Transitional Justice

United Nations

The United Nations has a long history of assisting societies devastated by conflict or emerging from repressive rule to re-establish the rule of law and come to terms with large-scale human rights violations. For the UN system, transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. It consists of both judicial and non-judicial processes and mechanisms, including prosecution initiatives, facilitating initiatives in respect of the right to truth, delivering reparations, institutional reform and national consultations. Whatever combination is chosen must be in conformity with international legal standards and obligations.

The UN has a long-standing policy of opposing peace agreements that include amnesties for genocide, war crimes, crimes against humanity, gross violations of human rights, or serious violations of international humanitarian law. The UN will neither establish nor provide assistance to any tribunal that allows for capital punishment.

Each transitional justice programme is unique and implemented in a specific societal context, often marked by broken institutions, exhausted resources, diminished security, and a distressed and divided population. The careful consideration of the particular transitional justice needs of a country may include assessing factors such as the root causes of the underlying conflict, involving related violations of all rights, including civil, political, economic, social and cultural rights, the identification of patterns of discrimination and vulnerable groups, such as minorities, women, and children, and the condition of the country’s justice and security sectors. To enhance the sustainability and relevance of transitional justice processes, these should be carried out, where feasible, by local and national actors. In this regard, international assistance has to concentrate on development of national capacity to initiate and lead the process. Disarmament, demobilization, and reintegration (DDR) initiatives should be coordinated with transitional justice processes and mechanisms in a positively reinforcing manner.

In line with the Charter, the UN supports accountability, justice and reconciliation at all times. The question for the UN is never whether to pursue these but rather when and how. The nature and timing of such measures should be framed first of all in the context of international legal obligations and taking due account of the national context and the views of the national stakeholders, particularly victims. In situations in which national conditions do not allow for or limit effectiveness of transitional justice measures, the UN supports activities that encourage and lay foundation for effective mechanisms and processes.

Transitional justice programmes can involve truth-seeking processes that map patterns of past violence, and unearth the causes and consequences of such destructive events; prosecution initiatives that ensure a fair trial of those accused of committing crimes, including serious violations of international humanitarian law and crimes involving human rights violations; reparations programmes that provide a range of material and symbolic benefits to victims; and institutional reform that includes vetting the public service to remove from office those public employees personally responsible for gross violations of human rights. National consultations are a critical element as successful transitional justice programmes necessitate meaningful public participation, particularly of victims. These efforts are linked to and should be coordinated with broader assistance aimed at strengthening the overall rule of law in the country.

The UN promotes the compliance of transitional justice processes and mechanisms with international norms and standards, including those related to marginalized groups, such as women and children. It further encourages a comprehensive approach integrating an appropriate combination of transitional justice processes and mechanisms in national strategies. UN efforts seek to comprehensively address the root causes of conflicts and the related violations of all rights in an integrated and interdependent manner, so as to achieve the broader objectives of societal transformation and prevention of further conflict.

The UN provides support to transitional justice processes and mechanisms that involves developing standards and best practices, assisting in the design and implementation of transitional justice mechanisms, providing technical, material and financial support, and ensuring that human rights and transitional justice considerations are reflected in peace agreements.

In relation to Reparation

Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms.

Transitional justice is not a ‘special’ kind of justice, but an approach to achieving justice in times of transition from conflict and/or state repression. By trying to achieve accountability and redressing victims, transitional justice provides recognition of the rights of victims, promotes civic trust and strengthens the democratic rule of law.

States have a legal duty to acknowledge and address widespread or systematic human rights violations, in cases where the state caused the violations or did not seriously try to prevent them.

Any country which attempts to establish accountability for past abuses of human rights during the process of democratization faces political, judicial, and ethical problems. With regard to politics, the question of which transitional justice measures are appropriate, functional, and feasible has to be decided for every individual case. A judicial approach has to decide which judicial standards to apply and how to justify prosecution. Finally, the ethical dilemmas of dealing with historical injustices have to be understood. There are no ready-made concepts to define guilt and justice.

In many cases it is even difficult to tell the victims from the perpetrators. This study examines the different strategies subsumed under the term ‘transitional justice’ used by emerging democracies to deal with a legacy of human rights abuses. It explores the problems and challenges posed by different mechanisms of reconciliation and societal reintegration. While existing analyses of the contribution that transitional justice measures make to the process of social re-integration stress the importance of consensus among citizens and social groups for the emergence of trust and solidarity, this study suggests also thinking about how conflicts over competing ‘truths’ can help to build social capital and reconciliation. Noting a global diffusion of international legal norms, which means at least formal universal acceptance of basic rights and judicial procedures, it is argued that international justice cannot be a substitute for transitional justice measures taken by the domestic regime itself.

Reparations initiatives seek to address the harms caused by these violations. They can take the form of compensating for the losses suffered, which helps overcome some of the consequences of abuse. They can also be future oriented—providing rehabilitation and a better life to victims—and help to change the underlying causes of abuse.

Reparations publicly affirm that victims are rights-holders entitled to redress.

Linking reparations to other forms of recognition, justice and guarantees of non repetition—as recommended by the United Nations Basic Principles on the Right to a Remedy and Reparation—can also contribute to their effectiveness.

Author: Anonym