Donor‐Driven Justice and its Discontents: The Case of Rwanda

Never before was a process of doing justice driven so strongly from the outside as in post‐genocide Rwanda. Not only did the 1994 genocide lead to the founding of the International Tribunal, but it also induced intensive donor involvement in domestic attempts to ‘break the cycle of hatred’— from the work done by the national courts and the Unity Commission to the gacaca. In this sense, Rwanda became the forerunner of a much wider trend, towards a judicialization of international relations, for instance through an emphasis on international criminal law. However, the past decade of donor involvement in Rwanda in general, and the case of the gacaca in particular, show us how this specific — technocratic, de‐contextualized — emphasis on justice might seem innocuous at first glance, but carries dangers within it, particularly if it takes place in an increasingly autocratic and oppressive political environment like that of contemporary Rwanda.     

The Waitangi tribunal in New Zealand

The Waitangi Tribunal has been initiating major changes in New Zealand in the relationships of Maori and Pakeha. It has helped to revitalise the Treaty of Waitangi to redress Maori grievances over land, fisheries and many other matters. The paper outlines the jurisdiction, composition and procedures of the Tribunal and discusses the Treaty briefly. The Treaty and Maori rights have been given little recognition in legislation until recently and consequently little recognition by the Courts. A major decision of the Appeal Court in 1987 in relation to land held by State‐owned enterprises is discussed, leading to a consideration of the partnership principle fundamental to the Treaty. Because the Tribunal is not exclusively concerned with judicial questions but has a political role as well, its relations with government and administration have to be considered in some detail. Notwithstanding criticism of it and the belief of some that it should have more power, the Tribunal is a major instrument of reform in New Zealand.     

Right-Sizing International Criminal Justice: The Hybrid Experiment at the Special Court for Sierra Leone

In the decade since their establishment, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have made great advancements in the development of international criminal justice. Nonetheless, the ad hoc tribunals have been roundly criticized for their expense, inefficiency and slowness. When the Security Council decided to set up a court for Sierra Leone, it wanted to find a new model. The hybrid Special Court for Sierra Leone (SCSL) is an effort to right-size international criminal justice: it has a pared-down budget, tightly focused mandate, limited time of operation, and a lack of institutional links to the Security Council. The negotiations over these issues led to repeated clashes between the UN Secretary General and the Security Council, with the Security Council consistently favouring a more modestly sized court. The SCSL has much to recommend it but its promise is shadowed by the paltry resources available to it. In its efforts to avoid creating another over-sized tribunal, the Security Council swung too far in the other direction. The lofty goals of ending impunity and providing justice demand more than a court on the cheap.     

Maori Hapu as a Whole Way of Struggle: 1840s–50s Before the Land Wars

Research in Maori land history, burgeoning under the influence of the Waitangi Tribunal since the mid-1980s, promises a better understanding of the history of Maori kinship as well as New Zealand political economy. It has often been merely assumed, for instance, that contemporary hapu are a (or the) traditional form. I argue that Maori kinship and especially hapu or their equivalent need to be better understood in historical perspective. This essay examines some evidence and issues arising from the first few decades of colonisation before the land wars of the 1860s.     

The South China Sea dispute and the Philippines Arbitration Tribunal: China's policy options

The Philippines Arbitration Tribunal separately dealing with the jurisdiction over the South China Sea dispute is the continuance of the set practice by the United Nations Convention on the Law of the Sea's Annex VII arbitral tribunals of bifurcation of proceedings, and was the best option for it to deal with China's objections to its jurisdiction in the circumstance of China's non-acceptance of and non-participation in the arbitral proceedings. Such a measure has potentially important implications for the tribunal itself and for China. The tribunal's decision to have jurisdiction over some parts of the Philippines’ submissions resumed the merits proceedings of the dispute. This development of the proceedings would force China to reconsider its current policy of non-participation. Participation in the subsequent merits proceedings might be the right choice for China.     

On wine,rent and regions: labour market change and housing market processes in non‐metropolitan South Australia

This article reports on research into the relationship between labour market change and the private rental market in non‐metropolitan South Australia for the period 1990–2000. Using Small Area Labour Market data, Census data and records from the Residential Tenancy Tribunal the study investigates the capacity of the private rental market to respond to labour market and population growth. The article finds that there is considerable ‘stickiness’ within the private rental market in regional South Australia and that there has been a limited supply response to changing levels of demand. This has contributed to housing and labour shortages in some regions and over supply in others. Each circumstance has generated considerable dilemmas for public policy. The reasons underlying the imperfect market response are considered and the implications for the future development of the regions are discussed.     

Physical-biological or socio-cultural ‘destruction’ in genocide? Unravelling the legal underpinnings of conflicting interpretations

The recent implementation of the 1948 Genocide Convention has shed light on some of its ambiguities, in particular the meaning of the ‘intent to destroy the group’, the mens rea of genocide, and whether the intended destruction should be understood in physical-biological terms or as an intent to eliminate the group as a social-cultural entity. The debate has been particularly acute within the International Criminal Tribunal for the Former Yugoslavia (ICTY), where the former, narrow understanding has finally prevailed. In contrast, in other jurisdictions, such as the German courts, a clear stance has been taken in favour of a broader socio-cultural understanding. This article integrates the legal constraints of interpretation into the debate on the meaning of group destruction. It focuses on the respective foundations of these conflicting interpretations, especially the reference to ‘cultural genocide’, and addresses the socio-legal underpinnings of both. In particular, it places a special emphasis on the international legal rules of interpretation as set out in the 1969 Vienna Convention on the Law of Treaties and on the principles of international criminal law such as the nullum crimen sine lege principle.     

Reshaping possible futures: Deportation,home and the United Kingdom

In this article I examine how foreign nationals in the United Kingdom (UK) envisage the possibility of a forced return to their countries of origin. Drawing on ethnographic data collected in London among foreign national offenders appealing their deportation at the Immigration Tribunal, I show how preparations for an eventual return were seldom made by those appealing deportation, even if the prospect of their forced removal and its implications for the family left behind was constantly on their minds. Appealing deportation can be a long process; living with the risk of being deported strongly impacts on the plans the migrants had devised and hoped for before deportation intruded into their lives. In this sense, and in the course of the deportation process, migrants have to reshape their sense of possible futures to include family separation and possible departures – deportation being only one of these. Generational differences and sustained transnational connections were influential in the reshaping of these possible futures. The data presented shows how for most research participants deportation means ‘leaving the UK’ and not ‘returning home’.     

ALGONQUIN NOTIONS OF JURISDICTION: INSERTING INDIGENOUS VOICES INTO LEGAL SPACES

ABSTRACT. Aboriginal and non-Aboriginal notions of geography, nature and space sometimes compete, and these differences can create barriers to joint environmental problem-solving. This paper examines the Ardoch Algonquin First Nation and Allies (AAFNA) and the strategies they used in juridical and legislative settings to make their voices heard. In the Tay River Ontario Environmental Review Tribunal (2000–2002), AAFNA attempted to introduced their knowledge of the environmental deterioration which would be caused by a Permit To Take Water issued to a multinational corporation by the Ontario Ministry of Environment. The paper is divided into two parts: first, it describes the concepts of Algonquin knowledge, jurisdiction and responsibility; second, it explores the strategies used to integrate their perspective into legal proceedings constructed by the Canadian government. This case reveals how some Algonquin people conceive of space and responsibility in deeply ecological, rather than narrowly juridical, terms. It establishes that their broad concepts of knowledge, land and jurisdiction are incompatible with existing Euro-Canadian divisions of legal responsibility and ecological knowledge, but at the same time can serve as the means by which they challenge the current structure of Aboriginal and Canadian relations.     

‘The invisible chain’: Jeremy Bentham and neo-liberalism

ABSTRACT

Bentham's thought cannot be reduced to the usual oppositions between ‘natural freedom’ and government interference. For Bentham, freedom in a political society is determined by the existence of a legal system that creates obligations for some people and rights for others. The government's task does not directly consist in respecting a sacred natural right, but aims at producing the ‘arrangements’ that are to direct the interests of the greatest number towards beneficial goals for the community as a whole. The legislator is to know, form and guide the individual interests. For this purpose, he has to summon public opinion in order to control individual action. On this point, we should reiterate, contrary to what Michel Foucault contended, that the main form of power in modern society is not exerted by a central state, but by each individual on others. That is the meaning of a very important idea in Bentham's theory, which appears in his writings on indirect legislation under the metaphor of the ‘invisible chain’. The habit of watching and judging others in the permanent Public Opinion Tribunal is the best way to learn self-discipline. Bentham's ideal is the self-government of individuals by the calculation of pleasures and pains.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

Agricultural Adaptation to Real Regulation on the Urban Fringe: The Chicken Meat Industry's Response to Land‐use Conflict in the Western Port Region of Victoria,Australia

Research theorising the rural‐urban fringe has not focussed in detail on the regulatory system managing land‐use conflict, including disputes arising between agricultural enterprises and residential property owners. To explore local forms of regulation the need to identify relevant actors, their interrelationships and the way that they compete to influence decision‐makers is widely recognised in the literature. Moran et al.'s (1996) conceptualisation of ‘real regulation’, with its emphasis on lobbying by social actors and the (re)formulation of legislation, is identified as a theoretical perspective that can help to explain local forms of regulation. The understanding of patterns of regulation on the urban fringe requires a more detailed conceptualisation of non‐legislative forms of policy, and a greater appreciation of the different strategies adopted by farmers to influence government. This paper investigates how urban fringe agricultural industries have attempted to influence decision‐making within the development approval process. Evidence is presented from the Western Port region in the urban fringe of Melbourne, Victoria, where refusal for the construction of broiler sheds by the Administrative Appeals Tribunal has resulted in the chicken meat industry adopting a more scientific siting strategy. It is concluded that, whilst this provides an example of agricultural adaptation and reinforces the importance of adopting a temporal dimension to investigate the land development process, the possibility that government will assess environmental harm differently in the future leaves urban fringe broiler farming in a precarious position.     

History,Hermeneutics and Fijian Ethnic ‘Paramountcy’

The historical context in which Fiji's Deed of Cession was formulated satisfied the necessary conditions for British annexation and included safeguards for Fijian land rights. Both Fijian and English texts implied that the incoming government would respect Fijian custom. For over 60 years, Fijians benefited from a special administrative status in territorial government, restrictions on land alienation and privileged access to departments of the colonial executive. But Fijian commoners were disadvantaged in education, and resisted payment of head taxes. The tax crisis exposed the inability of chiefs to grapple with reform of local government. Faced with electoral competition in the post-war period, Fijian leadership took refuge in a racial view of political legitimacy, derived from an interpretation of the Deed as a ‘charter’ of Fijian rights.

After independence, Fijian need for reassurances about preferential treatment in a parliamentary democracy was fuelled by commoner dissatisfaction with Alliance administration and by a political party formed by the Council of Chiefs. This faction provided a considered ideology for a racial view of ethnic ‘sovereignty’ in a plural society by ignoring the issue of citizenship and over-emphasising the role of the monarch in the language of the Deed. Other commentaries have also favoured an anachronistic interpretation of the political legacy of the Deed, but none of the post-1987 regimes has adopted its terms in Fijian municipal law. Such a suggestion has been made, however, as a defence of commoner rights against Fijian government agencies on the model of the Waitangi Tribunal.     

Status Rivalry and the Politics of Biculturalism in Contemporary Aotearoa New Zealand

Could it be that despite a huge literature spanning decades from many disciplines, a corpus of writing that examines seemingly every twist and turn of a complex situation, we still are missing something basic and fundamental to a proper understanding of contemporary cultural politics in Aotearoa New Zealand? A thing so obvious and omnipresent, that it was characterized long ago in the anthropological literature as the fundamental dynamic of Polynesian culture, and acknowledged even further back by Maori in their ancestral sayings? He tauranga uta, he toka tu moana (a resting place ashore, a firm rock at sea). ‘This metaphor describes the chief whose influence is unchallenged in his territory which extends from the land to the sea’ (Mead and Grove 2003:125). But surely real chiefs, those solid anchoring points, no longer exist as they did before the coming of the Pakeha. Be that as it may, the elements of social organization and associated cultural values of chiefly status continue to resonate in contemporary society. This paper argues that Goldman's concept of status rivalry is that crucial overlooked aspect of cultural politics necessary to a full understanding of what is happening today in the Waitangi Tribunal, Parliament, and so many other places where biculturalism and multiculturalism are debated and discussed, and that it is an aspect of Polynesian culture that has been part of the interrelationship between the Crown and te tangata whenua (the indigenous people) since their first encounters.     

Sins of memory: reflections on the lack of an Italian Nuremberg and the administration of international justice after 1945

This article reconstructs the history of the major trial that the Allies planned to institute against the entire military command of the Nazi armies operating in Italy from 1943 to 1945. The trial was prepared on the same juridical and technical bases as the Nuremberg Tribunal, but it never took place. The reason was that it would have jeopardized the re-integration of the Federal Republic in the European community, and would also have risked placing the Italian government in the embarrassing position of having the Italian army prosecuted for crimes committed in the countries occupied by the Rome?–?Berlin axis. For those reasons, the trial was abandoned and instead only legal proceedings were taken only for some marginal cases, creating the impression that these were simply isolated cases of individual responsibility. The enigma of this missing trial and an explanation of the limits of international justice can only be understood in terms of the political situation in post-war Europe, the relations between Italy and the Allies and the double game played by the Italian government. These events served, however, to give rise to highly selective memories of totalitarianism and the war.     

Vulnerability to Bushfire Risk at Melbourne's Urban Fringe: The Failure of Regulatory Land Use Planning

The 7 February 2009 bushfires in the peri‐urban region to the north of metropolitan Melbourne heralded what many have called an entirely new epoch in terms of weather‐related disasters in Australia. A total of 173 people and 2000 properties were destroyed and, as with the 1939 fires in Victoria, a Royal Commission was subsequently instituted to inquire into the causes and responses to the fire. The Royal Commission has heard much evidence about alleged failings of fire response, communication and administration. It also considered land use planning issues and the associated regulatory framework. Using the Shire of Murrindindi as a case study, this paper argues that the location of population growth, and associated regulatory failure, are contributory, yet under‐researched, factors associated with life and property losses. The adoption of more robust planning tools which incorporate climate change considerations, we argue, is essential to anticipate and minimise the impacts of disastrous natural events such as bushfires. In the latter part of the paper, attention is drawn to a recent Victorian Civil and Administrative Tribunal decision which is groundbreaking in its use of the precautionary principle to prevent dwelling construction in an ‘inappropriate’ location as well as to some major inconsistencies between planning for flood and bushfire threats.     

Politics by other means? The virtual trials of the Khmer Rouge tribunal

This article argues that more emphasis should be placed on the political aspects of international tribunals, which are often in the business of reshaping politics as well as simply administering justice. By examining the hybrid Extraordinary Chambers in the Courts of Cambodia (ECCC), popularly known as the Khmer Rouge Tribunal, the article develops arguments previously advanced by Victor Peskin in respect of Rwanda and the former Yuogoslavia. Peskin has suggested that courtroom war crimes trials are paralleled by ‘virtual trials’, in which international and domestic political actors struggle for power and control over the form and outcome of proceedings. He terms these virtual trials ‘trials of cooperation’, in which governments of states where war crimes have been committed seek variously to help or hinder legal proceedings to address those crimes. Such virtual trials now loom extremely large in the Cambodian case; the Hun Sen government, while exploiting the ECCC to deflect domestic and international attention from the endemic corruption and growing authoritarianism over which it presides, has sought tightly to limit the Tribunal's room for manoeuvre. One trial has been completed, another is about to start, and the international investigators and prosecutors are planning a couple more—but Prime Minister Hun Sen has personally declared his opposition to any further cases going ahead. If the ECCC succeeds in trying only five defendants from the murderous 1975–79 Khmer Rouge regime, justice will not have been done; and wider questions will emerge about the future viability of hybrid tribunals. The Cambodian case demonstrates that where war crimes tribunals are concerned, backroom ‘virtual trials’ need as much academic, policy and media attention as the actual courtroom trials of key defendants.     

Antipodeans Abroad: Trends and Issues in the Writing of New Zealand Mission History

There has been a paucity of reflective and contextual analysis of New Zealand's historical involvement in the international missionary movement. This article suggests that existing literature falls into four categories: denominational/organizational histories; biographies and personal narratives; unpublished university theses; and a small body of more reflective and contextual works. Historical analysis since 1990 reflects wider historical discourses, rather than being the specific product of mission history. Valuable analysis has focused on women's involvement, culture contact, and the relationship between New Zealand missions, European colonialism and indigenous nationalist movements. Yet the theological nature of missionary involvement has been less extensively understood, obscuring the nuanced nature of things like missionary motivation and the relationship with colonialism. A lacuna still exists with respect to: a comprehensive and comparative analysis of post‐1945 missionary involvement; micro and macro‐historical analysis of missionary support; the gendered nature of missionary support; and the role of children and young people in missionary structures and discourse.     

A case of squamosal craniosynostosis from the 16th century southeastern United States

This paper describes a case of plagiocephaly stemming from a unilateral synostosis of the left squamosal and coronal sutures in a 16^th century calvaria from Georgia. Although cases of squamosal involvement in syndromic, multisuture synostotic cases have been found in the archaeological record, isolated squamosal involvement is quite rare. Our literature review found only 15 such cases reported, and this is the first case to be reported from the southeastern United States. Despite the fact that the bevelled nature of the squamosal suture is unique in the human body and that the cause for squamosal involvement remains unclear, to our knowledge there have been no reviews of the nosology and aetiology of synostosis with particular reference to the squamosal suture in the anthropological or clinical literature. Isolated squamosal craniosynostosis may be frequently unreported in clinical settings, and thus case studies on the condition in archaeological contexts may prove valuable for future attempts to identify the frequency and causes of squamosal involvement. This case study also highlights both the potential and challenges of using rare pathological conditions as a tool for positive identification of human remains in historical forensic cases. Copyright © 2007 John Wiley & Sons, Ltd.