, and the supranational jurisdiction of the ICC. From the perspective of victims and community leaders, the external interference of the ICC is in itself a controversial and complex aspect of “justice.” The balance between prosecutions, reintegration of particular perpetrators, forgiveness, reparations, truth-telling, and apology is a delicate process because the fundamental nature of the social contract between the individual and the state is in flux, just as the nature of the relationship between the state and the supranational Court is evolving. To ameliorate what will be a recurring problem as it begins its second decade of operation, the ICC needs to develop a consistent and analytically defensible framework for understanding community based processes in light of the “interests of justice” analysis permitted by the Rome Statute. Conversely, Afghanistan needs to implement a statutory scheme that streamlines the manner in which disputes are brought into the formalized justice system or addressed in informal community based mechanisms. This chapter closes with a recommended statutory scheme that would preserve the legitimacy and availability of community based mechanisms while preserving the ability of formalized domestic or international prosecutions when localized settlements would undermine domestic statutes, human rights norms, or offend the interests of justice.