15 October 2009
Ladies and Gentlemen,
I am pleased to be here and to offer my reflections on the topic of dealing with the past. I will also briefly discuss the work of OHCHR in this area.
How countries deal with the legacy of the past goes beyond the exceptional mechanisms of transitional justice. Societies need to address the underlying causes of conflicts and repressive rule. Peace agreements and constitutions offer key opportunities for addressing the root -causes of societal strife and for enshrining protections of all rights, including economic, social and cultural rights, in post-conflict and transitional situations.
As a South African and a jurist, "dealing with the past" has been a recurrent theme and imperative of my professional life. My country has confronted and has tried to heal the wounds that history inflicted on its divided people.
The International Criminal Tribunal for Rwanda, where I served as a judge and later as President, was an important step forward for the establishment of an international rule-based system. The work of the tribunal helped to restore the dignity of victims of mass atrocities. That tribunal and other international courts have given us tools of accountability that we did not have before.
These pioneering experiences in international criminal justice generated the momentum that led to the creation of a permanent body, the International Criminal Court where I had the privilege to serve as a judge for five years.
Undoubtedly, assisting societies devastated by conflict or emerging from repressive rule to deal with their past is an endeavour which requires the right "doses" of sensitivity, knowledge, and ability to deliver durable results. This task must be performed in a context marked by broken institutions, exhausted resources, diminished security, and a traumatized and divided population.
The long experience that the United Nations has acquired over the years is of great value and, indeed crucial significance, in a transitional environment in which ensuring accountability, justice and reconciliation for past abuses is a priority of the tallest order.
As the work that my Office performed in supporting transitional justice programmes in more than twenty countries shows, this assistance encompasses the development of standards and best practices, guidance in the design and implementation of transitional justice mechanisms, and—crucially—initiatives and advocacy to ensure that human rights and transitional justice considerations are reflected in peace agreements. OHCHR is dedicated to supporting societies emerging from conflict or from repressive rule. We seek to enhance options available to them to address justice during the transition period.
Allow me to take this opportunity to point out that OHCHR assists transitional justice initiatives through dedicated programmes at our headquarters and in the field, including through stand-alone OHCHR field offices and human rights components in UN peace operations.
The Current State of International Standards
Moving now to the topic of the state of international standards in the field of transitional justice, I wish to underscore that the UN Charter, together with international human rights law, international humanitarian law, international criminal law and international refugee law provide a solid normative basis to frame transitional justice initiatives. These are the pillars of modern international legality which encompass fundamental principles and underpin States’ obligations. The latter include the duty to undertake investigations and prosecutions of gross violations of human rights and serious violations of international humanitarian law which constitute crimes under international law. See E/CN.4/2005/102/Add.1, Principle 19.
International law also recognizes the right of victims to reparations, See A/Res/60/147. and their right to know the truth about violations, See E/CN.4/2005/102/Add.1, Principles 2-5. as well as guarantees of non-recurrence of violations. See E/CN.4/2005/102/Add.1, Principle 35. These international standards set the normative boundaries of UN engagement.
In the context of the former Commission on Human Rights, OHCHR supported the finalizing of two sets of principles that capture the important developments in international law and practice related to transitional justice. The Updated Set of principles on combating impunity affirms the need for a comprehensive approach towards combating impunity, including investigations and prosecutions, reparations, truth seeking, and guarantees of non-repetition of violations. E/CN.4/2005/102/Ad.1. The Basic Principles and Guidelines on the right to a remedy and reparations specify that reparations may include restitution, compensation, rehabilitation and satisfaction.A/60/147.
OHCHR has been thus supporting coherent and comprehensive approaches to transitional justice, comprising a broad range of both judicial and non-judicial processes. Our work focuses on victims and their needs. As such, national consultations with a broad range of stakeholders are critical elements of the human rights-based approach to transitional justice which regards public participation as a key component of successful programmes.
As the lead agency within the UN system in the area of transitional justice, OHCHR has elaborated the Rule of Law Tools for Post-Conflict States to develop the long-term institutional capacity of UN field presences, transitional administrations and civil society to respond to demand in this area. These tools are grounded in international human rights law and contain best practices and lessons learned from UN field operations.
OHCHR continues to explore and develop additional areas, taking into account the needs of field presences and emerging legal developments. Let me elaborate briefly on this topic.
Developments and Challenges
Peace and Justice
In the past, peace and justice were presented as mutually incompatible goals. The dilemma was thought to be between securing peace with the cooperation of perpetrators of human rights violations or addressing justice at the cost of perpetuating conflict.
In recent years, however, this perceived tension between peace and justice has been gradually dissolving. There has been a growing recognition that, when properly pursued, peace and justice can promote and sustain each other. Indeed, peace and justice are increasingly—and rightly—seen as inter-dependent and mutually reinforcing. The persisting dilemma concerns rather the extent of national mechanisms’ ability and determination to bring the alleged perpetrators of international crimes to justice. While much progress has been made in acknowledging that peace and justice go hand in hand, we cannot be complacent..
The growing acceptance of the compatibility of peace and justice is reflected in current international law and UN policy on amnesties. Amnesties are impermissible if they prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity, and gross violations of human rights. Our work in this area aims at safeguarding a space for justice both during and after peace processes.
Experience shows that the simultaneous pursuit of peace and justice is not only possible, but indispensable to make progress sustainable. Indeed, accountability has proven to be an important ingredient to combating violence. States which brought those accused of human rights violations to trial have subsequently prevented or reduced the recurrence of such violations. There are also indications that in countries where amnesties for serious crimes are allowed, a corresponding culture of immunity has emerged. This, in turn, exacerbated human rights violations.
Recent peace agreements reflect developments in international law with respect to amnesties and accountability. As a 2009 OHCHR study on human rights and transitional justice demonstrates, blanket amnesties have been less pervasive in recent years, and a growing number of agreements now contain provisions for transitional justice.
It is crucial, therefore, that mediators continue to support the inclusion of commitments to combat impunity and to uphold the protection of human rights in peace agreements. To do so effectively and persuasively, these mediators must be equipped with relevant human rights knowledge during peace negotiations. Equally important are the presence and participation of human rights experts in the negotiating process.
Social and Economic Justice for Countries in Transition
Transitional justice processes often neglect to address those violations of economic and social rights that occurred during the conflict and that are often at the very roots of violent strife. OHCHR has been exploring ways in which transitional justice mechanisms can more comprehensively examine violations of economic, social and cultural rights, as well as civil and political rights. Truth commissions can be used for this purpose whenever appropriate. Case law of international, regional and national courts has helped to clarify the nature of State’s obligations to combat impunity for serious violations of economic, social and cultural rights. Reparations programmes also provide opportunities for redressing the needs of victims in the areas of health, education and economic welfare.
Inclusion of a gender perspective also widens the scope of transitional justice and offers the possibility of addressing potential imbalances at the very beginning of a reconstruction process. Gender inequality is one of the most pervasive forms of societal inequality and is often exacerbated by conflict. Transitional justice mechanisms that incorporate a gender perspective, such as prosecution initiatives that punish those responsible for committing sexual violence during conflict, or consultations with women to determine their priorities for transitional justice initiatives, can help ensure that oppression or maltreatment of women is not perpetuated into the future and that transitional justice appropriately addresses the rights and perspectives of women.
Ladies and Gentlemen,
I wish to bring to your attention three additional aspects of confronting the legacy of the past that have—and indeed, almost invariably carry—important implications for the success of transitional processes. I refer to programs for the disarmament, demobilization, and reintegration of former combatants, to the importance of vetting officials who are employed in areas that have direct bearing on the enjoyment of human rights, and to the protection of witnesses and victims.
Regarding the first issue, let me point out the importance of ensuring that former combatants do not retain weapons that should not be in civilian hands, and that such former combatants are fully reabsorbed into the life of a society. This is particularly crucial when these combatants are child soldiers. The Department of Peacekeeping Operations and my Office have been exploring ways to make Demobilization Disarmament and Reintegration programs and transitional justice initiatives more effective and better coordinated so they can positively reinforce each other.
DDR programmes are often one of the first security measures that are implemented in post-conflict situations. Their success provides the foundation for long-term reform of the security sector and other institutions. It is thus crucial that in coordinating DDR and vetting processes, ex-combatants who have committed or are suspected of committing serious crimes are not reintegrated into national police or military structures. This may prevent additional human rights abuses from occurring. A failure to exclude abusers from police and military ranks may also undermine public trust in government institutions.
While police, security and military officials who are responsible for gross violations of human rights should not serve in State institutions, their removal must in all circumstances comply with due process requirements and the principle of non-discrimination. Clearly, there is a need to incorporate a human rights approach into future vetting processes.
From the same perspective, vetting processes are equally crucial. These processes are a component of transitional justice, but are often undertaken without due consideration for a human rights approach which is necessary for successful institutional reform.
OHCHR’s work in this area has been further encouraged by the recent Human Rights Council resolution on transitional justice. As many of you know, Switzerland is the main sponsor of this resolution. Pursuant to the Council’s request, OHCHR will be preparing further analysis on DDR and transitional justice for the 18th session of the HRC.
Finally, witness and victim protection is the foundation for effective investigation and prosecution of perpetrators of gross violations of human rights. The ability to render justice to the victims and to end impunity regarding past and ongoing abuses may be undermined if the justice system is unable to secure conviction because of failures in the production of witness evidence. There is a need to refine the effectiveness of witness protection methods through the provision of adequate financial, technical and political support at the national level. Effective witness protection programmes should also be designed to shield against reprisal individuals who are cooperating with other accountability mechanisms, including those of a quasi-judicial and non-judicial nature, such as human rights commissions, truth commissions, and commissions of inquiry. OHCHR is currently working to explore the best means to adequately protect witnesses and victims in post-conflict environments.
In sum, a human rights approach is vital to securing lasting justice and reconciliation in periods of transition. The mechanisms and expertise to pursue it and absorb it when confronting the legacy of the past are available. States should make full use of them. I look forward to our discussion on how to better facilitate this endeavour.