Acknowledgment of victims’ status as victims and victims as rights bearers

Arguably, the various transitional justice measures aim at providing recognition to victims. The type of recognition that is relevant is one that acknowledges the victims’ status as victims, the violations and the abuses to which they were subject, gives public space to their stories and tries to reverse the marginalization which they typically suffer. But this is not all. In fact, it is even more important to recognize their status as rights bearers.

 Report of the UN Special Rapporteur on the promotion of truth, justice, reparations and guarantees of non-recurrence

The UN Special Rapporteur on the Promotion of Truth, Justice, Reparations and Guarantees of Non-Recurrence, Pablo de Greiff, will present a report to the UN Human Rights Council on 25 October 2013.

In this mandate report, there is a strong focus on the transitional justice ‘pillars’ contribution to the development agenda and a recognition that transitional justice mechanisms ought to acknowledge the special status of victims and their rights accorded by international accepted norms and standards. The mandate report also draws quite extensively but not exclusively from the experiences of North African States and South American transitional justice mechanisms.

A summary of the report is produced below:

1. Deplores the view by States that the development agenda trumps justice needs in a post-conflict State. Tunisia is as an example where steady progress towards the realisation of the Millennium Development Goals did not give any indication of the human rights abuses in that country that led to the popular uprising.

2. Confronting human rights violations is necessary for the development of a post-conflict State. Two developmental challenges are juxtaposed against effects of human rights violations:

(a)   Adaptive preferences: adverse social conditions which diminish agency or the ‘capacity to aspire’ of a people. This social condition leads to poverty in society. Poverty is likened to victimization, which also diminishes dignity.

(b)   Social trust: trust between people influences growth and equity. This trust should also be reflected at the macro-political level between people, civil society and institutions of the State in post-conflict environments. Strong institutions of State that are trusted by other stakeholders in the State promote economic development.

3. Human rights violations undermine the concept of human development. The human development concept relates to the ‘can do’ or capabilities of a people. Human rights violations curtail these capabilities.

4. Transitional justice mechanisms (ought to) prioritize recognition of victims. The type of recognition that is most relevant is one that acknowledges their status as victims and that they have rights.

5. Contributions of transitional justice to development include:

(a)   Prosecuting human rights violations strengthens rule of law.

(b)   Truth commissions: have made recommendations to reform judicial systems which strengthen rule of law and subsequently the development agenda; gather information on victimization that lends support to economic reintegration of previously marginalized groups through specialized programmes. In this latter connection, a recommendation is made that truth commissions should have a wider mandate to investigate economic crimes, including corruption and exploitation of ‘conflict resources’.

(c)    Reparations programmes are extending beyond monetary compensation to distributory measures such as health care and education. These programmes are targeting collective or community reparations.

(d)   Vetting procedures in State institutions are a form of guarantees of non-recurrence. Security sector reform comes with the ‘peace dividend’ where security agents are not involved in human rights violations and security improves. This improvement in security levels in a post-conflict state reduces the cost of security responses therefore contributing in certain respects to the economic development of the State.

6. The report notes the question of reverse causality or dependence. Whereas a clear link is established between transitional justice pillars and their contribution to development, it is a reality that in order for a post-conflict State to embark on the pillars of transitional justice, developmental preconditions must be in place. Resources are required to conduct prosecutions, establish reparations programmes, and conduct vetting and institutional reform among other transitional justice initiatives. The question of the ‘how’ still needs to be explored.

7. Key recommendations include:

(a)    States should renounce the rhetoric and avoid actions that reduce justice to developmental programmes. The Special Rapporteur further urges States not to reduce justice merely to stable institutions and a productive economy, and to renounce strategies that indefinitely postpone justice under the excuse of achieving economic growth first.

(b)   The Special Rapporteur encourages the incorporation of goals on access to justice and remedy in the post-2015 development agenda.

(c)    The Special Rapporteur encourages development promoters to heed the lesson that justice, security and development are linked to one another and, specifically, that in the absence of justice; neither security nor development can be fully realized.

(d)   The developmental significance of transitional justice measures lies in the possibility of fulfilling the normative expectations of victims of past human rights violations as well as others, thereby contributing to strengthened agency, capacity to undertake coordinated action and the participation of victims and non-victims in developmental processes. In this context, the Special Rapporteur urges States to adopt a comprehensive transitional justice approach. Implementing such programmes requires funding and capacities, some of which will require international support.



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