Written Contribution

“Vienna+20" human rights expert conference, 27/28 June 2013 in Vienna

Working Group 1: Strengthening the Rule of Law: The Right to an Effective Remedy for Victims of Human Rights Violations”

Thomas Unger

Introduction

  • Today, it has been widely accepted that there should be accountability after gross and systematic Human Rights (HR) and International Humanitarian Law violations.This is reflected in clear policy commitments at the level of the UN and at the regional level, which condemn violations and ask parties to comply with their relevant obligations under international law;it is also reflected in the establishment of enforcement mechanisms and mandates to look into question of accountability (ICC, the establishment of Commissions of Inquiry, HRC Mandate of Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence), as well as in practice on the ground (national prosecutions for serious crimes, establishment of Truth Commissions, reparation programs, programs for vetting of pervious human rights violators).
  • Despite these developments implementation on the ground continues to be a problem:
  • There is a lack of consistent practice at the national level; we are lacking success stories, especially in post-conflict contexts.
  • At international level there are obvious limitations. ICC is facing many challenges and high expectations, it will not be able to fulfill. The UN SC is not consistent in following up on accountability for serious crimes and the mechanisms it has created, in this respect. The actual support for HR mechanisms on the ground is stagnating.

Transitional justice and its contribution to the fight against impunity

  • The field of transitional justice has some experience and lesson learned in trying to overcome practical challenges of implementation. Looking at this practice might help us to better understand these challenges, to tackle them better and be more targeted in our response;
  • As is widely known, Transitional Justice is understood to include 4 pillars/measures relating to: truth, justice, reparations and guarantees of non–recurrence/institutional reform(see 2004 SG Report on the rule of law and transitional justice). The comprehensive application of these 4 measures is the strength of transitional justice;
  • Transitional justice is a relatively young field but with significant practice; it has its origins in the political transitions in the 80s and 90sin Latin America. It then rapidly moved to other places, such as Central and Eastern Europe, Africa and Asia;
  • Why did transitional justice travel so fast from one context to other?
  • Legal argument: There are clear legal obligations under each of the 4 pillars;
  • Moral argument: There is a moral obligation of the society vis-à-visthe victims of atrocity crimes;
  • Pragmatic argument: Transitional Justice Mechanisms showed, at least in post-authoritarian contexts, concrete practical results
  • There are 5 important lessons learned from the application of transitional justice. These lessons could be useful in addressing the challenges we are facing to implement effective strategies in the aftermath of serious violations.
  • (NB: transitional justice is not a specific form of justice: it’s more a strategy to achieve justice in transitional processes)

Lesson 1: Importance to take a comprehensive approach after serious HRand IHL violations

  • Practice in the field of transitional justice has shown the importance to take a comprehensive approach after serious crimes, such as genocide, crimes against humanity and war crimes;
  • Justice demandsand needs are high in periods of transition, situation/institutions on the ground are often insufficient to deliver on this demands, due to i.a. lack of political will, weak institutions, lack of resources etc;
  • To implement the four measures of transitional justice in an integrated mannerincreasesthe chances to achieve justice on the ground, for the victims, but also as a an enabler for the whole society to deal with the past;
  • The importance of taking a comprehensive approach has been affirmed by the UN (see 2004 SG Report on the rule of law and transitional justice, HRC Resolutions and also Security Council Resolutions). The comprehensive approach is at the heart of the newly established HRC Mandate of the Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-Recurrence.
  • Practice has shown that, unfortunately, the comprehensive approach is not implemented on the ground. There is a tendency to tradeoff one measure against the other. But to bargain with justice is likely to be self-defeating. In addition to conflicting with international obligations a state may have under each of the 4 measures, a policy of tradeoff is likely to undermine the possibility that measures of the government addressing rights violations will be interpreted as justice measures in good faith. Example: To only put in place a Truth Commission without trials might be considered as a whitewash; to only put in place reparation without mechanisms establishing the truth might be considered as “buying the victims”.
  • More effort has to be undertaken to support the implementation of a comprehensive approach after serious violations.

Lesson 2: Identifying common justice goals after serious violations

  • Transitional justice has helped to identify common goals for justice after serious human rights violations, and thereby giving shape to the broad international obligations to combat impunity.
  • Before looking closer on what these justice goals are, we will need to understand better the consequences of serious human rights violations. Serious human rights violations dehumanize and strip a person off its dignity. They shatter normative expectation fundamental to our sense of agency in the world. The loss of trust in the institutions, which are supposed to protect citizens – the loss ofbelieve in “the rule of the game” –, is one of the worst effects of victimization.
  • Serious human rights violations don’t only affect the victims they also have a huge spillover effect shaking the foundation of a whole society. If not addressed adequately they will keep dividing a society.
  • Transitional justice policies look at these consequences in order to identify adequate goals as part of a comprehensive strategy to response to violations.
  • From this perspective, Transitional Justice mechanisms can be seen as measures that promote recognition, civic trust, and the democratic rule of law:
  • They provide recognition to victims by recognizing them as a bearer of rights (e.g. prosecutions provide recognition that norms apply to all and that no one is above the law);
  • They increase the degree of trust that citizen have in the institutions of a state (e.g. reparations show to the victim the seriousness of new institution to address violations);
  • They contribute to strengthen the democratic rule of law (e.g. Truth Commissions contribute to understanding the many ways on how legal systems failed to protect the rights of citizens and provide the basis on which legal system can behave in the future);
  • Any system of justice - a system of effective, actionable, and legitimate rights - is unimaginable without these elements of recognition, civic trust, and the democratic rule of law.
  • The identification of goals through the discipline of transitional justice helps to design more targeted accountability policies and also provide for indicators/direction in the process of implementation. They provide a compass and a framework. To have these goals in mind will be important for the implementation of accountability measures. Measures to support national reconciliation process have to be assessed in this way.

Lesson 3: Importance to link transitional justice to development and security

  • There is a risk to overburden transitional justice in periods of transformation (e.g. for example to conflate reparations with development).Transformationprocessesfrom conflict to peace/ from a consistent erosion of the law to a system of justice and the rule of law/ from lack of development to prosperous economiesare comprehensive and include legal, social, economic, constitutional aspects. Transitional Justice is only one part of that.The main purpose of transitional justice in this transformation processes is norm affirmation, to recognize victims again as bearer of rights, as citizen. This delimits what transitional justice is supposed to do and what not.
  • It is important to work together to address the myriad of challenges after conflict, which no policy or military intervention can claim to solve on its own. It is, thus, important to link transitional justice to other policy intervention, such as development and security.
  • We are only at the beginning to better link different policy intervention in periods of transformation. Misperception of each other’s role istoo often dominating the discourse. Critics of transitional justice measures still counter by saying:
  • Addressing the past is not urgent, there are other priorities in post conflict settings;
  • Transitional Justice requires certain level of institutionalization; first these institutions have to be created then we talk about justice.
  • From a practical point this criticism is flawed: It is true that justice processes take time, but they can be started, even in conflict situations, with e.g. documentation; recent practice of the establishment of CoI, operations of ICC in situations of conflict, but also monitoring and reporting by the SC on sexual violence are important practices to highlight in this respect;
  • But more importantly, a more robust understanding of security and development would see the value of justice measures, such as transitional justice, that seek to re-establish or establish for the first time legally mediated systems of rights with norm-affirming potential
  • Currently we are, however,still too often faced with a weak understanding in practice of development (“economic growth”) and of security (“negative peace”). But also the justice community has to do better in addressing the concerns of their counterparts,in order to move forward together.
  • The link between justice, including transitional justice, developmentand security has been acknowledged by the World Development Report in 2011, as well as in the outcome document of the recent 2012 UNGA high level panel on the rule of law.
  • With some exceptions, this has to be still translated in concrete policies and programming on the ground.The discussion in the context of the 2015 Development agenda, provide a timely platform to address these questions.

Lesson 4: The effectiveness of transitional justice mechanisms has to be assessed in a context specific manner

  • Practice shows that there is a significant challenge of increasing the effectiveness of the 4 measures of transitional justice when implemented in post-conflict contexts.
  • As mentioned before, the measures of truth-seeking, justice initiatives, reparations, and guarantees of non-recurrence emerged as practices and experiences in post conflict settings, such as the Latin American countries of the Southern Cone. These countries shared some main characteristics. They had achieved a high degree of institutionalization. Second, the measures that emerged were a response to abusive exercise of state power through exactly those institutions. The aim of these transitions was to recover those institutions, which have been so brutally disrupted.
  • In contrast, post conflict contexts are often marked by weak institutions and enormous scarcity of resources. Mechanism of redress that rely on a certain degree of institutional strength and presupposes a certain stock of civic trust will face challenges in post conflict contexts.
  • Similarly in transitions out of conflict the number of perpetrators, the type of violations and the universe of victims are usually larger than in the typical transition out of authoritarianism.
  • Context specific challenges should, however, not be used as a pretext to refrain from concrete action on the ground. There are clear international obligations of providing effective investigations and access for victims to justice. Serious thinking needs to be done about how transitional justice measurescan be designed and implemented more effectively in these challenging contexts, without losing their teeth.

Lesson 5: Transitional justice has contributed to strengthen justice and social networks as well to provide victims with a voice

  • Beside the norm affirming character of transitional justice, one of the most important effects of establishing transitional justice measures is the formation of a plethora of civil society organizations around them.This formation will contribute to achieving the goal of strengthening a system of a democratic rule of law.
  • The 4 measures, in many situations, also ensure to give victims a voice and space; more systematic implementation in the area of participation is, however, required.

Way forward/Recommendations

  • If we want to change the situation on the ground, there is still a need to deepen our understanding on how to effectively respond to serious violations, especially in post conflict settings.
  • Field of transitional justice provides some lessons learnedthat will strengthen accountability for serious crimes on the ground:
  • Importance of taking integrated approach to meet justice demands/needs of victims and a society at large after conflict;
  • Identify justice goals after serious violations will help to keep direction and measure success;
  • Link different policy intervention, such as transitional justice, development and security, to maximize impact and enable the change to a system based on the principle of democratic rule of law;
  • Continue strengthening support for civil society by ensuring effective participation, which will in turn give legitimacy to the process.
  • Sustaining political support for transitional justice mechanisms at all levels is important.

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