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Last Thursday, I attended a really interesting event hosted by the American Society for International Law on “The Relationship Between the Rule of Law and Transitional Justice: Synergies and Tensions.” Check out the summary below!
Pablo De Greiff, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence
In the first report to the UN Human Rights Council, we attempted to provide an account on ways transitional justice can contribute to rule of law. The report can be found here.
The UN System has clearly opted, at least in theory, for a robust understanding of human rights, political rights and democratic rights, the promotion of development, and good governance. Last year, there was a high level meeting on rule of law. The reality is in practice, we are confronted with a huge gap between rhetoric and implementation with rule of law. To illustrate the way in which transitional justice can contribute to rule of law it should be sufficient to recall commissions to date in countries including South Africa and Morocco. They have used the concept of rule of law in an explanatory role by asserting that the lack of respect for rule of law is a factor in the abuses. As a result, the commissions have made recommendations with the intention of strengthening the rule of law. Academic literature also agrees with the importance of transitional justice in contributing to rule of law.
In the report to the General Assembly, we didn’t write an exhaustive list of contributions, but we began categorizing those potential contributions of transitional justice to rule of law. This included truth commissions because it can arguably contribute to rule of law by exposing incentives to remove public officials involved in human rights and it recognizes security sector failures. They can also make recommendations for structural reform, ways to improve access to justice, the judiciary, and provide a comprehensive view of past and systemic failures. Truth commissions have also helped to give a voice to victims as individuals and as groups and have helped generate conversations. In Chile and South Africa, they have helped create an understanding of how judges have manifestly failed to provide justice. However,truth commissions are limited in power and they aren’t responsible for implementing recommendations.
Vetting is another important aspect of transitional justice. There are often massive purges after periods of conflict, but that model shouldn’t be followed if the aim is to strengthen rule of law. Vetting involves screening the behavior of individuals and assessing their integrity for stability. It can promote the rule of law in 3 ways. First, it removes personnel from justice and security sectors involved in gross human rights violations, and it spares victims from dealing with those who have abused them when they seek the state services they’re entitled to. Second, removing personnel may dismantle criminal networks and third, vetting measures can contribute to rule of law as a signaling function. It announces the readiness of leaders to commit to rule of law norms.
Reparation programs can also promote the rule of law in three distinct ways. Providing reparations is a way of satisfying the people’s rights and a series of state obligations, including remedies and fair treatment under the law. Reparations also provides evidence that violations of the law will not be allowed. Moreover, reparations can enable the exercise of other rights, restitution of citizenship, and other rights like having a criminal record expunged, so they may receive access to services. The prospect of victims exercising their rights allows them to exercise their rights under rule of law. When there is a collective nature to the conflict, that effect gender or ethnic groups, massive reparations can have an inclusive or redressive effect which strengthens the law and the protections it affords.
Criminal prosecutions for systematic violations give importance to the law and signals that no one is above the law. This process can help develop skills that are transferable and strengthen the capacity of judicial systems.
On The Relationship between Transitional Justice and Rule of Law
All transitional justice measures are designed to provide reparations to victims as holders of rights. Formations can promote civic trust between victims and institutions of the state and between each victim. Social mechanisms can also link inputs to outputs. Transitional justice has the ability to affirm certain basic norms that are fundamental to rule of law.
Challenges in Implementing Truth Commissions
Truth Commissions aren’t just tasked with looking at increasingly longer periods of history, but they’re also being tasked with an increasingly complex set of functions. We’re very concerned about it. Truth commissions are meant to be temporary bodies. They have no enforcement mechanisms, they’re underfunded, and frequently lack capacity. The combination of those trends along with their expensive mandates and underlying structural weakness is a terrible combination. The Truth Commissions expanded mandate has come at the price of satisfying its function of fact finding in the traditional sense. Solving certain human rights violations has surprisingly declined. What has taken its place has become mini constituent assemblies that are entrusted with the responsibility of proposing reform of all structures in a society. There are capacity and legitimacy questions involved. To make sure recommendations are taken seriously, we must improve the mandate of truth commissions.
Second, there is an issue about appointment procedures for commissions. Some, including the Kenyan commission ended up being staffed by people whose capacity to do this task was legitimately questioned. You have to think about the process and criteria used to choose truth commissioners. Third, because truth commissions don’t have enforcement mechanisms, they have no implementing power on its own. It’s important to think about the way in which truth commissions can strengthen civil society while they operate and after they operate, because ultimately it’s largely up to civil society to play a monetary and claiming function for the implementation of recommendations. None of these things are magic bullets, but they’re things that can improve transitional justice.
Dr. Aisling Swaine, Hauser Global Fellow at the Centre for Human Rights and Global Justice at New York University’s School of Law
Feminist scholarly critique of transitional justice has emerged as a sub-sector and it draws on the idea that transitional justice can bring about political and social transformation in women’s lives. Feminist scholarship and gender equality advocates have talked about the transformation of women’s positioning relative to the post conflict moment.
From the 1990s, there has been an evolution of strengthened policy on gender equality from the UN. In the mid to late 1990s, policy had developed by looking at women in conflict and post conflict. The Beijing plan for action was adopted in 1995 and talked about the requirements for radical transformation between women and men. From 1997, the UN adopted a gender mainstreaming strategy as UN policy. All discussions afterward in any subfield talked about the need to have a gender analysis to look at the potential impact on men and women or women or men. More and more, there was an understanding of the need to take action to tackle inequality and not just observe it. Transformation can only come about if there’s a twin track approach; a strategy to observe and take specific action to address inequality.
Transformation is essential in transitional justice for women’s lives. We’re looking at the transformation of not just gender sensitive approaches but we want to end the inequality that caused it in the first place. There’s a recognition that transitional justice plays a utilitarian role in recognizing the need for political crimes to be recognized and making sure gender based crimes gets named. Crimes such as rape and sexual violence as crimes of war are distinct and we want it to be a reflection of ongoing crimes women face during and after conflict. There’s a need to highlight connections that women face before, after, and during conflict.
We want truth commissions to play a synergetic role to make sure broader harms are also named. What could this look like in practice? Sierra Leone was the first truth commission to make a link between preexisting inequality women faced before and during the conflict. They also linked this experience during conflict to women’s political, social, and economic role after the conflict. There’s a need to address structural inequality and rule of law reform needs to recognize these broader inequalities. Timor Leste’s report makes similar recommendation on the rule of law process. It makes a link between addressing domestic violence post-conflict to the violence women faced during the conflict and it make concrete recommendations on procedures for access to justice. This transition moment is a window of opportunity and can promote gender equality from a point of transformation to get at violence more broadly.
In Africa, research found that post conflict countries have twice as much legislation on women. Many are putting new reforms in the rule of law process and violence against women has become important. So where does the influence of transitional justice map onto rule of law processes taking place? A legal system is established in the long term after truth commissions have ended. So how do we conceptualize the harms recognized in truth commissions and the effect it has on how rule of law takes place?
When I talked to service providers in Liberia working with women and girls, they said there were a number of laws focusing on sexual violence, but they said domestic violence was the problem at home, not the kind of assault that happened in conflict. There’s a missing piece and there’s a need to understand what’s going on today more broadly.
Procedurally, feminist scholarship and advocates talk how to make sure women have access to justice and transitional justice mechanisms being set up. In the majority of places where alternatives are available, women go to informal justice mechanisms. When we talk about rule of law, often there’s an assumption that we’re talking about the formal legal system. But many places have informal systems and it plays a huge role in how access to justice plays out especially with violence. In Timor Leste, I sat in on truth commission hearings taking place and there the informal process was used to design and develop the truth commission and reconciliation process. It informed how they did community reconciliation and it brought up a known process with the Timorese population. But the informal justice system, primarily this one, discriminated against women. It worked to restore the natural order of things, which included the exclusion of women. So you have this space where women are slipping between rule of law and informal systems during transitional justice.
There’s a lot of weight put onto transitional justice as a holder of equality for women. But how do we expect one two year truth commission to bring about change for women? A lot of scholarship talks about making sure it doesn’t re-trench issues for women and there’s a big need to cut through the rhetoric on rights and look at the substance of what’s going on.
When justice for women is encapsulated and incorporated, it sends a message to the rule of law system on standards. This year alone, there were two Security Council resolutions specifically naming rule of law and transitional justice in relation to each other and the space to create more norms and thinking.
Dr. Jan van Zyl Smit: Research Fellow for Bingham Centre for the Rule of Law in London
“Vetting the Kenyan Judiciary: The urgency of institutional renewal in tension with the value of showcasing the rule of law”
Vetting in the context of the Kenyan transition
Transition in Kenya began in the early 1990s as the one party state was gradually dismantled. In the post election violence from 2007-2008, over 1,000 people were killed and several hundred thousands were displaced. An internationally mediated settlement created a power sharing mechanism until the 2013 elections. There were no domestic prosecutions for organizing the violence but eventually the ICC indicted 3 Kenyan defendants on charges of crimes against humanity.
The internationally mediated settlement of 2008 committed political parties to re-start the constitution making process with judicial reform an agenda item in its own right.
The Constitution of 2010 provided for a new supreme court, while the judiciary gained greater budgetary autonomy and ensured that the appointments process entrusted to the judicial service commission was not dominated by the executive. As a transitional measure, all judges and magistrates were to be vetted.
Creation of a Board to Vet Judges
The Vetting of Judges and Magistrates Act of 2011 provided for of 3 Kenyan lawyers (not current judges), 3 members of Kenyan civil society, and 3 common wealth judges. There were individual interviews to decide whether a judge was suitable, which was in private unless the judge opted for a public interview. In the case of an adverse decision, the judge could seek internal review by the board (not by the court). The Board’s criteria for suitability involved examining the past work record of judges and complaints from the public, professional competence, written and oral communication skills, integrity, fairness, temperament, legal and life experience, and a demonstrable commitment to public service.
Vetting is a transitional justice measure. It is a type of institutional reform and a recognized domain of transitional justice alongside prosecutions, truth commissions, and reparations. Vetting services transitional justice objectives by preventing the reoccurrence of human rights abuses, seeks the truth and provides accountability for past misconduct. It is widely recognized that institutional reforms, including vetting, gives rise to the bond between transitional justice and rule of law. However vetting the judiciary also had rule of law implications. Would judges be accorded due process? With the tenure of judges being made subject to vetting, would judicial independence be undermined? Would the process succeed in its rule of law objective – an impartial and effective judiciary in which the public could have confidence?
The Board sacked 4 out of 9 court of appeal judges found unsuitable and 9 out of 44 High Court judges (3 reviews are still pending). Overall, there was a removal rate of 25% and suspiciously little evidence of corruption. The Board’s approach was to seek due process especially with judicial independence. Vital to the Board’s rule of law objective was the rebuilding of public confidence in the judiciary.
Professor John D. Ciorciari, Assistant Professor at the University of Michigan
Presentation on Cambodia’s Hybrid Tribunal and Domestic Legal Development
Hybrid tribunal’s contribution to rule of law signals a commitment to combat impunity. In Cambodia, impunity was near total until the tribunal was created. Poll after poll showed general public support for the process despite many problems and failings. Although a truth commission was explicitly considered, it was decided against in Cambodia because there were too many dirty hands with incumbents and international actors. The court was created with limited jurisdiction and covered the senior leaders most responsible. The narrative is inevitably limited.
Creation of the Hybrid Tribunal in Cambodia
Due to geographic distance and the international composition, Rwanda didn’t have as many contacts with the local population and its judicial system. One of major rationales for creating a hybrid court was to put the legal proceeding in close proximity to survivors and the local apparatus. You could see in Cambodia whether the court was conducive to promoting rule of law because it was a domestic court. It is the only one to date created by an act of domestic legislature. It uses Cambodian procedures for proceedings and applies the laws domestically created and improves the application of those laws and procedures. While many see the tribunal as a model for others, my personal belief is that the ECCC’s (hybrid tribunal) positive impact is quite limited and its failings reinforce challenges in the rule of law movement in Cambodia.
Victim Participation in the Tribunal
In terms of victim participation, Cambodia has an innovative scheme based on the French civil system where victims can join proceeding as civil parties and request reparation. But this was created by judges as an internal rule, and not foreseen by donors. As a result it didn’t have a basis in the court’s funding plan and didn’t have funds for reparations. Parties could only get collective or moral reparations. Consequently, judges had to consolidate claims in later trials.
The courts own efforts weren’t provided with adequate funding. They had a difficult time fielding queries by victims. Outreach efforts focused on things making the most sense for donors as opposed to going out in the field and looking for ordinary survivors. By the time the court took shape, there was a robust international civil society to do much of field work to share information with the general public. Radio, TV shows, and museum exhibits helped people understand the process. Courts have also had success on the capacity building side. Previously, it was rare to have a zealous defense and put the government on trial. It has drawn attention by civil society organizations as a positive example has received a lot of attention in the press.
Development of the National Legal System
The prospect of relying on documentary evidence and other things didn’t feature widely in local domestic processes and this development was seen as positive. Judicial precedence was also written out, which didn’t happen domestically and judges learned how to do this and are now training junior judges. Some judges have taken their experience from the ECCC and applied it to domestic courts. The size of the local judiciary is so small that the potential for spillover effects is considerable in this context. Many prosecutors, judges, and others involved in the ECCC have high level positions in judicial system domestically. Most of positive aspects of development are at the technical level. Lawyers, for example have become more competent with their arguments and record keeping.
Challenges to Enforcing Rule of Law through the Hybrid Court
But rule of law in Cambodia with regard to the ECCC has still been problematic. A kickback scandal was never dealt with. Cambodians saw this as a sovereign issue and blocked the UN from investigating it. Corruption is a high level issue that still exists. Selective justice is another issue. The court started with narrow jurisdiction and the court interpreted it even more narrowly. The PM went on record to the media and said there would only be 5 defendants and no more. If you get the level where government is involved, it’s not rule of law, but rule by political power. It reinforces the notion that while rule of law may be improving in some respects, there’s still a threshold where rule of law doesn’t apply.
For hybrid courts to be effective, they have to be mandated and funded. The capacity to support rule of law through technical means is apparent, but more difficult to do is requiring a stronger stand by the UN and major donors to deal with continuing obstacles to rule of law that exists by nature of political power to the country.
One of the other major omissions people have observed about the court is that it lacked legacy and capacity building. The international community and donors pushed legacy building off to the Cambodian government and presently there is zero funding for it.