Breaking the Ground on Peace and Stability: Transitional Justice and the Rule of Law

Transitional justice, at the core of its mission, strives to “break the ground on a future of peace and stability.” For countries with a violent or repressive past—and this can be said of most—implementing truth-seeking, criminal justice, reparations, and institutional reform measures forms the basis for establishing a culture of justice and respect for the rule of law.

This was the overarching message of an informal panel discussion, hosted by ICTJ and the Permanent Missions of Switzerland and Tunisia May 7, on the relationship between transitional justice and the rule of law.

In his discussion, ICTJ President David Tolbert defined the central role transitional justice must play in rule of law discussions. In a society that has experienced mass human rights abuses, “the past must be dealt with, victims need to be recognized, the truth needs to come out, institutions need to be reformed,” he said. If this does not happen, there is no basis for the rule of law.

Where societies have failed to address the past, he continued, we see higher likelihood of a resurgence of violence and abuse. Conversely we also can look to examples of countries that emerged from conflict or repressive regimes and built strong rule of law systems. Argentina, for example, provides just one of many case studies where a concerted transitional justice process has laid the groundwork for strong security and rule of law systems.

“Rule of law is not built on the shoulders of those who committed crimes.”
    Tunisia, while very early in the process, has also shown a commitment to pursuing a range of transitional measures—investigations and trials, commissions of inquiry into corruption and human rights abuses, measures of compensation to victims—to restore faith in the government and in the rule of law.

Justice is the pillar of any transition, Nejmeddine Lakhal, deputy permanent representative from Tunisia explained. The Tunisian people understand that implementing truth-seeking, reparations measures, criminal justice, and institutional reform measures is investing in the establishment of a peaceful society.

“Rule of law is not built on the shoulders of those who committed crimes,” Tolbert concluded. It must be constructed from truth, justice, and principles of accountability.

In his first public intervention as the new Special Rapporteur for the promotion of truth, justice, reparations and guarantees of non-recurrence, Pablo de Greiff provided an overview to the mandate of the newly created position and its contributing role in strengthening the rule of law.

This new position is mandated to "deal with situations in which there have been gross violations of human rights and serious violations of international humanitarian law." Given the breadth of this ambitious mandate, he emphasized, "whatever success is to be had will not be a matter of individual, but of collective effort."

The four types of mechanisms laid out in the mandate—truth, justice, reparations, and guarantees of non-recurrence—must not be thought of as separate strategies for addressing the past, but rather as parts to a whole, he said. The complexity and scale of the situations in which transitional justice mechanisms operate—societies that have experienced mass violations of human rights or humanitarian law—requires a comprehensive combination of these measures.    
"If even basic norms can be violated in total impunity, it is hard to think society takes seriously the rule of law."

This point was underscored by comments from a representative to the Permanent Mission of Rwanda, who discussed how the sheer magnitude of the 1994 Rwandan genocide rendered traditional criminal justice proceedings insufficient. With over one million victims, 250,000 people in jail and even more in exile, it was estimated it would take over 100 years to try everyone responsible, he said.

Gacaca courts, a communal justice system implemented after the genocide, created a forum in which everyone was required to share their experiences to contribute to establishing a comprehensive picture of the atrocities. “The truth became justice,” he explained.

In keeping with this increased focus on strengthening the rule of law, earlier this year the United Nations Secretary General issued a new report titled “Delivering Justice,” meant to serve as a program of action for the UN. Edric Selous, director of the Rule of Law Unit of the Executive Office of the UN Secretary-General, provided an overview of the new report.

The key purpose of the publication is to advance and strengthen the field of transitional justice as a system through which to establish a basis for just and peaceful societies, he said.

“International criminal justice is predicated on justice and rule of law at the national level.”
    The system of international criminal justice is predicated on the implementation of justice and rule of law practices at the national level. For countries facing legacies of mass atrocity, this is not solely achieved through criminal justice, he argued. The report also defines other transitional justice measures, such as fact-finding missions and truth commissions, as forming the basis for establishing accountability.

The launch of this report will be followed by a high-level meeting in September to discuss how to implement its recommendations, Selous concluded. States will be encouraged to make individual pledges based on rule of law priorities in their countries. This could be to implement the Rome Statute of the International Criminal Court, assist other states in strengthening domestic capacity to handle cases of international crimes, or implement transitional justice mechanisms to ensure accountability for past atrocities.

Photo: A woman participates in a demonstration in downtown Tunis, Tunisia, Jan. 19, 2011. Photo courtesy of Holly Pickett.