On 13 February the Security Council held its first ever discussion on transitional justice as a thematic issue, with States from every region offering first-hand accounts and calling for the UN to play a supportive role. Belgium, Security Council President for the month of February, initiated and presided over the open debate on ‘transitional justice in conflict and post-conflict situations,’ under the Peacebuilding and Sustaining Peace agenda item (the debate can viewed online (Part I and Part II)).
Transitional justice refers to the ways in which countries emerging from conflict or large-scale repression address gross violations of human rights and serious violations of international humanitarian law. Transitional justice generally features a spectrum of interlinked and complimentary measures, including truth seeking, justice (including criminal justice), reparation, and guarantees of non-recurrence (generally reforms, including of political, social and security institutions). Transitional justice has been a component of the Security Council’s work in the past and has appeared in Council resolutions, such as resolution 2282 adopted in April 2016, which identified transitional justice as critical to sustaining peace. Transitional justice has also appeared in resolutions on country-specific agenda items.
The debate began with a briefing by the High Commissioner for Human Rights Michelle Bachelet (via VTC). This is one of the very few times High Commissioner Bachelet has spoken to the Security Council. She gave her first address to the Security Council in March 2019 at an Arria-Formula meeting, on the related topic of ‘human rights, accountability, and justice: contributions to international peace and security.’
At the 13 February debate, Ms. Bachelet pointed out that peace does not automatically follow ‘when weapons fall silent;’ sustainable peace depends on the presence of justice, development and respect for human rights. Rebuilding lives requires justice to be done, suffering to be recognised, and confidence in State institutions to be restored.
Ms. Bachelet cautioned that ‘demands for justice can be denied – but they will not disappear,’ a statement of particular relevance to a body like the Security Council which has authorised international justice mechanisms and commissions. In addition to citing examples from around the world, she spoke of her own experience in Chile: ‘transitional justice processes that are context-specific, nationally owned, and focused on the needs and informed choices of victims can connect, empower, and transform societies, and thereby contribute to lasting and just peace.’ She noted that inequality (a prominent concern for human rights monitors), and the failure in the present to address abuses from the past puts States at serious risk for future violations.
She noted that the international community has a key role to play in assisting States, highlighting the impact of fact-finding missions and commissions of inquiry in ‘bringing facts to light, providing national authorities and the international community with an honest mapping of often complex and long-lasting issues.’ She also pointed out that explicit references in Security Council resolutions to transitional justice processes, as appeared in Resolution 2489 on the UN Assistance Mission of Afghanistan, provide a strong foundation for UN engagement with the government and civil society on this complex issue.
Yasmin Sooka, Executive Director of the Foundation for Human Rights in South Africa, Trustee of the Desmond Tutu Peace Centre and Chair of the Commission on Human Rights in South Sudan, also briefed the Security Council. She urged the Council to work with the Human Rights Council, the High Commissioner for Human Rights, the General Assembly and other mechanisms and bodies to address indirect causes of conflict such as structural violence, discrimination and economic exploitation, and take innovative and decisive approaches to conflict and peacebuilding. Ms. Sooka pointed out that ‘African experiences have challenged the narrow focus on civil and political rights violations, in light of the legacies of violence and structural violations arising from their colonial histories’ and that processes in Sierra Leone, Peru and Tunisia have seen progress in addressing the role of gender. She also pointed that fragile States emerging from crises do not always have the capacity to carry out ambitious and sweeping transitional justice programmes, and that this is where the UN and member States should be providing vital support.
Mr. Francisco de Roux, President of the Commission for the Clarification of Truth, Coexistence, and Non-Repetition of Colombia, pointed out that transitional justice costs very little when compared to, for example, military transactions. He also cautioned that during the processes governments need political determination to avoid having transitional justice slide into politicisation.
More than 60 countries participated in the ensuing general debate, many sharing their national experiences. It is notable that such examples came from every region, and from States at every level of development. All States lent their support for transitional justice in principle and agreed on the importance of having some kind of transitional justice process following a period of violations. Many speakers raised the importance of having a victim-centred and context-specific approach that goes beyond individual accountability to address structural deficits, though they differed on the extent of the UN’s role. Several States, including the Gambia, which spoke to its own recent experience, emphasised the critical importance of extensive consultations with stakeholders, particularly victims (and in Gambia’s case, including diaspora communities), to ground the frameworks of transitional justice processes.
Kenya noted that inclusive and comprehensive transitional justice can provide a roadmap for lasting and sustainable peace. South Africa stated that transitional justice was essential to its peaceful transition, and encouraged countries to explore the wide range of transitional justice tools available to tackle complex issues. Many States chose to highlight some of these tools and emphasise their importance: Peru noted that when it comes to accountability, for crimes against humanity and genocide the full force of law must be applied; Indonesia raised the importance of including women in transitional justice planning and processes; and Norway highlighted the importance of a victim’s right to truth, and how the process acknowledges their suffering. While highlighting the importance of transitional justice, many states also offered notes of caution. India and the United Kingdom warned of the risks of half-hearted transitional justice processes, and Canada pointed out that transitional justice is not ‘magic,’ and that the ‘lengthy journey to repairing harm is a process, not an event.’
Several States raised the linkages between transitional justice and sustainable development. El Salvador noted that transitional justice processes have often lacked a socioeconomic focus, while Portugal and Luxembourg pointed out that transitional justice is essential to achieving the Sustainable Development Goals (SDGs). Saint Vincent and the Grenadines suggested that transitional justice be part of a larger strategy to address structural inequalities and to consider the needs of vulnerable and marginalised communities. Fiji pointed out that, as new conflicts will arise from climate change, that perhaps transitional justice has a role to play in addressing the human impact of climate change as well.
Role of the international community
A number of States commented on the role of the Security Council in supporting transitional justice processes. Tunisia noted that the Council can encourage national measures promoted by civil society. Germany recalled Council resolution 2467 (2019) which stressed a survivor-centred approach to transitional justice. Germany also urged the Security Council to include reconciliation and related activities in mission mandates, and to invite Human Rights Council commissions to brief the Security Council more often. Estonia and Liechtenstein called on the Security Council to do a better job in prevention, with Estonia suggesting the role of transitional justice in prevention. Saint Vincent and the Grenadines called for the Council to engage the Peacebuilding Commission’s strategic advisory capacities more often and, where relevant, make better use of the Peacebuilding Fund.
Several States also addressed the role of other international and regional bodies and mechanisms. Niger welcomed the African Union’s continental guidelines for transitional justice, while Tunisia expressed support for the victim trust fund set up by the Rome Statute. In fact, a number of countries took the opportunity to express support for the work of the International Criminal Court. Argentina recommended states join the International Convention for the Protection of all Persons from enforced disappearance. When the ICRC spoke, they described enforced disappearances as a humanitarian issue, and ‘an open wound’ for those affected.
Several States expressed caution about the extent of the UN’s involvement, with Brazil referring to the UN’s support as a ‘balancing act.’ Most States agreed, however, regardless of external support, that national ownership is critical for the long-term success of transitional justice. Japan stated that transitional justice mechanisms must be considered credible, inclusive, and locally owned in order gain people’s trust.
The discussion included fairly universal support for transitional justice (though not without caveats) and ultimately highlighted areas where the field has made recent progress, such as consideration and inclusion of socioeconomic factors and grievances, the incorporation of a gender perspective, the critical importance of consultations with victims, and the need to go beyond (though not eliminate) the question of individual criminal accountability. At least one State also raised the tricky issue of dealing with violations by non-state actors.
Transitional justice is an area where every region has experience and insight, and given that some form of transitional justice has become an expectation, not just an ambition, debates such as this are important for the Security Council to determine its role and ensure that any resolution that refers to transitional justice reflects a deeper understanding of its complexity.
It is also an opportunity to reconnect the Council with those most affected by its decisions or indecision. Mr. De Roux noted that transitional justice is a process that allows victims to be recognised as citizens with full political and social rights. He stressed that the international community needs to be committed and put human beings above any other purpose or goal.
Featured image: Screenshot taken from UN Web TV: Peacebuilding and sustaining peace: Transitional justice in conflict and post-conflict situations – 8723rd Security Council Meeting
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