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Transitional justice: What is it & where is it heading? – Pablo de Greiff

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Image: Pablo de Greiff (UN photo).

First, there are plenty of accomplishments to celebrate in the field of transitional justice, a term, which as on previous occasions, I will use to refer to the implementation of truth, justice, reparation and guarantees of non-recurrence after serious violations of human rights and gross violations of international humanitarian law.   The first thing to celebrate is that in a fairly short period of time, a normative framework has developed defining State obligations regarding the four pillars mentioned.  Transitional justice has become in a thirty year period, one of the policies that countries are expected to implement in the aftermath of violations.  This is in itself an accomplishment.

Criminal justice alone would not be enough

Second, a great contribution transitional justice has made consists, precisely, in the unpacking of the notion of justice into constituent and mutually reinforcing elements, truth, criminal prosecutions, reparations, and guarantees of non-recurrence, in recognition of the fact that criminal justice alone would not be enough to satisfy the justice claims of victims.

Third, and this is worth emphasizing, countries in all regions have by now accumulated valuable experiences in the implementation of the relevant measures.  Some regions started before others, and there are certainly interesting regional variations, but there is no region of the world which has not experimented with ways of implementing the corresponding policies.  The variety of those experiences, and the lessons that can be derived from them, I believe, deserve much more recognition and study than they have received.

Victims are rights-holders

One of the things that deserve highlighting is that this is a field in which there have been significant advances.  Some of them are cross-cutting, they pertain to the four pillars.  These include, the various ways in which the four measures have contributed to making victims ‘visible,’ to acquire a place in the public sphere which they lacked before.  This is an important dimension of the process of taking seriously the idea that victims are rights-holders, but also, of successful processes of social integration.

Gender sensitivity and inclusion

Another cross-cutting advance refers to gender sensitivity and inclusion.  While there is still much more work that needs to be done especially at the level of implementation, there is no question that much has been learned about how to make truth, justice, reparations, and guarantees of non-recurrence better at promoting the rights, and serving the needs and interests of women.  The list of gender-based crimes that are prosecutable has increased, truth commissions, starting with the Peruvian Truth and Reconciliation Commission have tended to include a specialized gender unit or to adopt other measures to make sure that gender considerations are streamlined in their work, and reparations programs have become increasingly gender sensitive, as demonstrated by some of the measures adopted by Morocco’s IER.

Finally, great progress has been achieved in fact-finding and documentation, progress that benefits all transitional justice measures.  Professional competencies in forensics, for example, as well as in the management of documents, have increased significantly and have become much more available.

Along with these cross-cutting advances, there has been progress in each of the pillars of the mandate.  Transitional justice has made important contributions in the domain of prosecutions, by offering different ways of coping with amnesties.  Various arguments to nullify amnesty laws either on constitutional grounds or in virtue of their incompatibility with international obligations have been developed.  Short of nullification, various approaches have been developed in order to mitigate the worst effects of such laws.  This includes arguments concerning the proper implementation of amnesty laws, which can provide immunity from punishments but not necessarily from investigation; the exclusion of ‘continuous crimes’ from the ambit of amnesty laws.  Similarly, different legal techniques have been developed in order to overcome prescription and retroactivity issues.

Important lessons have been learned in transitional justice also about the articulation of prioritization and prosecutorial strategies that would allow for the more effective and reasonable deployment of often scarce investigatory and prosecutorial resources. 

The right to truth

In the domain of truth-telling, one should start by mentioning the contributions transitional justice has made to the entrenchment of the right to truth.  As important as this has been, however, the contribution to the operationalization of this right through the establishment of truth commissions is a signal advance in the field.  Other mechanisms of truth-finding and telling also deserve to be mentioned, including international commissions of inquiry, the preservation and access to archives, including those of the different Eastern European Secret Services, and the crucial work done by historians and other researchers in order to demystify past abuses in Germany and other countries.

Regarding reparations, similarly, transitional justice has contributed both to the entrenchment of the right, and also to its operationalization, largely through the implementation of large-scale administrative programs capable of dealing efficiently with the claims of thousands, tens of thousands of victims.  Important lessons have been learned over the last thirty years, including from very successful programs such as Chile’s among other things about the importance of ‘complexity’ in the design of programs, that is, of providing a range of benefits that mutually complement one another.

The  challenges

If it is true that transitional justice can claim to have made important contributions to the victims and to the countries which have implemented the policy earnestly, that is not to say that it is a policy that faces no challenges.  The Global Study also pays attention to these.  As all other human rights and justice related areas, transitional justice work is hampered by three tendencies that ought to be laid to rest, first, the persistent selectivity in the way in which universal legal obligations are implemented, second, the tendency to ‘securitize’ certain issues, and to determine that security concerns under all circumstances trump others, including human rights, and third, the continuing tendency to close civil spaces.  It is in the power of Member States to shed these tendencies, and this alone would make a contribution to the global search for justice.

In addition to these ‘external challenges’ as it were, there are some challenges that are internal to the field, but which threaten its success.  Here I will mention just a few, although I list more in the Study: first the field has not been exempt from a tendency to expand the mandate of its measures without little analysis of whether they can bear the additional weight.  Much more functional analysis in order to make sure that measures are designed in a way that is fit to purpose is necessary.

Context sensitive application

Second, despite the claims that transitional justice is applied in a context sensitive way, my sense is that there is room for much more sensitivity to context, and in particular to the difference between post-authoritarian and post-conflict settings.  This point is important enough to warrant more detailed treatment, which is what I do in my thematic report for this year, to which I will come shortly.

Third, there is in the field a lot of what some economists call ‘isomorphic mimicry,’ the tendency to replicate institutional forms regardless not just of context, but of the ends sought.  It is not obvious, for example, that in all countries that have established a Truth Commission this particular instrument was the best means of satisfying the right to truth of their victims and their societies.

Finally, in this context, I will mention the tendency of the field to overemphasize technocratic responses, to reduce transitional justice to a question of clever institutional engineering, not paying enough attention to other dimensions of the field, including cultural interventions and initiatives that focus on changes in individual dispositions.

So, while the accomplishments of the field deserve to be celebrated and warrant continued commitment to the field, no one should be complacent, for as we know, there is no such thing as a ‘universal policy tool.’

Allow me in the brief time that I have remaining to present briefly the main lines of my thematic report.  As I mentioned previously, this one concentrates on the implementation of transitional justice measures in weakly institutionalized post-conflict settings.  The report starts with a factual, historical observation: what we now call ‘transitional justice’ took shape in the Southern Cone countries of Latin America, traveled to Central and Eastern European countries, then to South Africa, and afterwards, the model disseminated very rapidly to all sorts of countries.  Now, despite all the differences between the countries just mentioned, they shared some features which help to explain why the model of transitional justice took the shape it did: these were highly institutionalized countries, both horizontally (in terms of the coverage of institutions) as well as vertically (in terms of the range of topics already regulated by means of law).

Besides sharing a high degree of institutionalization, the States in which the paradigm of transitional justice took shape gravitated towards the model with its four pillars also because they were trying to redress violations that were of a kind, namely, those characteristic of the abusive exercise of state power.  In other words, not surprisingly, the capacities and characteristics of state institutions correlated with the violations that they unleashed.

TJ in  post-conflict states

Transitional justice today, however, is implemented in contexts that are very different, specifically, the weakly institutionalized post-conflict settings.  First, this setting is usually afflicted by much greater security and development deficits.  But going back to the two factors just mentioned, most post-conflict states are left with significantly weaker institutions, and, the type of violations they are trying to redress are also not just greater in terms of magnitude, but also of a broader range, and the responsibility of a larger number of agents of violence.  Whereas the State was primarily responsible for the overwhelming majority of violations in the post-authoritarian cases, in the post-conflict settings there is a plethora of agents of violence.   

In the latter settings, not surprisingly, transitional justice has found it much more challenging to obtain the results it was used to.  (I hasten to add that this is a problem not just for transitional justice, but of course this is what I am concerned with here).

Now, since I do not want to suggest that justice is a luxury that only the affluent can afford, the question for me is how to increase the effectiveness of transitional justice measures in those settings where some of the preconditions that gave shape to the paradigm are not in place.

 Transitional justice agenda with institution-building

In the report I argue that in this kind of settings it is imperative to link the transitional justice agenda with institution-building and institution-strengthening processes.  In previous reports on guarantees of non-recurrence, I allude to some of the relevant measures.

However, we all know that institution building is time-consuming, in fact, a process longer than we are usually willing to contemplate.  So we need in addition, to develop some more immediate responses as well.  Here is one place where the warning against mimicry can become very useful.  Copying institutional forms, rather than looking for the most effective means under the circumstances to achieve specific ends, is unlikely to produce good results.  In weakly institutionalized post-conflict settings it may be that victim participation and local resources are at a premium. 

It will also very likely be the case that forms of prioritization will need to be adopted: that if everything by way of redress and prevention cannot be done at the same time, there are ways of rationalizing efforts in a way that they build over time the necessary capacities to accomplish these goals.  Thus, attending the needs of the most vulnerable populations, paying particular attention to the disappeared, thinking about victims assistance programs even if full-fledged reparations cannot be distributed, all of this signals attentiveness to the rights of victims, and offers the possibility of setting forth dynamic processes of institution building that will eventually enable a fuller type of redress.  Finally, in cases in which institutions are recognizably weak it is particularly important –although this is so everywhere—to strengthen civil society, for there is no successful transitional justice case that has not depended heavily on contributions from civil society.

Before I conclude, I am delighted to announce that the Government of the Democratic Socialist Republic of Sri Lanka has invited me for an official visit to the country from 10 to 23 October 2017.  I hope that other countries to which I have requested visits, including Cambodia, Guatemala, Indonesia, Nepal, to mention some, would follow suit.

Thank you very much for your attention.
(The Statement of The Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence
Mr. Pablo de Greiff  at the Human Rights Council 36th Session 11 September 2017.)

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