04-03-2020

Exploring the link between transitional justice and peacebuilding. Recent UN action

Impuls 01/2020 von Marcus Lenzen, Sebastiaan Verelst und Julia Raue

On 13 February 2020, the Security Council held its first-ever open debate on transitional justice under the broader agenda item “peacebuilding and sustaining peace”. In nearly 60 statements, countries (as well as the European Union and the Non-Aligned Movement) shared their reflections and experiences on transitional justice as a building block towards sustaining peace. The debate revealed a broad consensus around the relevance of transitional justice to peacebuilding, and to the international peace and security agenda of the Security Council. Indeed, many States once again stressed the importance in peacebuilding of a comprehensive approach to transitional justice, as they had already done in the 2016 twin resolutions on sustaining peace.

Mr. Mathias Licharz, Minister-Counsellor of the Permanent Mission of Germany to the United Nations, told the Security Council: “No country can ever be guaranteed that violence and conflict will not reoccur. Transitional justice has no endpoint. It is a constant endeavour that we have to undertake every single day in order to safeguard ourselves and the societies in which we live against sliding back into disaster.” We know indeed that armed conflict and atrocities are often cyclical, fueled by deep-rooted grievances and long-standing impunity. Across the world, mass protests have recently expressed populations’ frustration with persisting inequalities; social, economic, gender and climate injustice; and other human rights abuse.

This article highlights some of the reflections of the UN High Commissioner for Human Rights on how transitional justice can best address these root causes of violations and contribute to prevention, sustainable peace and development.

The transformative power of transitional justice

In her briefing to the Security Council, UN High Commissioner for Human Rights Michelle Bachelet, argued that sustaining peace requires addressing the justice demands of populations. For a society to move forward after the weapons fall silent and atrocity crimes cease, “suffering needs to be acknowledged; confidence in State institutions restored; and justice done.” Ms. Bachelet made the case that transitional justice processes should be context-specific, nationally owned, and focused on the needs of victims. Then, they can best connect, empower and transformsocieties and thereby contribute to lasting peace. The 2016 twin resolutions on sustaining peace similarly recognize national ownership and inclusivity as fundamental for peacebuilding efforts to succeed.

Inclusive and locally driven truth commissions have played a significant role in many societies, connecting divided communities, changing the narrative around a contentious past, and charting a new way forward. Context-specific and participatory transitional justice processes can also be deeply empowering for victims. This is especially true for women and girls, indigenous communities and minorities that have been marginalized. Demands for truth are tenacious and also take new forms, such as the locally driven provincial mechanisms in Kasai, Democratic Republic of Congo.

The High Commissioner further highlighted the transformative power of transitional justice in shaping reparations and guarantees of non-repetition. Such measures must be based on deep analysis of the causes and manifestations of conflict and atrocity crimes, often including systemic discrimination, inequalities and structural impunity. (Re)building of institutions is key. Additionally, in order to unlock the transformative potential of transitional justice, empowerment of civil society, history education, trauma counselling and memorialization initiatives are crucial.

Ms. Bachelet further argued that transitional justice provides a particularly useful lens and the operational tools to find a path towards sustainable peace. She stressed that the international community and the Security Council had important roles to play in assisting States in such processes, including by sharing experiences, encouraging genuinely comprehensive approaches, and providing UN field missions with appropriate mandates and resources to support transitional justice.

Combating impunity: sustainable transformations require deep changes in attitude

On 11 March 2019, at the Arria-formula meeting of the Security Council on the contribution of justice and accountability to international peace and security, the High Commissioner emphasized how impunity can drive conflict. She stated: “As many societies have learned—the hard way—in a culture of impunity, where perpetrators are emboldened, and victims silenced, grievances will breed until they erupt in renewed violence”. Impunity for serious human rights violations, particularly where they amount to atrocity crimes, is increasingly understood as a key driver to the recurrence of such crimes. Recent UN independent investigative mechanisms for Myanmar and South Sudan have found that impunity played a significant role in perpetuating cycles of violence and that accountability was therefore critical. Numerous States at the Security Council open debate have recognized the importance of criminal accountability for serious crimes under international law, including Germany.

A comprehensive approach to transitional justice therefore also comprises a criminal justice component, seeking accountability for perpetrators and justice for victims of serious violations. Whatever combination of measures is chosen, it must work towards the deep institutional, societal and attitudinal changes required by a sustainable transformation. In this regard, the High Commissioner recognized how “civil society has been essential to urging and supporting Governments to take decisions that have long-term benefits, despite potential short-term political costs”.

Recent UN initiatives in transitional justice and sustaining peace

The debates at the Security Council and the statements of the High Commissioner underscore the importance of transitional justice for peacebuilding and the renewed attention it is receiving. The UN has considered transitional justice mechanisms as an important element in the peacebuilding toolbox for some time. The Secretary-General’s 2004 report on ‘The rule of law and transitional justice in conflict and post-conflict societies’ provided a framing of transitional justice that is still widely referred to today. Nonetheless, there are now several important initiatives underway that may help to refresh the UN’s thinking and performance in this area.

Human Rights Council: transitional justice, sustaining peace and SDG16

The Human Rights Council (HRC) has been particularly engaged on the issue of transitional justice. In 2011, in resolution 18/7, the HRC established the mandate of a special rapporteur for the promotion of truth, justice, reparation and guarantees for non-recurrence. This resulted in crucial guidance on thematic issues and on country-related work.

In resolution 42/17 of 19 September 2019, the Human Rights Council tasked the Office of the High Commissioner for Human Rights to prepare a report on how “addressing a legacy of gross violations and abuses of human rights and serious violations of international humanitarian law through transitional justice measures can contribute to sustaining peace and the realization of Sustainable Development Goal 16”. This report will be presented at the Council’s 46th session (February/March 2021). The process will provide an excellent opportunity to engage a broad range of stakeholders and further explore how these different policy areas interlink and can strengthen each other.

Increasing role of the Peacebuilding Fund in supporting transitional justice processes

Many UN departments and agencies support transitional justice processes, frequently through catalytic funding of the Secretary-General’s Peacebuilding Fund (PBF). A forthcoming report reviewing the PBF’s support to transitional justice processes over the period 2014-18 shows that so far nine UN agencies have implemented projects with PBF funding. Almost all projects have been jointly implemented by more than one agency, pursuing comprehensive approaches across the transitional justice “pillars”. The review will be published in the next couple of months. Initial findings show that the demand for PBF-support to transitional justice has been growing in the past years. It also demonstrates how support strategies differ and could be refined further. Most projects reflect strong emphasis on the needs of victims, and women and girls, but the review also found that more could be done to ensure that the project design phase is as consultative as possible.

Renewing the UN approach to transitional justice support

More broadly, the UN system has also embarked on a review process of the Secretary-General’s Guidance Note on the UN’ Approach to Transitional Justice. It will be the first revision since the Secretary-General issued the note in 2010. This endeavor is to ensure that the UN’s approach to transitional justice and its support to domestic transitional justice processes remain relevant. It will take stock of 10 years of additional knowledge and experience across the globe and align its vision of transitional justice with the broader prevention, sustaining peace, development and rule of law agendas of the UN system. It seeks to identify best practices and effective approaches for transitional justice support.

2020 Peacebuilding Architecture Review

The 2020 Peacebuilding Architecture Review is underway. In May 2020, the Secretary-General will report on progress against the 2016 sustaining peace resolutions and on the implications for the Peacebuilding Architecture. A series of consultations are taking place, hosted by many Member States. UN agencies and other expert organizations have been invited to make contributions. OHCHR, for instance, provided a Thematic Paper on “Peacebuilding, sustaining peace and transitional justice. The contributions will be publicly available on the website of the Peacebuilding Support Office.

Conclusion: 2020 a pivotal year for transitional justice at the UN?

2020 began with a surprisingly rich and interesting Security Council debate on transitional justice as a building block for sustaining peace. It provided a new impetus to sharpen our collective understanding of the ways in which transitional justice can best contribute to prevention, sustainable peace and development. This, in turn, should lead to more innovative and strategic support to transitional justice processes across the globe.

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