TRANSITIONAL JUSTICE PROGRAMME REGIONAL …

R E G I O N A L C U R R I C U L U M D E V E L O P M E N T 1

TRANSITIONAL JUSTICE PROGRAMME

REGIONAL CURRICULUM DEVELOPMENT

2 R E G I O N A L C U R R I C U L U M D E V E L O P M E N T

United Nations Development Program UNDP Belgrade, February 2007

Transitional Justice Programme

Regional Curriculum Development


I SITUATION ANALYSIS AND STRATEGY

I.A. Situation Analysis

I.B. Justification

I.C. Background

I.D. Project Overview

I.E. Intervention Strategy

I.F. Beneficiaries

II PROJECT RESULTS AND RESOURCES FRAMEWORK

II.A. Results framework

II.B. Results Framework Table

II.C. Outline Timetable

III MANAGEMENT ARRANGEMENTS

III.A. Institutional Framework

III.B. Project Roles and Responsibilities

III.C. Monitoring and Evaluation

IV THE LEGAL CONTEXT

Contents



About the Programme

Given the state of events in the region, UNDP Serbia launched a re-gional Transitional Justice Programme in January 2005 in coordination with UNDP Country Offices in Bosnia and Herzegovina, Croatia, Kosovo and Montenegro. The aim of the Transitional Justice Programme is to strengthen the research, training, knowledge sharing and public informa-tion capacities of post-conflict social institutions in order to precipitate the creation of nationally driven remedying policies and mechanisms. The means to achieve this will be to offer best practices, capacity build-ing and strategic policy advice assisting the governments’ and CSO’s ef-forts in addressing cross-cutting development, conflict prevention and justice issues. Building upon the work of the previous phase of the transi-tional justice programme in laying the groundwork for regional coopera-tion and encouraging dialogue on the feasibility of transitional justice initiatives, the result of this next phase will be the institutionalization of national and regional transitional justice policies and mechanisms.. The training component of the Transitional Justice Programme has been de-veloped to provide government and civil society actors involved in recov-ery efforts greater insight into areas including war crimes prosecutions, reparation practices, documenting the truth, reconciliation initiatives and representation of the past in educational programmes, within pro-fessional groups and among practitioners from complementary fields.


Who is it for?

The Transitional Justice Learning Workshops were designed primarily for:

Members of parliaments from countries/territories in the region (Bosnia and Herzegovina, Croatia, Kosovo, Montenegro and Serbia)

Representatives of judicial bodies from countries/territories in the region (Bosnia and Herzegovina, Croatia, Kosovo, Montenegro and Serbia)

How have participants benefited?

The Learning Workshops programme has

Broadened knowledge and understanding of the need to resolve outstanding issues relating to the legacy of the past,

Exposed participants to an exchange of information of national stra-tegic priorities in advancing transitional justice and

Identified proposals for integrated regional transitional justice de-velopment programming.

What the programme covered

The Learning Workshop programme was divided into two modules; one for mem-bers of parliaments and the other for representatives of judiciaries in the region. Each workshop dealt with the four pillars of transitional justice, (1) war crimes prosecution; (2) reparations; (3) truth-seeking; and (4) institutional reform. The programme lasted two weeks, one for each professional group. The program con-tained presentations, ex – cathedra lectures, discussions and projections of the documentaries connected with transitional justice issues.

The participants and lecturers were asked to share knowledge, experience and lessons learned from their work in the field. The Learning Workshops were created to face different perspectives of understanding transitional justice mechanisms among participants and to underline basic principles for regional cooperation that rely upon constructive dialogue. The dialogue was based on a principle that places “understanding” over “reacting”. The UNDP Learning Workshops, as a part of the multi – year Transitional Justice Programme, endorse this foundation as a first step in the process of reconciliation in the region.


Key Points and Questions of the Learning Workshops

1. What is transitional justice and does it have a place in the region?

2. Which issues and time frames form the basis for transitional justice in the region?

3. What mechanisms and frameworks are viable in addressing these issues?

4. What transitional opportunities and challenges exist in setting up the above mentioned mechanisms and frameworks?

5. What are the roles of the state and non-state actors in addressing these tran-sitional justice issues?

Curriculum

Curriculum can be defined as “a plan incorporating a structured series of intend-ed learning outcomes and associated learning experiences, structured into a se-quence and generally organized as a related series of units”1.

Curriculum development is one of the pillars of the training component of the Transitional Justice Programme Its content is based on a multidisciplinary ap-proach of the subject-matter among competencies and learning areas, in which each subject is required to meet the specific goals of a particular competence in a particular learning area.

The Curriculum Development Process Matrix was designed to select and organize the content, to design learning tasks and activities, to set out the roles of partici-pants, lecturers, to select learning materials, assess participants’ understanding, performance, and progress and evaluate the effectiveness of the design . The cur-riculum design brings together approach (theory) and practice (method).

There are six major competencies in four main learning areas (see Table 1). Each box is filled with particular educational goals and their achievement indicators in each competence corresponding to each learning area. This allows educational goals to be distributed according to their division between areas of learning, and avoids overlapping of the subject-matter.

The Learning Workshops curriculum design can be shown as a continuum. At one end are programs with pre-selected and pre-organized content and activities — designed to yield predetermined outcomes.

1 Guide Book for Cur-riculum Development and Adaptation, In-ternational Project on Tehnical and Vocation-al Education, UNEVOC, UNESCO, Adelaide Institute of TAFE (Aus-tralia), UNESCO/PROAP Bangkok, 1995.


Learning area/competence

Prosecutions Reparations Truth Seeking Institutional Reform/Vetting/Lustration

Shared understanding

X X X X

Best practices X X X X

New Skills X X X X

Co-operation X X X X

Communica-tion

X X X X

Learning and practical action

X X X X

TABLE 1. Major competencies and learning areas


Curriculum Development Cycle (Continuous Feedback and Improvement)

Evaluations Competencies(SharedUnderstanding, Best Practices, New Skills, Cooperation, Communication, Learning and Practical Action)

TransitionalJusticeLearning Areas (Prosecutions, Reparations, Truth seeking and Vetting/Lustration)

Multidisciplinary Approach

MomentumAnd Programming Areas (Lessons Learned)

Need Assessment(Situation Analysis and Training Needs)



Lecturers’ Evaluations

The Learning Workshops lecturers actively par-ticipated in the creation of regional curricula in the area of transitional justice by providing their feedback on suggested topics, types of training, suggested methodology, specific target groups that might be interested in training in this area. The following tables indicate the results of these evaluations:


LECTURER’S EVALUATIONS

Learning Area/

CompetenciesProsecutions Reparations Truth Seeking

Institutional Re-form/Vetting/Lus-tration

Topics Legislation, in-ternational le-gal standards, repression of international humanitarian and criminal law violations

Legislation, compara-tive practices which could be modeled elsewhere

Comparative practices (truth commissions), official records, data basis (col-lecting documen-tation)

Legal mechanisms for institutional re-form, comparative practices

Methodology Lectures, panel discussions, workshops

Types of Training Summer schools, seminars (3-5 1.5xpert meetings

Target Groups Members of parliament, young politicians (future decision makers)

Training Needs Theory and practice in all areas of the transitional justice

Results of the Session (Competencies)

Shared understanding, potential for initiating regional cooperation, construc-tive dialogue, familiarization with the TJ context.

Module 1 (Parliamentarians)


LECTURER’S EVALUATIONS

Learning Area/

CompetenciesProsecutions Reparations Truth Seeking

Institutional Re-form/Vetting/Lus-tration

Topics Practical as-pects of retrib-utive justice (command responsibility, joint criminal enterprise, witness pro-tection, status of victims in proceedings)

Material and Symbolic Reparations (theoretical knowledge and compara-tive experi-ences, legal mechanisms)

Alternative mechanisms as a complementary criminal justice process

Reform of the judi-ciary (comparative experiences)

MethodologyLectures, panel discussions, workshops, exchange of information, legal assis-tance, knowledge sharing.

Types of Training

Summer schools, regional meetings, counsel meetings, conferences, expert seminars

(3-5 days)

Target GroupsRepresentatives of judiciaries from the region and supporting personnel from state institutions

Training NeedsPractical aspects of criminal law proceedings and the theory and practice of the other three transitional justice pillars

Results of the Session(Competencies)

Shared understanding, potential for strengthening regional cooperation, joint-training programmes, familiarization with the TJ context.

Module 2 (Judiciary)



Transitional Justice Evaluation Workshop

Introduction and Context

Given that the Learning Workshops brought together for the first time representa-tives of the legislative and judicial branches of the countries/territories in the re-gion to discuss transitional justice remedies, the aim of the evaluation workshop was to create a potential for behavioural changes that may lead to alleviating ob-stacles and to allow participants to identify their own values of the importance of transitional justice mechanisms.

Having in mind differences among these countries/territories concerning strate-gies of implementing elements of transitional justice, obstacles in implementa-tion, andactual progress to date, the Evaluation Workshop is designed to give the participants the opportunity to express their personal views, to overcome preju-dices and stereotypes that exist between them and to work to construct a com-mon understanding of the meaning of transitional justice.

The Evaluation Workshop was divided into three sessions:

Session 1 “Four elements of transitional justice – Construction of a shared understanding” provided an introduction, explanation of the work-shop purpose and the methodology, and had the participants provide a common definition, includingcharacteristics, of the four elements of transitional justice. Throughout the defining exercise, areas of agreement/disagreement were identi-fied and constructively dealt with.

Session 2 “Resistance and obstacles in the process of transitional justice” focused on perceived resistances and obstacles in the processes of transitional justice. It included defining the main obstacles/resistance in the process of tran-sitional justice, becoming aware of the main societal perceptions that need to be addressed, and addressed different points of view.

Session 3 “Building allies” focused on building allies, defining the main stakeholders in the processes of transitional justice, determining a personal role in these processes and discussing the need for regional cooperation and the ex-pectation participants had from each other in the process.

During the workshop participants had an opportunity to:

1 Discuss issues within the field of transitional justice


2 Express opinions on what participants felt are the most important elements in the four areas of transitional justice

3 What the participants perceive to be the main obstacles and/or resistance to the process of transitional justice

4 Who are the main stakeholders in the process of transitional justice

5 How the participants define their personal role in the process of transitional justice

6 Do the participants perceive the need for regional cooperation

7 What are the expectations the participants have from each other.

Key Considerations and Methodology

Transitional Justice may cause conflict or tension among participants (since they are representatives of countries that were/still are in conflict), therefore the selection of questions for discussion in small groups, the ways of presen-tation of group work, facilitation of plenary discussion, etc were carefully de-termined.

Considering the overall objectives of the Workshop, it was decided that par-ticipants should work in mixed groups as much as possible, to be able to share ideas and experiences and to identify areas of agreement or disagreement.

During the sessions it was important to encourage input from participants, both in situations where they worked individually and in small groups. Those inputs proved both necessary and helpful for finalizing the actual content of group discussion. Input from participants help to ensure that there is a base-line understanding of what is being done and provide direction for discussion. They also help to stimulate further ideas and to clarify concepts and issues. The role of facilitator was only to help participants share their own perspectives and to formulate their views in a concise and easy-to-understand manner.

Facilitators were aware of the gaps or perceived differences among partici-pants, recognizing the impact they could have on group participation and tried to create horizontal space for discussion and equal spaces for all partici-pants to talk about their ideas and experiences.


Results and Outcomes:

The results of the discussion during the workshop are useful for evaluating some of the expected outcomes of the programme: whether participants are able to construe shared understanding and deal with areas of disagreement in construc-tive way; do they perceive the possibility for regional cooperation and what kind of cooperation they expect.

Workshop Products Evaluation Workshop for Parliamentarians

Session 1: Four elements of transitional justice – Construction of shared understanding

The goal of this session was to:

Define basic characteristics of four elements of transitional justice

Define areas of agreement/disagreement

Deal with areas of disagreement in constructive way

Highlights of the discussions on the areas of agreement and disagreement on transitional justice concept and its goals are shown in the table below2:

2Participants expressed their personal views


Areas of AGREEment Areas of disagreement

new and imposed concept, not understandable (justice is suf-ficient concept, there is no need for the word “transitional”)

process of facing the past and ac-cepting the truth

process of dealing with injustices committed by the institutions of the previous regime

reparation for victims

process that is very difficult to implement

building new institutions that will represent democratic society: fo-cus on judicial system, police and military

necessary transition from “abnor-mal to normal society”

issue of lustration (whether it is necessary)

whether there is political will to resolve the problem

whether there is awareness in so-ciety about the necessity for tran-sitional justice

what is the tim e frame for tran-sitional justice (what period it should include), what period should be in the focus of transi-tional justice

whether it should be universal model, or adjusted according to specifics of each region

whether it should be inclusive (all elements of transitional justice) or priorities among them should be made

what is the range of TJ: whether it includes only relations with other states, or TJ deals with internal conflict/problems too


Goals of Transitional Justice


prevention of future conflict

creating conditions for coopera-tion and stability in the region

providing the rule of law, civic so-ciety and democracy

building healthy society

affirmation of human rights and humane relations, tolerance

establishing the truth

development of personal respon-sibility

empowering individuals

harmonization in society

requires economic and external support


Session 2: Resistance and obstacles in the process of transitional justice


Define the general obstacles/resistances toprocesses of transitional justice

Become aware of, and identify the main societal perceptions that need to be changed in order to progress in areas of transitional justice

Highlights of the discussions on resistance and obstacles in transitional justice processes are shown below3:

Participants identified four categories of obstacles that remain problematic and that should be addressed:

3 Participants ex-pressed their personal views


1 General obstacles

Danger of becoming stuck in the past – transitional justice is always referring to the past;

Amnesia model – forgetting the past is better, because dealing with conflicts in the past can create new conflicts in present times;

Unclear outcomes of transitional justice process – there is no guarantee that is going to bring benefit, so it is better not to start the whole process;

Limited range of impact – it is not possible to include all institutions and in-dividuals;

External factors – lack of understanding of current situations, lack of respect for processes in other countries, taking sides, etc;

National and state interests can be jeopardized by implementing transitional justice;

Necessity to work on two levels: state level and interstate level, which is dif-ficult to establish;

Legal and political aspects of the problem are merged: transitional justice should be presented as mainly a legal problem. Some issues of Transitional Justice are used as a tool for political promotion/manipulation.

2 Obstacles/resistance on societal level

Prejudice and bias: Extremely difficult to deal with effectively.

Dealing with truth/facts in own society, facing the past and actions that hap-pened in the past (facing the legacies of criminal acts that were done in the name of a people or nation, , defining adequate sanctions for what happened in the past);

Messages sent by official institutions that may either obstruct or encourage the processes of transitional justice;

3 Obstacles/resistance on institutional level

Implicit resistance (explaining that war crime prosecutions are needed for improving relations with the EU and the international community);


Political elite is not clear what attitudes towards Transitional Justice they should have in light of their constituencies;

Lack of political will – absence of agreement among parliamentarian parties on ways and means of implementating Transitional Justice mechanisms;

The judicial system is not functioning as it should – there is a lot of implicit and even explicit obstructions in the process of implementing Transitional Justice mechanisms;

Kosovo (all prosecutions that were in progress are stopped – from Serbian part of Kosovo 18000 persecutions).

4 Obstacles/resistance on individual level

Inter-connectedness with societal and institutional level - individual per-ceptions are formed by societal and institutional messages and can not be changed without transformation on the institutional and societyal levels;

Parliamentarians as individuals – difficult to divide professional and personal attitudes, sometimes MPs give up their personal values to fit in parliamentar-ian platforms and their party’s profile.

Session 3: Building allies


Define the main stakeholders in the process of transitional justice;

Define personal role in that process;

Discuss the need for regional cooperation and the expectation they have from each other in that process.

During the third session, participants identified the elements which should be taken into account or consider very important for transitional justice processes and cooperation in the region:

Time: it is important that an extended timeframe be provided;

Pace: change should be slow;

Strong political will: marginalization of radical nationalistic actions (instead of making mainstream policy out of them);

Clarity: sending a very clear message constructive values in contrast to those existing, and readiness to advocate for them;


Individualization: creating and adjusting the different models of transitional justice to the specifics of each country;

Cooperation in the region: formulating common goals, process of cooperation among politicians in the region;

Obligatory first step: a lot of changes started unwillingly, but then they devel-oped and became everyday practice.

Evaluation Workshop for representatives of judiciaries

Session 1: Four elements of transitional justice – Construction of shared under-standing


Define basic characteristics of four elements of transitional justice;

Define areas of agreement/disagreement;

Deal with areas of disagreement in constructive way.

Highlights of the discussions on the areas of agreement and disagreement on transitional justice concept and its goals are shown in the table below4:

4 Participants ex-pressed their personal views



General concept, system of laws, ideas

Process of dealing with conflicts

Constitution of new justice systems

Way to rebuild peace in the region

Cycle of improvement of life conditions

Condemning the war crimes and values that underlie them

Facing the past and recognize the facts/truth

Rebuilding the rule of the law

Process of transition to democratic society

Process of overcoming the bad past, striv-ing for the new values

Process which comes after decomposition of bigger non democratic state

Complicated process which requires a lot of material and human resources

All elements are equally important

Too much attention is focused on prosecu-tions and trials, and that is not sufficient, can not solve all the problems

How to define responsibilities, who is re-sponsible for TJ implementation

How much attention and “work” should be dedicated to the victims and how to define who are the victims – some of them see victims only among their own people, some of them see victims only among nations they were fighting against, some talk only of the victims of the wars, some about victims of totalitarian regimes inside the respective countries

Whether countries have enough integrity to conduct trials independently or if inter-national support is still necessary and im-portant


Goals of Transitional Justice

AGREE DO NOT AGREE

Establishing the rule of law

The way to stop violation of human rights

Establishing society based on the standards of parliamentarian democracy

Changing of consciousness, accepting responsibility for the past and the future

Protection of values in new society

Reparation for the damage done

5 Participants expressed their personal views


Session 2: Resistance and obstacles in the process of transitional justice


Define general obstacles/resistance in the process of transitional jus-tice

Become aware of and identify the main societal perceptions that need to be changed in order to enable progress in the area of transitional justice

Highlights of the discussions on resistance and obstacles in transitional justice processes are shown below5:

Participants identified three categories of obstacles that remain problematic and that should be specifically addressed:


1 Obstacles/resistance on societal level

Lack of political will – to go to trials and to deal with the past, a lot of am-bivalence and vagueness is present and that puts additional burden on legal system;

Economic transition – poverty, lack of resources, dealing with economic situ-ation is perceived as priority;

Political unpopularity – fear of labelling as national traitors, losing votes and elections, political calculating;

Media presentation – media are forging and distorting facts, giving explana-tions that are in tune with existing societal perceptions (like victimization of own nation, dehumanization of others, patriotism, etc);

Lack of lustration – it is difficult to expect that without lustration change can be created;

Traditional way of thinking/ non-urban places/, blaming the rural population for the past and present situation;

NGO sector should cooperate with the government, they should support each other and rely on each other, exchange evidence, information etc;

Clarity: there is no clear political attitude and message (representatives from Serbia);

Lack of adequate information, avoiding or skipping to inform citizens – lack of clarity and the explanation of what TJ is and why it is important.

2 Obstacles/resistance on institutional level

Lack of legal framework – signing agreements between courts in different countries is necessary;

Justifying war crimes and resistance to implementation of Transitional Jus-tice – some elites are still obtruding all actions directed to implementation of Transitional Justice mechanisms, they create discontinuity in group history and feel gaps with religious fundamentalism, nationalism and new history which usually is not in tune with the facts;

Educational system - is still based on societal perceptions which are contribut-ing to the status quo in the societies;

Lack of political will – creating conditions for laws to be implemented.


3 Obstacles/resistance on individual level

War experience – lot of people still remember war and need recognition for the pain they have suffered;

National belonging – nationalistic feelings are still very strong, , as well as de-humanization of other groups;

Educational level - low educational level is present in all structures;

Poverty – economical problems are vast, and they are perceived as a priority over transitional justice processes

Supporters of war criminals are still very strong , they provide media and social distraction;

Prejudice and bias – very alive and present.

Session 3: Building allies


Define the main stakeholders in the process of transitional justice;

Define personal roles in that process;

Discuss the need for regional cooperation and the expectation they have from each other in that process.

During the third session, participants identified the elements which should be taken into account or consider very important for transitional justice processes and cooperation in the region:

Reconciliation: The most important, last link in the process of societal recover-ing – includes substantial transformation and change in society and institu-tions;

Defining common goals in the region – agreement on what is the minimal joint interest and setting common goals in a proactive approach;

Deconstruction of prejudice, bias and stereotypes – organized action on all levels of society;

Individualization of guilt - providing just trials and not creating and rewriting history;

Dealing with denial – personal, cultural and official types of denial should be overcome, the official discourse has to be rewritten, and dealing with the past is necessary;


Regional cooperation - joint meetings with representatives of all countries in the region are needed - this can create opportunities for exchange, building shared meanings and adjusting of attitudes;

Continuous and comprehensive support - international support and support inside countries is needed as much as support from colleagues in the region.

The participants concluded that regional cooperation is insufficient, although it is better then few years ago. The beginning of the trials for war crimes in coun-tries in the region is accelerating mutual aid, most notably between prosecutors. Cooperation between Serbia and Croatia is currently the most present and most effective. It is needed to improve cooperation in the process of protection of wit-nesses. Kosovo representatives who were working in one group, both Albanians and Serbs, claimed that due to the province being a protectorate, cooperation between them is disabled, contacts that are not mediated by the UN are lacking, there is no independence, communication is not effective and information flow is slow because it must be delivered through diplomatic channels. They would like to have more direct contacts with each other, and expect from UNDP and other agencies to support them in this initiative.

The participants also stressed the role of NGO’s in these fields, since they have strong networks in the region, years of experience in exchanging information and are willing to openly support transitional justice processes. Public perceptions should be adjusted through more responsible media.

Participants proposed the establishment of special courts in each country and outlined the importance of political will to support an independent judiciary sys-tem ready to deal with the past and the truth. Also, representatives of the judi-ciary concluded that special institutions (bodies) in the region should be estab-lished in order to enable more efficient cooperation. These bodies should work on standardizing legislation, cooperation between police, investigating officers, ad-ministrative organs and the judiciary, and signing bilateral, multilateral and other agreements among the states/territories in the region.


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