1. No category

WHAT IS TRANSITIONAL JUSTICE?
The term ‘Transitional Justice’ is often used to describe the political choices made by
States that are undergoing a governance transition, which they adopt in order to deal with
human rights violations and/or past abuses and atrocities committed by former
governments and non-state actors. In addition to being a response to widespread or
systemic violations of the past, it also seeks recognition for victims and to promote
possibilities for peace, reconciliation and democracy1 and the rule of law usually in a
post-conflict environment.
It includes among its mechanisms processes that are judicial, quasi-judicial and nonjudicial mechanisms. In the UN Secretary General’s report titles The Rule of Law and
Transitional Justice in Conflict and Post Conflict Societies; Report of the Secretary
General 23 August 20042 he lays out Transitional justice to include:
(a)
(b)
(c)
(d)
(e)
(f)
Domestic, hybrid and international prosecutions;
Truth telling initiatives to determine and document violations that
have occurred
Promoting reconciliation within divided communities;
Reparations to victims including collective and symbolic
reparations;
Constructing legacy and monuments for education of future
generations
Institutional reform
It is widely accepted that the nature of the transition will determine the choice of
mechanism adopted.
Guiding Fundamental Principals of all Transitional Justice Mechanisms
Transitional Justice aims to ensure the proper enforcement of fundamental international
law norms throughout whatever process a State adopted. It is generally a fusion of
International Humanitarian Law, International Human Rights Law and the principles
of due process in criminal prosecutions.
1
2
•
The Truth – the truth of the past must be known, officially proclaimed,
acknowledged and publicly exposed. This truth is determined by establishing
a record of human rights abuses.
•
Justice - includes
justice/social justice.
restorative
justice/criminal
justice/redistributive
See definition by International Centre for Transitional Justice, http://www.ictj.org/en/tj
S/2004/616 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf
1
•
•
Meaningful Democratic Reform - entrenchment of the rule of law within
society and building a society with institutions that ensure that the kinds of
violations being dealt with will never happen again.
Building Lasting Peace - making sure that the country does not return to
violence.
•
The Policy – this must represent the will of the people and should not violate
international law related to human rights. The policy must include reparative
measures. The policy must ensure that a framework for ‘preventative’
measures is put in place.
•
Balance of Power - how does the new state or those involved in the new state
hold accountable those who perpetrated the most egregious violations
particularly if they are part of the new transitional structure and still hold
power? Who does the new state hold accountable? What crimes should be
punished?
Are there a set of norms which can be applied in most circumstances?
Context and location and material conditions will determine what relevant
mechanism or intervention is adopted in any given location where transitional
justice mechanisms are deployed.
TRANSITIONAL JUSTICE MECHANISMS
1. TRUTH COMMISSIONS
•
Argentina in 1983, Chile in 1990, and the most popular, South Africa in 1995.
Truth Commissions have become a symbol of transitional justice, appearing in
transitional societies in Latin America, Africa, Asia and Eastern Europe.
•
Truth Commissions benefit transitional societies as they are able to establish
the facts about past human rights violations, foster accountability, preserve
evidence, identify perpetrators and make recommendations for reparations and
institutional reforms.
•
Capable of addressing the needs of victims - includes healing and
rehabilitation.
•
The policy objective of the Truth Commission is to:
o Building national reconciliation
o Establish the truth (eliminate lies and popular myths)
2
o Respond to the needs of victims
Allows victims to tell their story- Cathartic process opening the
space and opportunity for healing
Convert knowledge into an acknowledgment by state or official
body
Opportunity for healing and integration
Reparations
o Establish accountability
Recording of violation
Establish who is responsible
Naming
•
Principles which underpin the establishment of a Truth and Justice
Commission.
o Credibility and legitimacy of the process leading to the establishment
of a Truth and Justice Commission
o Active participation of civil society in all of the processes
o Adherence to human rights principles
o Commitment to Accountability
o Ensuring that impunity is ended?
•
The most well publicised Truth Commission was that that took place in South
Africa, however, their use is particularly favoured as an alternative to
prosecutions providing a more flexible and development based approach. In
the case of Sierra Leone, the Truth Commission existed simultaneously with
the hybrid Special Court and gave rise to tensions and differences which were
routed in the fact there were different objectives for each mechanism.
South Africa
o There was a negotiated settlement to hostilities between the ANC and the
National Party and a new constitution and legislation which
institutionalised the concept of national unity as a recognised State
objective.3
o This TRC is often hailed as the most successful of all TRCs. There was,
therefore, a trade off and a de facto power share i.e. an Amnesty deal - for
peace and democracy.
3
See South Africa Office of The President No. 1111 26 July 1995, No. 34 of 1995: Promotion of National
Unity and Reconciliation Act, 1995, http://www.fas.org/irp/world/rsa/act95_034.htm
3
o TRC was seen as a vehicle for achieving accountability, national
reconciliation. There three sections to the South African model4.
-
The Human Rights Violation Committee, which took testimony
from victims and took submissions from political parties.
-
The Rehabilitation and Reparation Committee, which adopted
a development centred approach, capacity development
promoting healing and reconciliation. Engaged in the giving of
grants and instituting legal and administrative mechanisms.
-
The Amnesty Committee granted amnesty and freedom from
prosecution for participation in political acts. Public hearings,
Amnesty premised on full disclosure and proof that act
committed was political, Victims had the right to be present.
o Major innovation - public hearings.
-
Against 48 years of apartheid.
National Party supported apartheid policies with legislation.
Previously, all liberation movements banned by 1960.
Post 1980s-set up death squads, torture and extra-judicial
killings were the order of the day
Received 1200 amnesty applications - granted 700 amnesties
Successfully dealt with lies by apartheid government.
o Questionable whether the truth for amnesty deal really worked:
Plus Points
-
Highlighted institutional weaknesses in state bodies including
armed forces
Good reparation policy
Well thought out report and recommendations
Negative Points
-
4
Need to deal with diverse political groupings
Struggled to ensure that perpetrators participated in the process
Amnesty applications from foot soldiers
Politicians, military leaders and leadership escaped any
accountability
Arguably beneficiaries of apartheid escaped any responsibility
Failure to deal with political economy of apartheid
See www.doj.gov.za/trc .
4
-
Delay by government in implementation of reparations and
recommendations
Did it consider sufficiently the impact of the structural violence
of policies of apartheid?
Re conciliation at the expense of justice and redress
Repercussions in that society
Sierra Leone
Introduction
o The Truth Commission and Hybrid Tribunal The Special Court for Sierra
Leone operated simultaneously.
o 11 Years of brutal civil war in which amputations, abductions, forced
recruitment of child soldiers were the order of the day. RUF and AFRC
were the main protagonists. CDF - hunter gatherer forces.
o Two Transitional Justice mechanisms have been set up: the Special Court
and the Truth and Reconciliation Commission (TRC). The Special Court
is meant to adjudicate the cases of those accused of bearing greatest
responsibility for war crimes and crimes against humanity. It was the core
institutional means of addressing impunity as it was accorded supremacy
over the TRC by its statute.5
Truth and Reconciliation Commission
o The 1999 Lomé Peace Agreement provides for the establishment of a
Truth and Reconciliation Commission, which was conceived by
nongovernmental organizations attending the peace talks as a
counterbalance to the amnesty granted to all parties. Under the peace
agreement, the TRC was to be established to “address impunity, break the
cycle of violence, provide a forum for both the victims and perpetrators of
human rights violations to tell their story, [and] get a clear picture of the
past in order to facilitate genuine healing and reconciliation”.
o The TRC's mandate is “to create an impartial historical record of
violations and abuses of human rights and international humanitarian law
related to the armed conflict in Sierra Leone, from the beginning of the
armed conflict in 1991 to the signing of the Lomé Peace Agreement; to
5
See http://www.crisisgroup.org/home/index.cfm?id=1801&l=1 and
http://www.trcsierraleone.org/drwebsite/publish/index.shtml
5
address impunity; to respond to the needs of the victims; to promote
healing and reconciliation and to prevent a repetition of the violations and
abuses suffered”. The commission is called upon to give special attention
to the subject of sexual abuse and may also implement “special procedures
to address the needs of such particular victims as children or those who
have suffered sexual abuse”. Any committees formed by the commission
to assist it in the performance of its functions should also take into account
gender representation.
o The commission should have been established within ninety days after the
signing of the peace agreement, but the Sierra Leonean Parliament did not
pass the Truth and Reconciliation Act establishing the TRC until February
2000. Its establishment was further delayed due to the renewed outbreak
of fighting in May 2000, and lack of political will of both the government
and the international community. As the selection process for the
commissioners took longer than planned, the government also decided to
delay the commencement of the TRC until after the May 2002 elections to
ensure that the TRC would not be politicized by the elections. The
activities of the TRC may well be further hampered by funding shortfalls.
Only U.S. $1.5 million had been pledged as of June 2002, partially
because the Office of the U.N. High Commissioner for Human Rights
(OHCHR) did not launch the funding appeal until January 25, 2002. Its
total planned budget was reduced from almost U.S. $10 million to U.S.
$6,276,440 in August 2002 and was dogged by funding
o Best report of TRC ever with well thought out recommendations.
o Widely accepted by all-both internationally and nationally.
o Delay in establishing TRC led to dual institutions functioning side by side.
o Special Court vs. TRC:
6
Claim that peace agreement violated - led to Security Council
resolution.
Two institutions caused confusion.6
More funds for court.
Ct American backed – ‘spaceship approach’?
TRC struggled with confusion in the minds of Sierra Leoneans
Initial difficulty in getting perpetrators to come forward
Battle between institutions for access to indictees
Importance of public participation in both decision making leading
up to TRC and the process establishing the TRC
Institutional reform
See http://www.sc-sl.org/
6
Liberia
o The TRC was agreed upon in the August 2003 Comprehensive Peace
Agreement in Accra and created by the TRC Act of 2005. The TRC was
established to “promote national peace, security, unity and reconciliation,”
and at the same time make it possible to hold perpetrators accountable for
gross human rights violations and violations of international humanitarian
law that occurred in Liberia between January 1979 and October 2003.
Their website set out the objectives of the Truth Commission as reconcile
and forgive, assist and aid and speak the truth. 7
o Major problems
o Fighting within the commission
o Report is being pilloried
o Draft report handed over
o Commissioners currently in Accra editing the report and rumours suggest
that they are adding new names to the report
o Heavily criticized for lustration suggestion
Peru
o Comprehensive report on women
o Provided an excellent reparations programme
o Peru set up a structure to deal with reparations
o Office of Special Prosecutor set up to deal with Human Rights, Forced
Disappearances, Extra-judicial Executions and Exhumations in 2003
o Symbolic ceremonies held to recognize the victims of the conflict
o Report was seen as establishing a new normative and moral order in Peru
o President apologized publicly to country
7
See website https://www.trcofliberia.org/news-1/press-releases/liberia2019s-trc-presents-final-report
7
Kenya
o Has established a Truth, Justice and Reconciliation Commission in 2009
even amidst the backdrop of the post-2007 election violence, to look into
all past abuses since Kenya’s independence in 1963, and is an example of
the political deals which bring the political elites back in power.
o The report of the Commission to Investigate Post Election Violence
(CIPEV), known in Kenya as the Waki Report proposes the establishment
of national/hybrid Tribunal for the prosecution of violence perpetrators
which will probably operate at the same time as the TJRC. The report also
envisages the prosecution of the perpetrators by the ICC should Kenya fail
to set up a national/hybrid tribunal.8
o Kenyans have since 2002 discussed the notion of a Truth Commissions to
address the country’s numerous past violations, including illegal land
grabbing by powerful politicians since 1963, political assassinations,
ethnic violence, torture by the Moi regime, marginalization of pastoral
communities etc
o No shortage of Commissions of Inquiry in Kenya but no follow up has
ever been made on any of the recommendations in the reports that
followed.
o Security Sector reform is particularly urgent in Kenya as the security
sector has been intimately involved with the country’s human rights
problems
Goals for Kenya: to end the culture of impunity and endemic corruption,
as well as building social cohesion or national unity and restoring the faith
of citizens in the institutions of state.
Similarities with Sierra Leone and Liberia - governance, corruption,
security sector problems and impunity
Differences –
i) Kenya is a much more sophisticated country with a strong civil society and a
strong legal and human rights sector
ii) In Sierra Leone, Reconciliation was privileged above Truth. In Kenya, Truth will
be preferred over Reconciliation. Indeed the one cannot be achieved without
the other.
iii) Amnesty is provided for in the Kenyan TJRC Act
8
At the time of writing this paper, the chief Prosecutor of the ICC, Ocampo, has already brought an
application before the ICC’s Pre-Trial Chamber for authority to commence investigations in Kenya after
Kenya’s parliament repeatedly failed to enact a national/hybrid court.
8
HYBRID COURTS
•
Hybrid and UN Tribunals aspire to the highest standards of independence and
impartiality and thus seek to apply the norms of due process and international
human rights. Every one of these mediums have incorporated into their rules
of procedure and their statute of creation all of the core principles which
relating to international fair trial rights. Examination of their judicial
determination shows a strong adherence to those principles as enunciated in
all major international human rights treaties as well as an adherence to
international humanitarian law.
•
Mixed Composition and Jurisdiction.
•
Combined national and international aspects.
•
Success of the hybrid system will ultimately be evaluated by its impact legacy
on the domestic justice system of post-conflict states.9
•
Hybrid courts are generally varied in style, often dependent upon the national
context or, otherwise, there is a danger that they operate too remotely from the
national systems.
•
Justification for the hybrid model:
o Where there is a fear of bias; or
o Lack of independence in the existing national system; and/or
o Lack of capacity to cope with complex large-scale prosecutions.
•
Evaluation of the success requires an assessment of the legacy of each
particular model:
o Have they made a contribution to the Right to justice?
o Have the hybrid modules provided an effective remedy which contributes
towards ending a culture of impunity?
Kosovo10
o United Nations Interim Administration Mission in Kosovo (UNMIK).
See OHCHR Rule of Law Tools for post-conflict states:
http://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf
9
10
See http://www.unmikonline.org/index.html
9
o Established on 10th June 1999 in accordance with UN Security Council
Resolution 1244.
o UNMIK has moved back from an executive role to one of monitoring and
providing support to local institutions.
Timor-Leste11
o United Nations Transitional Administration in East Timor (UTAET)
o Established on 25th October 1999 in accordance with UN Security Council
Resolution 1272.
Sierra Leone
o Created by international treaty at the behest of the Security Council, the
Special Court was not created through Chapter 7 of the United Nations
Charter. Following the hostage taking of over 500 U.N. peacekeepers and
the renewed outbreak of fighting between the RUF and government forces
in May 2000, the government of Sierra Leone requested that the U.N.
assist in establishing a court “to try and bring to credible justice those
members of the Revolutionary United Front (RUF) and their accomplices
responsible for committing crimes against the people of Sierra Leone and
for the taking of U.N. peacekeepers as hostages”. The government
expressly mentioned that the RUF, in reneging on their obligations under
the Lomé Peace Agreement, continued to subject many women and
children to human rights abuses, including sexual slavery. On August 14,
2000, the U.N. Security Council passed Resolution 1315 requesting the
secretary-general to negotiate with the Sierra Leonean government an
agreement for the establishment of a special court.
o Enabling legislation enacted in March 2002 contains a provision, criticized
by many nongovernmental organizations, that establishes the primacy of
the SCSL, apparently including over the TRC.12 Article 21 (2) of the See
Special Court (ratification) Act 2002 provides that:
“Notwithstanding any other law, every natural person,
corporation, or other body created by or under Sierra Leone law
shall comply with any direction specified in an order of the Special
Court”.
11
12
See http://www.un.org/en/peacekeeping/missions/past/etimor/etimor.htm
See Special Court Agreement 2002 (ratification) Act 2002 (March 7, 2002).
10
o Other crimes that the court has the jurisdiction to prosecute are provided
under Article 2 to Article 6. Under Article 2, which defines the crimes
against humanity that the SCSL has the power to prosecute, the following
crimes of sexual violence are specified: "rape, sexual slavery, enforced
prostitution, forced pregnancy and any other form of sexual violence."
Rape, enforced prostitution and any form of indecent assault can also be
prosecuted as violations of Common Article 3 to the Geneva Conventions
and Additional Protocol II as stated under Article 3 of the statute. Under
Article 4, specific serious violations of international humanitarian law are
enumerated, including intentionally attacking civilians and the recruitment
of children under fifteen years old into the armed forces. With the
unanimous adoption by the U.N. General Assembly of the Optional
Protocol to the Convention on the Rights of the Child (CRC) in May 2000,
however, the minimum age for any conscription or forced recruitment has
been raised to eighteen. Under Article 5, gender-based crimes can also be
prosecuted under domestic law provisions. However, as these provisions
do not meet international standards in terms of definition of crimes and
punishment, they should not be applied.
o In accordance with the U.N.'s statement that it did not recognize the Lomé
amnesty as it purported to apply to genocide, crimes against humanity,
war crimes and other serious violations of international humanitarian law,
Article 10 of the court's statute states:
An amnesty granted to any person falling within the jurisdiction of the
Special Court in respect of the crimes referred to in articles 2 to 4 of the
present Statute shall not be a bar to prosecution.
This means that those bearing the greatest responsibility for crimes against
humanity (Article 2); violations of Article 3 common to the Geneva
Conventions and Additional Protocol II (Article 3); and other serious
violations of international humanitarian law (Article 4) can be prosecuted
for their crimes.
The thorny issues included:
Whether an amnesty granted during peace negotiations applies to
those charged by an international war crimes tribunal with
violations of international humanitarian law;
Whether an international war crimes tribunal can be created
outside of Chapter Seven;
When forcible recruitment of child soldiers crystallized as a crime
under international humanitarian law; and
11
Whether a head of state is immune from prosecution before an
international tribunal, among other key issues of international
criminal justice.
o Article 15 (4) of the statute of the SCSL. A Woman's Task Force for the
Special Court and TRC was established with the support of the
International Human Rights Law Group to advocate that gender-based
crimes be properly investigated by both bodies and - in terms of the
Special Court - prosecuted. The Women's Task Force has also advocated
for the appointments of staff who are experienced in and sensitive to cases
of sexual violence, as well as for gender balance i.e. women should be
well represented in positions of authority as well as in positions of support
(statement takers, investigators, counselors and interpreters, etc.).
o The Special Court indicted a total of 11 persons, the most high profile of
which was Charles Taylor, who was the President of the neighbouring
Liberia at the time of indictment. Two of the rebel leaders died whilst in
the custody of the Special Court (Forday Sankoh & Hinga Norman).
o Because Charles Taylor was a head of state in Liberia at the time he was
indicted, there was concern at the time that the special court was not
created under Chapter VII.
However, Taylor did not pursue a
jurisdictional challenge at the ICJ and the jurisdictional challenge made to
his indictment failed.
o The Special Court has created a useful precedent in the area of sexual
violence and exploitation i.e. forced marriages and sexual slavery. Also
has played a leading role in developing jurisprudence in respect of child
soldiers – conscription or enlistment and enslavement.
o The Management Committee of the Special Court for Sierra Leone
originally composed of Canada, Lesotho, the Netherlands, Nigeria, Sierra
Leone, UK, USA and the UN Office of Legal Affairs.
o The management committee were to give advice and policy direction on
all non-judicial aspects.
o Specific tensions arose over a number of issues such as:
International/local personnel balance.
Relationship with the domestic legal system.
Capacity building and legitimacy.
12
o Using foreign personnel to bring a sense of impartiality and to ensure that
resources were not sucked out of the existing judicial structures.
o Importance of simultaneous investment to take place both in the hybrid
courts and the domestic judicial systems.
Kenya
•
The “Special Tribunal” proposed by the Waki Commission was to deal
with the 2007-2008 perpetrators of post-election violence.
•
This Tribunal would in essence also be a hybrid tribunal composed of both
local and international judges and staff
•
The Tribunal is to have the mandate to investigate, prosecute and adjudge
persons bearing the greatest responsibility for crimes, specifically crimes
against humanity, in relation to the general elections in Kenya.
•
The Waki Report gave a strict timeline for setting up the tribunal, and
failing this, required the mediator Kofi Annan, to pass the names of the
chief suspects to the ICC.
•
On 12th February 2009 the Kenyan Parliament voted against a
constitutional amendment bill establishing the proposed tribunal. Kofi
Annan extended this deadline.
•
On 16th July 2009 the ICC was given a sealed list of names of those
implicated in the violence
•
The ICC prosecutor, Luis Moreno-Ocampo, has taken a three-stage
approach to the post-election violence:
o For the ICC to prosecute those most responsible
o National accountability proceedings as defined by the Kenyan
Parliament (e.g. Special Tribunal for other perpetrators)
o Other reforms/mechanisms such as Justice, Truth and
Reconciliation commissions to elucidate true history of the events
and suggest mechanisms to prevent such crimes in the future
•
The aim is, in his words, “Kenya will be a world example on managing
violence.”
UN TRIBUNALS
13
International Criminal Tribunal for the Former Yugoslavia (ICTY)13
o Established by the UN Security Council Resolution14 to prosecute serious
crimes committed during the wars in the former Yugoslavia, and to try
their alleged perpetrators. The tribunal is an ad-hoc court which is located
in The Hague.
o It has jurisdiction over four clusters of crime committed on the territory of
the former Yugoslavia since 1991: grave breaches of the 1949 Geneva
Conventions, violations of the laws or customs of war, genocide, and
crime against humanity. It can try only individuals, not organizations or
governments. The maximum sentence it can impose is life imprisonment.
Various countries have signed agreements with the UN to carry out
custodial sentences. The last indictment was issued 15 March 2004. The
Tribunal aims to complete all trials by the end of 2009 and all appeals by
2010.
o In 2004, the ICTY made a list of its accomplishments.15 These included
spearheading the shift from impunity to accountability, pointing out that
until very recently it was the only court judging crimes in the former
Yugoslavia. It has also ‘established facts’ and brought justice to thousands
of victims and giving them a voice.
o The accomplishment in international law describing the fleshing out of
several international criminal law concepts which had not been ruled on
since the Nuremberg Trials.
o Has indicted 161 individuals since the Tadic indictment on 8th Novemebr
1994, and completed proceedings in regard to 100 of them.
o Slobodan Milošević was the first sitting head of state to be indicted for
war crimes. Other ‘high level’ indictees of ICTY included Milan Babić,
President of the Republika Srpska Krajina; Ramush Haradinaj, former
Prime Minister of Kosovo; Radovan Karadžić, former President of the
Republika Srpska; Ratko Mladić among others.
International Criminal Tribunal for Rwanda16
o Set up by UN Security Council Resolution in order to judge people
responsible for the Rwandan genocide and other serious violations of the
ICTY Website http://www.icty.org/sid/135
U.N. Doc. S/RES/827 (1993).
15 'The Tribunal's Accomplishments in Justice and Law'
http://www.icty.org/x/file/Outreach/view_from_hague/jit_accomplishments_en.pdf
16 ICTR website http://www.ictr.org/
13
14
14
international law in Rwanda, or by Rwandan citizens in nearby states,
between 1 January and 31 December 199417
o The tribunal has jurisdiction over genocide, crimes against humanity and
war crimes, which are defined as violations of Common Article Three and
Additional Protocol II of the Geneva Conventions (dealing with war
crimes committed during internal conflicts).
o The first trial, of Jean-Paul Akayesu, began in 1997. Jean Kambanda,
interim Prime Minister, pleaded guilty. According to the ICTR's
Completion Strategy, in accordance with Security Council Resolution
1503, all first-instance cases were to have completed trial by the end of
2008 (this date was later extended to the end of 2009) and all work is to be
completed by 2010.
o Has largely looked at the International Law on Genocide under the
Genocide Convention, and has led to some of its developments, e.g. the
Akayesu trial has established precedent that Rape is a crime of genocide.18
o The trial against “hate media” began on 23 rd October 2000 and charged
with the prosecution of the media which encouraged the genocide of 1994.
Media personalities have been tried and found guilty with genocide,
incitement to genocide, and crimes against humanity.
o No prosecutions have been brought against the founders, sponsors or
anyone related to Radio Muhabura, a media whose pro-RPF messages
were broadcast throughout the country during the 1990-1994 war.
o No prosecutions have been brought against the RPF leading to criticism of
one-sided prosecutions.
o The ICTR Symposium on the Legacy of International Criminal Courts and
Tribunals for Africa was held in Arusha, Tanzania in 2007 to look at the
ICTR’s work and its impact on future law development both
internationally and in the region.
International Criminal Court19
o Established under the Rome Statute of the International Criminal Court20
passed on 17th July 1998 and came into force on 1st July 2002 after
17
UN Security Council Resolution 955 S-RES-955(1994) on 8 November 1994
United Nations General Assembly Document 315 session 54 Fourth Annual Report of ICTR page 6 on 7
September 1999
19
ICC website http://www.icc-cpi.int/Menus/ICC
18
15
ratification by 139 States. It can only prosecute crimes committed after
that date.
o Permanent tribunal to prosecute individuals for genocide, crimes against
humanity, war crimes, and the crime of aggression (although it cannot
currently exercise jurisdiction over the crime of aggression). Seats at The
Hague but prosecutions can take place anywhere.
o Designed to complement existing national judicial systems it can exercise
its jurisdiction only when national courts are unwilling or unable to
investigate or prosecute such crimes21. Primary responsibility to
investigate and punish crimes is therefore left to individual states.
o Jurisdiction only in cases where the accused is a national of a state party,
the alleged crime took place on the territory of a state party, or a situation
is referred to the court by the United Nations Security Council22.
o Has developed the role of witnesses in the justice system through the
office of the Public Counsel for victims, and a trust fund for victims who
are legally entitled to protection measures under the statute Rules and
Regulations.
MOVING FORWARDS – Sri Lanka
•
Sri Lanka will be the next basis for transitional justice mechanisms to come into
play, and this will be a particularly complicated context for transitional justice
•
Considerations need to be given to how deeply embedded the Sri Lankan conflict
is – dating the conflict itself is a matter of perspective
•
Atrocities were widely committed on both sides
•
The Indemnity (Amendment) Act of 1988 shields all members of the government
and security forces from prosecution for abuses that occurred between 1977 and
1988.
•
Consider adopting a South African model, which addresses social reconciliation?
•
Establishing a permanent international war crimes tribunal for Sri Lanka,
referring perpetrators of the most heinous crimes to the UN.
See http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm
Rome Statute, Articles 17 and 20
22 Rome Statute, Articles 12 and 13
20
21
16
•
Alternative would be to establish a Participatory Truth Commission similar to that
of South Africa, which would allow Sri Lankans to reconsider themselves in light
of the horrors of the civil war. Sri Lanka could particularly follow the South
African TRC’s partial and conditional amnesty.
•
However it must be noted that in the past two decades there have been several
commissions of inquiry in Sri Lanka, however these became tools for political
manipulation and their recommendations for prosecution and reform remain
buried.
THE CURRENT ASSUMPTIONS UNDERPINNING THIS FIELD
•
Firstly, it is widely argued that the establishment of Transitional Justice
mechanisms is necessary in order to bring about reconciliation and national
unity in post-conflict situations. What happens though when a nation is not
undergoing a true transition and where the alleged perpetrators are still in
power?
•
A second assumption is that you cannot found a democratic state based on
human rights principles when the truths of the past have not been brought
forward. There is therefore the need to seek the ‘truth’ about past violence - of
course, the question we need to ask is ‘whose truth’ and ‘how much truth’ is
enough
•
A third assumption is that that the deterrent effect of punitive justice also
applies at the international level and domestic level - an assumption which is
used to justify the establishment of the international tribunals. There have
now been two ad hoc tribunals, one Special Court and the ICC.
Of course, for Transitional Justice practitioners, Justice goes beyond a narrow
definition of criminal justice i.e. punishing the perpetrators of crime. It is about
Justice in its broadest context seeking to acknowledge the harms inflicted on the
victims, and, crucially, to recognize what this was and its wrong. It aims to restore the
victims’ dignity and to (re)establish their position in society as full rights - bearing
citizens.
This more inclusive understanding of justice is particularly important to building
sustainable peace. As criminal prosecutions will only ever treat a limited number of
discrete cases, other truth seeking measures can help establish the truth of what
happened in the wider society. In turn, this can form the basis of a common historical
narrative, and contribute to reconciliation.
Ocampo acknowledged this complexity in his statement where he spoke about an ICC
option for those who bear the greatest responsibility, a national body to deal with the
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next layer of perpetrators and truth commission to explore the root causes of the
conflict.
Different Transitional Justice mechanisms have so far helped in:
•
Transition from conflict to peace - Negotiated settlements by way of peace
agreements including democratic elections (South Africa)
•
Assisted transitions in failed states (Sierra Leone, Liberia)
•
Restoring civilian rule from Military Dictatorships (Latin America-Chile,
Argentina, Peru etc)
•
Transition from authoritarian regimes to democratic government by way of
peace agreements (Nepal)
Overall Goals of any Transitional Justice Process:
i)
ii)
To prevent the recurrence of such abuses and
To repair the damage caused to the extent that is possible
Steps that must be taken in Transitional Justice include:
Peace process and the laying down of arms as a first step in the process.
Rebuilding of institutions that are conducive to a stable and fair political
system. These reforms must extend to all governance and judicial
structures in the country.
The procurement of the economic resources needed to achieve those ends,
particularly when the transition period is marked fragility and when a
measure of economic stability is necessary and instrumental for political
stability
Restoration of civil trust in institutions of government –trust that the state
works for all citizens irrespective of political allegiance, race, gender or
ethnicity.
BIBLIOGRAPHY
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1. LAMIN A.R., Building Peace through Accountability in Sierra Leone – the Truth
on the Reconciliation Commission and the Special Court, Journal of Asian and
African Studies, 1 August 2003
2. TEITEL R.G, Transitional Justice, Oxford University Press, 2002
3. KRITZ N.J., Transitional Justice: How Emerging Democracies Deal with Former
Regimes, Volume II Country Studies, United States Institute for Peace, 1995
4. ROHT-ARRIAZA & ARIEZCURRENA Transitional Justice in the Twenty-First
Century: Beyond Truth versus Justice, Cambridge University Press, 2006
5. original reading list
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