States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. This volume examines in detail attempts that were made in certain significant post-conflict or post-authoritarian situations to strengthen the domestic rule of law with the aid of international law. Attention is paid in particular to the empowerment of domestic courts in such situations. International law may serve these courts as a tool for reconciling the demands for new rights and responsibilities with due process and other rule of law requirements.
The volume contains case studies of the role of domestic courts in various post-conflict and transitional situations (Balkans, Iraq, Afghanistan, Nepal, East Timor, Russia, South Africa, and Rwanda). Each of these case studies seeks to answer questions relating to the exact constitutional moment empowering domestic courts to apply international law, the range of international legal norms that are applied, the involvement of international actors in bringing about change, the contextualization of international legal norms in states in transition, tension within such states as a result of the application of international law, and the legacy of domestic courts’ empowerment in terms of durable rule of law entrenchment.
About the editors
Edda Kristjansdottir, member of the Faculty of Public International Law, Amsterdam Center for International Law, University of Amsterdam.
André Nollkaemper, Professor of Public International Law, Amsterdam Center for International Law, University of Amsterdam.
Cedric Ryngaert, Assistant Professor of International Law, Leuven University; Associate Professor of International Law, Utrecht University.
Introduction (p. 1)
Lost in Transition? Domestic Courts, International Law and Rule of Law ‘À la Carte’ (p. 17)
International Law in the Russian Courts in Transitional Situations (p. 35)
Thickening the Rule of Law in Transition: The Constitutional Entrenchment of Economic and Social Rights in South Africa (p. 59)
Judicial Activism and the Use of International Law as Gap-Filler in Domestic Law: The Case of Forced Disappearances Committed During the Armed Conflict in Nepal (p. 83)
International Law and Iraqi Courts (p. 107)
Constitutionalism without Governance: International Standards in the Afghan Legal System (p. 125)
Understandings of International Law in Rwanda: A Contextual Approach (p. 153)
Virtuous Flexibility. The Application of International Human Rights Norms by the Bosnian Human Rights Chamber (p. 175)
War Crimes Chamber of the Court of Bosnia and Herzegovina: Seeding “International Standards of Justice”? (p. 195)
Prosecution of War Crimes in Bosnian Cantonal and District Courts: the Role of the Rule of Law (p. 221)
War Crimes Prosecution in a Post-Conflict Era and a Pluralism of Jurisdictions: the Experience of the Belgrade War Crimes Chamber (p. 241)
The Treatment of Occupation Legislation by Courts in Liberated Territories (p. 269)
The Use and Abuse of International Law: Choice of Applicable Criminal Law in Post-Conflict East Timor (p. 291)
Concluding Observations (p. 311)
Countries emerging from long periods of authoritarian rule must often confront a legacy of gross human rights abuses perpetrated over many years. During the past two decades, these age-old issues have been termed “problems of transitional justice”, both by academics and policy makers around the world. Given the frequency with which these problems arise, as well as the complexity of the issues involved, it is striking that no book series has taken the issue of transitional justice as its point of focus.
The Series on Transitional Justice offers a platform for high-quality research within the rapidly growing field of transitional justice. This research is, of necessity, inter-disciplinary in nature, drawing from disciplines such as law, political science, history, sociology, criminology, anthropology and psychology, as well as from various specialised fields of study such as human rights, victimology and peace studies. It is furthermore international in outlook, drawing on the knowledge and experience of academics and other specialists in many different regions of the world.
The series is aimed at a variety of audiences who are either working or interested in fields such as crime and justice; human rights; humanitarian law and human security; conflict resolution and peace building. These audiences may include academics, researchers, students, policy makers, practitioners, non-governmental organisations and the media.
- Prof. S. Parmentier (University of Leuven, Belgium)
- Prof. Elmar Weitekamp (University of Tübingen, Germany)
- Prof. Jeremy Sarkin (University of South Africa) and
- Mina Rauschenbach (Université de Lausanne and University of Leuven) (Assistant editor)
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