Can truth replace justice?
The transitional justice approach provides a framework for recognizing the rights of victims, achieving accountability, advancing civic trust, reinforcing the rule of law and redressing human rights abuses to prevent similar harms from happening in the future. However, much of the contemporary debate still centers on whether transitional justice entails a choice between justice and peace, since trials can further aggravate social tensions and impede the peace process.
For the UN system, transitional justice entails the ‘full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses.’ This type of redress can be both ‘judicial and non-judicial’ to guarantee accountability of perpetrators, provide justice for victims and accomplish reconciliation for societies emerging out of conflict. The lobbying and advocacy role of CSOs is critical in this push for truth and reconciliation. Civil society needs to be better supported by governments to enhance the monitoring of transitional justice mechanisms. Transitional justice processes need to involve stakeholders from all tiers of society but CSOs are often found to be weak and limited in post-conflict countries. During the session, Pablo de Greiff – UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence – called for close cooperation between NGOs and truth commissions in transitional contexts from the onset. He emphasized that the outcome of recommendations largely relied on the ‘leadership and persistence’ of civil society in monitoring the implementation process.
The session also highlighted that the specific ‘transitional justice needs’ of a country need to be fully explored to ensure a comprehensive approach to peacebuilding. Egypt described transitional justice as a ‘human rights-based tool’ to reinforce the rule of law rather than replace judicial redress instruments at the national level. As a conflict state, Sri Lanka also highlighted the significance of ‘context specific’ reconciliation. In their case, factors such as demilitarisation and the reintegration of child soldiers need to be considered. Root causes of conflict, such as human rights abuses, need to continue to be investigated. This involves the assessment of national security and justice services.
Instruments and processes include prosecution schemes, the guiding of initiatives based on “the right to truth”, reparations, institutional reform and nationwide consultations. Truth-seeking mechanisms such as ‘State-sanctioned truth commissions’ and ‘unofficial’ truth-seeking procedures are carried out by international commissions of inquiry and civil society, for example victims’ organizations. Truth commissions act as non-judicial investigative bodies that operate on a temporary basis to inspect past violations of human rights at the national level. This can include abuses committed by governments or opposition forces. States must strengthen civil society to help facilitate their watchful role according to de Greiff.
The relevance of truth-seeking mechanisms is subject to debate. Ongoing debates on the ‘transitional justice strategy’ question whether it demands a choice between justice and peace. Existing divisions within society may worsen despite a culture of justice being encouraged by trials at both the national and international levels. This can inadvertently undermine prospects for peace. Perpetrators could be reluctant to surrendering weapons based on probable prosecution charges. This also counts for truth commissions, often described as ‘promoting peace and reconciliation’ at the expense of punishing perpetrators. Commissions can provide amnesty to those charged with crimes related to human rights abuses.
In his second annual report presented to the UNHRC, de Greif stressed that ‘truth cannot be a substitute for justice […] singly or collectively.’ Several permanent missions aligned themselves with this statement during the session. The UN Human Rights council should continue to promote peace and reconciliation to help facilitate nation-building and inclusiveness at the national and local levels. The EU welcomed the report of the Special Rapporteur and attached particular emphasis to ‘laying foundations of truth seeking elements in transitional justice’. The element of truth does remain a ‘vital response to the crimes’ to document human rights abuses and prevent recurrences according to Amnesty International. Truth commissions cannot replace justice systems but ‘truth is the foundation of justice’ conveyed by the International Center for Transitional Justice (ICTJ). Achieving justice in transitional contexts, such as ongoing conflict or state repression can enhance the ‘healing process’ of sufferers and witnesses. It can also help address tensions and social divisions and educate generations by building a historical record of occurred events.
In all, the widespread support of the Special Rapporteur’s mandate highlights the growing international understanding that human rights abuses and violations of international humanitarian law must be effectively redressed to enhance prospects of durable peace. Truth cannot substitute justice but providing redress for victims through grievance mechanisms can be an essential part of the peacebuilding process.