Transitional justice is a response to systematic or widespread violations of human rights. It seeks recognition for victims and promotion of possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. In some cases, these transformations happen suddenly; in others, they may take place over many decades.
The 2004 Secretary General’s Report to the Security Council on the rule of law and transitional justice in conflict and post-conflict societies defines transitional justice as the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation[1].
The question of transitional justice arises in two sets of constellations: either as a matter of post conflict justice in the context of armed conflict; or when dealing with past abuses committed by dictatorships or authoritarian regimes. The concept is characterised by a past of massive human rights abuses and a process of transition to peace and democracy. The primary objective of transitional justice is to end impunity and establish the rule of law in the context of democratic governance[2]. Some of the most known countries that experienced massive and systematic human rights violations and started the process of transitional justice are South Africa, Chile, Sierra Leone, Argentina, Rwanda and successor states of SFR Yugoslavia.
How a fledgling democracy ought to reckon with severe human rights abuses is a question central to the notion of transitional justice. Many discussions commonly assume that there are only two possible responses to past wrongs: trial and punishment or forgetting the past. Although “transitional justice” often refers exclusively to prosecution of human rights violators, it is more accurate to apply the term more broadly to cover the possibilities of establishing an accurate account of the past, compensation to victims, fair distribution of goods and opportunities, and the restoration of what has been lost. As a new democracy deals with its “difficult past” by responding appropriately to past evils, it must also take care not to undermine its prospects for future development.[3]
The major transitional justice mechanisms to deal with past human rights abuses are criminal prosecutions; truth commissions; reparations; institutional reform and memorialisation.
Criminal prosecutions
The criminal prosecution of perpetrators who have committed major human rights violations is a first and perhaps most obvious way of dealing with past abuses. These are judicial investigations of those responsible for human rights violations. Prosecutors frequently emphasize investigations of the “big fish”: suspects considered most responsible for massive or systematic crimes.
Prosecution initiatives aim to ensure that those responsible for committing crimes, including serious violations of international humanitarian law and gross violations of international human rights law, are tried in accordance with international standards of fair trial and, where appropriate, punished. The credibility and legitimacy of prosecution initiatives require that they are conducted in a non-discriminatory and objective manner, regardless who the alleged perpetrators may be. States have the primary responsibility to exercise jurisdiction over these crimes. Therefore, in relation to the alleged crimes committed in the context of the conflict or repressive rule, transitional justice programmes will seek to reinforce or develop national investigative and prosecutorial capacities, an independent and effective judiciary, adequate legal defence, witness and victims’ protection and support, and humane correctional facilities.
At the same time, states emerging from years of conflict or repressive rule may be unable or unwilling to conduct effective investigations and prosecutions. In such situations, international and hybrid criminal tribunals may exercise concurrent jurisdiction. The establishment of these various criminal tribunals represents a historic achievement in seeking accountability for international crimes. The establishment of various criminal tribunals represents a historic achievement in seeking accountability for international crimes. When establishing an international or hybrid criminal tribunal, it is essential that priority consideration is given to their legacy in the country concerned as well as to the exit strategy. The establishment of the International Criminal Court (ICC), the only permanent international criminal tribunal, represents the most significant recent development in combating impunity.
The ICC operates on the basis of the principle of complementarity articulated in Article 17 of the Rome Statute. As such, it should also contribute to the development of national capacities to bring alleged perpetrators of international crimes to justice.[4]
Truth commissions
Truth-seeking processes assist post-conflict and transitional societies investigate past human rights violations and are undertaken by truth commissions, commissions of inquiry, or other fact-finding missions. Truth commissions are non-judicial inquiries established to determine the facts, root causes, and societal consequences of past human rights violations. Through their focus on the testimony of victims of atrocity, truth commissions provide acknowledgement and recognition of suffering and survival to those most affected.
Truth commissions are typically tasked with some or all of the following goals: to discover, clarify, and formally acknowledge past abuses; to address the needs of victims; to “counter impunity” and advance individual accountability; to outline institutional responsibility and recommend reforms; and to promote reconciliation and reduce conflict over the past.[5]
A fundamental difference between trials and truth commissions is the nature and extent of their attention to victims. Although commissions may investigate the involvement of individual perpetrators in abuses and may receive critical information from perpetrators and others from within the system of repression, much of their time and attention is focused on victims. By listening to victims’ stories, perhaps holding public hearings and publishing a report that describes a broad array of experience of suffering, commissions effectively give victims a public voice and bring their suffering to the awareness of the broader public.[6]
The effective implementation of the right to the truth requires a strong national archival system. In many societies emerging from conflict or repressive rule, however, such systems are weak or non-existent, and vulnerable to efforts to destroy evidence of human rights violations. [7]
Many truth commissions have the explicit goal of fostering national reconciliation, with many incorporating the word “reconciliation” in their official mandate and/or name. Reconciliation should be understood as a long-term social process that cannot be achieved by a truth commission alone, in a short amount of time. At best, commissions can help to create better conditions for reconciliation by encouraging institutional reform and changes in the political culture of a state, and by restoring the dignity of those most affected by violence.[8]
Reparations
These are initiatives that help repair the material and moral damages of past abuse. They typically distribute a mix of material and symbolic benefits to victims, benefits that may include financial compensation and official apologies. These can also include museums and memorials that preserve public memory of victims and raise moral consciousness about past abuse, in order to build a bulwark against its recurrence.
Reparations for victims of human rights violations are meant to recognize and address the harms suffered and acknowledge wrongdoing. With their material and symbolic benefits, reparations are important to victims because they are often seen as the most direct and meaningful way of receiving justice.[9]
Institutional reform
Institutional reforms are concerned with the building of fair and equitable institutions as a safeguard against the recurrence of human rights violations. They embrace constitutional and legal reforms (including security system reforms) as well as free elections. Measures such as vetting, lustration and disarmament, demobilisation and reintegration programmes are important components of such reforms.[10]
Reforming public institutions is a core task in countries in transition from authoritarianism or
conflict to democracy and peace. Public institutions that perpetuated a conflict or served an
authoritarian regime need to be transformed into institutions that support the transition, sustain peace and preserve the rule of law. Institutions that abused human rights and defended the partisan interests of a few need to become institutions that protect human rights, prevent abuses and impartially serve the public. Dysfunctional and inequitable institutions that created fear need to turn into efficient and fair institutions that enjoy civic trust. By reforming or building fair and efficient public institutions, institutional reform enables post-conflict and transitional governments to prevent the recurrence of future human rights violations.[11]
Vetting is an important aspect of personnel reform in countries in transition. Public employees who are personally responsible for gross violations of human rights or serious crimes under international law revealed a basic lack of integrity and breached the trust of the citizens they were meant to serve. Vetting processes aim at excluding from public service persons with serious integrity deficits in order to (re‑) establish civic trust and (re‑) legitimize public institutions.[12]
Gender justice
These efforts challenge impunity for sexual and gender-based violence and ensure women’s equal access to redress of human rights violations. A gender justice approach should be a central element, exploring how women and men experience conflict and human rights violations differently. The pursuit of gender justice includes prosecutions for gender-based violence; reparations delivery to diverse groups of women and their families; memorials recognizing women’s experiences; and institutional reform that serves human security needs and promotes women’s access to justice. [13]
Memorialisation
Memorials seek to preserve memories of people or events. In the context of transitional justice, they serve to honour those who died during conflict or other atrocities, examine the past, address contemporary issues and show respect to victims. They can help create records to prevent denial and help societies move forward. Memorials may include commemoration activities, such as architectural memorials, museums, and other commemorative events.
Victims of human rights abuses cannot forget and states have a duty to preserve the memory of such crimes. For this memorials, museums, and commemorative activities are indispensable educational initiatives to establish a historical public record that is beyond denial and to help prevent repetition.[14]
- Which institutions and documents are important?
United nations
There are dozens UN instruments related to the promotion of truth, justice, reparation and guarantees of non-recurrence of mass human rights violations. Key International Instruments are stemming from general documents like the United Nations Charter or Universal Declaration of Human Rights, to the specific treaties like the Geneva conventions, Convention on the Prevention and Punishment of the Crime of Genocide and International Convention for the Protection of All Persons from Enforced Disappearance[15].
There are two very important UN General Assembly resolutions concerning transitional justice in post-conflict societies which are most relevant for Western Balkan states. These are Resolution adopting the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted in 1985 and Resolution adopting the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted in 2006.
The latter affirms the obligations of States and legal implications in connection with gross violations of international human rights law and serious violations of international humanitarian law, notably the obligation to prevent violations, the obligation to investigate, prosecute and punish perpetrators, the obligation to provide effective access to justice to all persons alleging a violation, and the obligation to afford full reparation to victims (principles 1-4). The legal implications relate to and qualify universal jurisdiction, extradition, judicial assistance and cooperation as well as statutes of limitations (principles 5-7). The larger part of the Principles and Guidelines, with strong domestic law implications, sets out the status and the rights of victims, and corresponds to the title of the document as it refers to the right of victims to a remedy and reparation (in particular principles 11-23). A core component of the Principles and Guidelines, denoting a broad range of material and symbolic means to afford reparation to victims, is laid out in the principles describing the various forms of reparation[16].
As a response to mass atrocities and violations of human rights on the territory of former SFRY and its successor states, United Nations established International Criminal Tribunal for former Yugoslavia (ICTY) in 1993. The ICTY was the first war crimes court created by the UN and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals. It was established by the Security Council in accordance with Chapter VII of the UN Charter[17].
The ICTY has charged 161 and produced sentences for 90 persons. Those indicted by the ICTY include heads of state, prime ministers, army chiefs-of-staff, interior ministers and many other high and mid-level political, military and police leaders from various parties to the Yugoslav conflicts. Its indictments address crimes committed from 1991 to 2001 against members of various ethnic groups in Croatia, Bosnia and Herzegovina, Serbia, Kosovo and the Former Yugoslav Republic of Macedonia.
In its decision for establishing ICTY by UN Security Council and national acts which are defining state cooperation with this UN body it is defined that all states should fully cooperate with ICTY in providing evidence, investigation, extradition of the accused persons, enforcing sentences, identification and location of suspects and the accused.
Since ICTY closed its doors in 2017 the Mechanism for International Criminal Tribunals (Mechanism or MICT), formally referred to as the International Residual Mechanism for Criminal Tribunals took its place in prosecution of persons responsible for war crime on the territory of former Yugoslavia. Mechanism is mandated to perform a number of essential functions previously carried out by ICTY. In carrying out its multiple functions – as listed below – the Mechanism maintains the legacies of this pioneering ad hoc international criminal courts and strives to reflect best practices in the field of international criminal justice.
In its precedent-setting decisions on genocide, war crimes and crimes against humanity, the Tribunal has shown that an individual’s political position cannot protect them from prosecution. ICTY made efforts that those suspected of bearing the greatest responsibility for atrocities committed are called to account, that guilt is individualised, protecting entire communities from being labelled as “collectively responsible”. Experience of the ICTY helped the creation of the International Criminal Court (ICC) in 1998. Court’s statute enshrines state obligations of vital importance to the fight against impunity and respect for victims’ rights.
Other United Nations rule of law and transitional justice activities include developing standards and best practices, assisting in the design and implementation of transitional justice mechanisms, providing technical, material and financial support, and promoting the inclusion of human rights and transitional justice considerations in peace agreements.
Organisation for Security and Cooperation in Europe
Based on the experience of the OSCE High Commissioner on National Minorities and the advice of internationally recognized experts the Commissioner published The Graz Recommendations on Access to Justice and National Minorities to provide guidance to OSCE participating States on access to justice and national minorities. Access to justice for national minorities is not only about minorities’ enjoyment of rights but is also relevant to conflict prevention within and between states. [18]
States should, as a matter of urgency, provide effective redress to persons belonging to national minorities who have suffered serious human rights violations as a result of inter-ethnic conflict.
Human rights violations committed against individuals, including persons belonging to national minorities, often invite retaliation and further violence. If these tensions and crimes are left unaddressed, they are likely to foster resentment on the part of victims, entrench divisions between communities and lead to another cycle of conflict, violence and possibly mass atrocities. Societies that have experienced conflict and serious human rights violations involving national minorities need to find ways to deal with the past so they can build a future in which all communities, including national minorities, can coexist peacefully. States should therefore and as a matter of urgency provide redress to victims and, where appropriate, to communities that have been affected by serious human rights violations in the context of communal conflict.
Other important set of guidelines are HCNM Ljubljana Guidelines on Integration of Diverse Societies. They seek to provide guidance to OSCE participating States on how best to integrate diverse societies. They cover structural principles without which good integration policies are difficult to conceive as feasible [19]
States should promote integration by respecting the claims and sensitivities of both minority and majority groups regarding the display and use of symbols in shared public space. While being mindful of freedom of expression, States should avoid the divisive use of symbols and discourage such displays by non-State actors. Where appropriate, opportunities to promote inclusive symbols should be sought.
Symbols, such as flags, signs, statues, monuments, place
and street names, commemorative occasions or holidays, historical sites and
burial sites, can have profound meanings related to identity. Symbols can have
a powerful impact on social relations and can be used to promote inclusion and
cohesion as well as separation and division. The inappropriate use of symbols
can cause tensions and incidents that can escalate into conflict and
intercommunity violence. This can be avoided by including balanced and fair
rules to address potential issues relating to symbols as essential elements of
integration policies.
[1] http://archive.ipu.org/splz-e/unga07/law.pdf
[2]http://www.bundesheer.at/pdf_pool/publikationen/transitional_justice_sr_11_2013_03_c_binder.pdf.
[3] Truth Commissions and Transitional Justice, David A. Crocker, Report from the Institute for Philosophy & Public Policy
[4] Guidance note of the Secretary – general, United Nations Approach to Transitional Justice, United nations, nation unies, 2010
[5] Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, Priscilla B. Hayner
[6] Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, Priscilla B. Hayner,
[7]Guidance note of the Secretary – general, United Nations Approach to Transitional Justice, United nations, nation unies, 2010
[8] Truth Seeking: Elements of Creating an Effective Truth Commission, Eduardo González and Howard Varney, eds., Amnesty Commission of the Ministry of Justice of Brazil, International Center for Transitional Justice; New York), 2013
[9] https://www.ictj.org/our-work/transitional-justice-issues/reparations
[10] Guidance note of the Secretary – general, United Nations Approach to Transitional Justice, United nations, nation unies, 2010
[11] Ibid.
[12] Rule-of-law, for post conflict States,Vetting: An operational framework, Office of the High Commissioner, New York and Geneva, 2006
[13] https://www.ictj.org/about/transitional-justice
[14] https://www.ictj.org/our-work/transitional-justice-issues/truth-and-memory
[15] https://www.ictj.org/transitional-justice-legal-and-policy-references
[16] http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx
[17] http://www.icty.org/en/about
[18] https://www.osce.org/hcnm/graz-recommendations
[19] https://www.osce.org/hcnm/ljubljana-guidelines
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