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1891. Temporary Courts, Permanent Records

Author:
Trudy Huskamp Peterson
Publication Date:
08-2006
Content Type:
Working Paper
Institution:
United States Institute of Peace
Abstract:
Temporary international criminal courts create voluminous records of tremendous and lasting significance to victims, scholars, and legal practitioners, and arrangements must be made for their permanent protection, storage, and use. A conceptual framework is offered for creating a central international judicial archives under UN auspices and for standards to select, preserve, and manage the records of temporary international criminal courts. The closure of these courts makes a decision on the disposition of their records urgent: the Timor Leste Special Panels and Serious Crimes Unit closed in May 2005; the status talks on Kosovo are currently under way; the Sierra Leone court is to close in mid-2007; and the ICTY and ICTR are to complete all proceedings by 2010. A survey of the five courts reveals substantial differences among them because of the varied roles played by the United Nations in their establishment and operations. These differences in turn lead to differences in the potential disposition of the records. When the ICTY and ICTR close, their records will become the responsibility of the United Nations Archives and Records Management Section. The legal responsibility for the Sierra Leone court records is to be negotiated between the United Nations and the government of Sierra Leone. The management of the copies of the East Timor records held by the United Nations is controlled by an agreement between that government and the United Nations. The records of the UN mission in Kosovo relating to the Kosovo internationalized courts will be divided among the government and the three organizations currently comprising the UN mission. Records of the tribunals are key research resources for victims, civic activists, academics, journalists, educators, and successors to current court officials. Potential users of the tribunal records urge officials to place the records where research will be fostered. Preservation requires active intervention to ensure that records can be used; if records are simply stored they will deteriorate, and electronic and audiovisual records will deteriorate irretrievably The ICTY, ICTR, and the Special Court for Sierra Leone must establish basic access rules for their records before closing; they should make every attempt to harmonize their access provisions. The United Nations should explore constructing and staffing an international judicial archives in The Hague and should begin providing copies of publicly available court records to institutions in the countries affected by the court proceedings. Governments and donors should actively encourage and support the United Nations in these efforts.
Topic:
Crime, Government, International Law, and United Nations
Political Geography:
Kosovo and Sierra Leone

1892. Georgia's Rose Revolution: A Participant's Perspective

Author:
Giorgi Kandelaki
Publication Date:
07-2006
Content Type:
Working Paper
Institution:
United States Institute of Peace
Abstract:
Efforts to resist calling the 2003 events in Georgia a “revolution” were misplaced. Although the turmoil was marked by a lack of violence, a critical mass of people did come out to move the country away from the rampant corruption of the Shevardnadze regimes of 1972 to 1985 (when he was Communist Party first secretary) and 1992 to 2003 (when he was president). As president, Shevardnadze supported independent civil society groups and media outlets such as the television station Rustavi-2. His support of these groups ended in 2001, when he tried to shut down Rustavi-2. This action prompted reform-minded members of his government to form opposition parties. Before the 2003 parliamentary elections, opposition groups hoped only to gain momentum for the 2005 presidential elections. However, blatant electoral fraud, Shevardnadze's refusal to compromise, and the discipline of nonviolent opposition groups precipitated his exit. The youth group Kmara (Enough) played an important role in combating widespread political apathy among the Georgian public and youth in particular. The successful mobilization of so many young people continues to reverberate as former Kmara members maintain their interest in politics. Saakashvili's National Movement party believed that its success depended on radicalizing the political sphere and thereby broadening political participation. It was particularly effective at increasing political participation among provincial populations. Georgia's independent media, particularly Rustavi-2, supported the Rose Revolution by providing a forum for opposition parties and nongovernmental organizations (NGOs) critical of the government. The channel also co-funded and broadcast exit polls that contradicted the official election results. Although a few civil society organizations did play significant roles in the revolution, most were constrained by foreign funding priorities and their own elitism. Similarly, foreign actors played a limited role because they lacked information or were overly cautious about fostering significant political change. There was no violence because the various security forces chose not to respond to public demonstrations with force. Three main factors drove their decision: 1) The security forces were accustomed to responding to democratic pressures and not defending autocratic rule; 2) a divided ruling party could not speak with one voice; 3) opposition groups, including Kmara, made strong efforts to build sympathy for their cause while downplaying the threat posed by political change. International actors can best support democratic transitions by targeting assistance to nationwide election watchdogs, such as the International Society for Fair Elections and Democracy (ISFED), that can carry out parallel vote tabulations (PVT). Ideally, large numbers of observers from similar organizations outside Georgia should be deployed, since they can be more outspoken about electoral fraud.
Topic:
Civil Society, Democratization, and Government
Political Geography:
Eastern Europe and Georgia

1893. Weak Viability: The Iraqi Federal State and the Constitutional Amendment Process

Author:
Jonathan Morrow
Publication Date:
07-2006
Content Type:
Working Paper
Institution:
United States Institute of Peace
Abstract:
The cycle of violence in Iraq is, in part, constitutional: it derives from competing visions of the Iraqi state that have not been reconciled. An amendment to Iraq's constitution to delay the creation of new federal regions, together with a package of legislation and intergovernmental agreements on oil, division of governmental power between Baghdad and the regions, and the judiciary, may be enough to slow or even arrest this decline in the security situation, and may be achievable. A “government of national unity,” though desirable, will not by itself be able to generate the necessary constitutional consensus. Iraq's new legislature, the Council of Representatives, is now considering the process of constitutional amendment described in Article 142 of the constitution. Prime Minister Nouri al-Maliki has announced the constitutional review as part of his government's platform. This amendment process, assuming it proceeds, will come in the wake of widespread opposition to the constitution from Sunni Arab Iraqis in the October 2005 referendum. It is expected that a Constitution Review Committee (CRC) will soon be appointed, in line with Article 142. To the extent that it was opposed by Sunni Arabs, the constitution lacks the essential criterion of any constitution: the consent of all major national communities. The 2005 Iraqi constitution may nonetheless, as a legal text, be a sufficient and necessary framework for the radically regionalized Iraqi polity which the constitution drafters envisaged. The constitutional challenge in Iraq is first about peacemaking, not state building. As the Iraqi parliament faces the challenge of appointing, mandating and staffing a CRC, the first, and essential, set of questions is therefore political: How can the amendment process be used as a vehicle to remedy the political failure of last year's constitution drafting process? How can consensus be built, and in particular how can Iraq's Sunni Arabs be encouraged to give their assent to the new federal Iraq? How can Iraq's Kurdish and Shia leaders be encouraged to make worthwhile constitutional concessions to Sunni Arab positions so as to elicit that consent? The second set of questions is legal: What are the minimum constitutional amendments needed, if any, to ensure that Iraq is a viable, if not a strong, state? To the extent that the Sunni Arab position has been one that purports to defend the Iraqi state, legal or technical improvements to the text that support Baghdad's ability to govern may draw support from Sunni Arabs, thereby generating clear political benefits. There are additional legal questions that, though not strictly related to the Sunni Arab problem, are pressing: in particular, What are the minimum constitutional amendments needed, if any, to ensure that the human rights of all Iraqis receive adequate protection? It is not only the Sunni Arabs who feel disenfranchised by the constitution; nationalists, some women's groups, and groups representing Iraq's minorities express similar views. It will be very difficult to pass constitutional amendments of any sort, especially those that seek to shift power from Iraq's regions to the central government. Regional interests have the upper hand, constitutionally and politically. There is no reason to expect that the constitution's Kurdish and Shia authors will see the need for constitutional amendments to the text that they themselves deliberately, if hastily, constructed. The referendum procedure for amendment is onerous, with a three-governorate veto power. High expectations of the amendment procedure will lead to disappointment and may amplify, rather than reduce, violence. For this reason, legal instruments other than constitutional amendments must be considered as ways to remedy the political and legal deficiencies of the constitution. A CRC should be established, with strong Sunni Arab membership. Given the pressing and complex nature of the necessary constitutional deal, the CRC should be mandated to make recommendations, where appropriate, not only for constitutional amendments, but also for (1) legislation, (2) intergovernmental agreements and, where appropriate (3) interparty agreements and (4) international agreements, all of which might encourage Sunni Arab political commitment to the Iraqi constitution and ensure viability for the Iraqi state. A three-part formula, concerning the creation of new regions, oil, and the delineation of powers between the central government and the regions, offers a way forward for the CRC to heal the wounds caused by the deficiencies in the 2005 drafting process. That formula would not require the Kurdistan party or the hitherto most influential Shia party, the Supreme Council for the Islamic Revolution in Iraq (SCIRI), to make major modifications to their constitutional positions.
Topic:
International Relations, Development, and Government
Political Geography:
Iraq, Middle East, Arabia, and Kurdistan

1894. Integration Reloaded: Streamlining Moldova's European Course

Author:
Stanislav Secrieru
Publication Date:
03-2006
Content Type:
Policy Brief
Institution:
Finnish Institute of International Affairs
Abstract:
In 2009, against all expectations, Moldova managed to shake off its inertia in an effort to leave behind zigzagging reforms and set itself on course for European integration. Although the European option enjoys overwhelming support in Moldova, the experiences of the eu's latest newcomers have shown that aspirations only materialize if you are prepared to do the necessary homework. Is there enough political will and ability to implement reforms in Moldova? What has the new government done so far, domestically and externally, to bring Moldova closer to the eu? What are the obstacles that could hinder reforms in Moldova? How could the eu help to bring about change, accelerating Moldova's Europeanization?
Topic:
Democratization and Government
Political Geography:
Europe and Moldova

1895. The New Capital Requirements Directive: What pieces are still missing from the puzzle?

Author:
Rym Ayadi
Publication Date:
09-2005
Content Type:
Policy Brief
Institution:
Centre for European Policy Studies
Abstract:
After almost seven years of hard work to produce a new substantive piece of legislation updating the current banking regulation for European credit institutions and investment firms – the Capital Requirements Directive (CRD) – it looks like its timely adoption is still uncertain. The main problem is the dissatisfaction of Parliament with its limited role in comitology and in the Lamfalussy process, which has led it to suspend 'temporarily' the comitology provisions of the CRD, casting doubt over the future ability to amend the legislation. The European Constitution addresses Parliament's concern about ensuring democratic accountability in the comitology process in Art. 36. The pause for reflection on the Constitution prompted by the no-votes in the French and Dutch referenda has re-ignited the issue and is forcing EU institutions to seek a new inter-institutional agreement on this issue.
Topic:
Debt, Economics, and Government
Political Geography:
Europe

1896. The Black Sea as Epicentre of the Aftershocks of the EU's Earthquake

Author:
Michael Emerson
Publication Date:
07-2005
Content Type:
Policy Brief
Institution:
Centre for European Policy Studies
Abstract:
It so happens that the epicentre of the EU's referenda earthquake – by way of its external impact – has now been located exactly in the middle of the Black Sea. Paradoxically, this comes at the same time that the region has begun to show signs of possibly getting a grip on itself.
Topic:
Government and International Organization
Political Geography:
Turkey, Ukraine, Eastern Europe, Bulgaria, and Romania

1897. Egypt's Moment of Reform: A Reality or Illusion?

Author:
Emad El-Din Shahin
Publication Date:
07-2005
Content Type:
Policy Brief
Institution:
Centre for European Policy Studies
Abstract:
The movement for democratic reform in Egypt seems to be gathering strength. Some of the factors that would make a good case for democratic transformation are rapidly converging: the formation of a wide spectrum of discontented segments in society; the mushrooming of pro-reform grass-roots movements that agree on a clear list of short-term demands; and a sympathetic pro-reform international context. With presidential and parliamentary elections scheduled to take place in September and November respectively, will Egypt finally experience its democratic spring? The answer to this question still seems uncertain. The reform movement faces numerous challenges: the possibility of being sidelined by an agreement between the regime and external actors for the sake of stability and containing change; regime repression of the reform movement; and the radicalisation of the movement itself and the possible eruption of sporadic violence or chaos. For reform to become a reality and not another missed opportunity, certain structural changes and institutional safeguards must be introduced.
Topic:
Civil Society, Government, and Human Rights
Political Geography:
Africa and Egypt

1898. Should ratification proceed? An Assessment of Different Options after the Failed Referenda

Author:
Sebastian Kurpas
Publication Date:
06-2005
Content Type:
Policy Brief
Institution:
Centre for European Policy Studies
Abstract:
After the resounding Dutch no-vote of 62%, ratification of the Constitutional Treaty has become even less likely than it already was after the political earthquake caused by the French referendum three days before. While the German Chancellor and the French President encourage other countries to continue with the ratification process, the British message is clear: Any attempt to proceed at this point would be pointless. British Foreign Minister Jack Straw found rather subtle words in the House of Commons to describe the situation, but other sources suggest that instead of wasting their time on a lengthy and useless exercise that would cost the EU even more support, European leaders should bury the Constitution at the upcoming European Summit on 16-17 June (or soon afterwards) and then settle for something 'more modest'.
Topic:
Government and Treaties and Agreements
Political Geography:
Europe and France

1899. Political Integration in Europe and America: Towards a Madisonian Model for Europe

Author:
Mark C. Christie
Publication Date:
05-2005
Content Type:
Policy Brief
Institution:
Centre for European Policy Studies
Abstract:
While integration in Europe is, in several important aspects, already more advanced than it was in America during the decades prior to the American Civil War, there are important differences that make deeper political integration comprising all members of the European Union unlikely in the near term. A smaller group of EU members, however, is likely to continue towards deeper integration, although questions of constitutional legitimacy must be confronted and resolved. European integrationists may find the federalist principles of James Madison, regarded as the father of the American Constitution, valuable both for deeper integration and wider expansion. A Madisonian federal model for Europe could prove acceptable both to many euro-federalists and euro-sceptics and thus advance the cause of European integration. Ironically, a European federal union based on Madisonian principles would be much closer to the vision of many of America's founders than the federal structure of present-day America.
Topic:
Government and Politics
Political Geography:
United States and Europe

1900. What Could be Saved from the European Constitution if Ratification Fails? The Problems with a 'Plan B'

Author:
Sebastian Kurpas
Publication Date:
05-2005
Content Type:
Policy Brief
Institution:
Centre for European Policy Studies
Abstract:
The pressure is on for the defenders of the European Constitution. Although initially it seemed as if referenda would only be problematic in countries that have a reputation for a certain degree of Euroscepticism, now even France and the Netherlands look like unsafe candidates for public approval. While there is still a fair chance that a majority of the French will vote 'yes' when actually at the ballot box, there is an understandable nervousness among prointegrationists. A French 'no' would be the most serious obstacle that any one member state among those holding a referendum could create. In the likely case that other member states besides France then reject the text – possibly for entirely different or even opposing reasons – it would become extremely difficult to 'save' the Constitution in its entirety.
Topic:
Government, International Organization, and Regional Cooperation
Political Geography:
Europe