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Abstract

The focus of this paper will be only on prosecutions and other mechanisms with formality and ability to punish akin to a prosecution. Of the many such pseudo-prosecutions, particular focus will be paid to Truth and Reconciliation Commissions for their formality, their ability to grant amnesty, and the darling space they occupy in the collective public and scholarly imagination. Second, the importance of local ownership will be discussed. As previously mentioned, a great deal of work has been done on this particular topic. The discussion in this article will be limited to the problems associated with local ownership in transitional justice. There are two extremes within this problem that will be discussed in this paper. The majority of the discussion will focus on the many systems that local populaces have considered imposed upon them by the international community because of a lack of decision-making and no incorporation of local norms. However, there will also be a discussion of the Rwandan Gacaca, in which a local system was adopted nearly wholesale and has still encountered extraordinary problems. Third, the international law of fair trials will be examined through international and regional human rights treaties and international case law. Various international courts have repeatedly examined the requirements for a fair trial. The law will be surveyed in an attempt to create a rough sketch as to what constitutes a fair trial under international human rights law. Within this sketch, various areas of flexibility will be identified. These will be the areas in which traditional or local forms of justice can be inserted without running into conflict with international human rights norms. In particular, the distinction between what constitutes an individual right and what is a requirement of the tribunal form will be discussed. This article aims to demonstrate that while international law mandates individual rights within a particular form, there exists some flexibility in rights that fall within the form of the tribunal. This distinction will be addressed in great detail later in the paper.

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