High Commissioner's opening address on the Rule of Law Tools for Post Conflict States to the Transitional Justice Workshop

Rule of Law Tools for Post Conflict States

27- 29 September 2004
Geneva - Switzerland


Dear friends and colleagues,

It is a pleasure to welcome this distinguished gathering of experts to discuss, over the next three days, issues that are of acute relevance to many societies emerging from conflict.

I am struck by the enormous challenge that these communities face. They need to deal with the past, present, and future to build not only institutions, but also morale, self-esteem and the collective will to live together in peace. The task becomes even more difficult as the conflict itself often isolates the country and drains its brain power. Even after the conflict ends, communities sometimes remain divided. They continue to search for identity, justice and a sense of belonging. They need help – real, meaningful and thoughtful help that respects their experience, upholds their rights and dignity and assists them in going forward. Our initial contribution should be to assist these communities in making choices that are appropriate for their particular circumstances.

Every conflict is specific and could be seen as a unique human experience. Yet, there are many similarities in the challenges that occur in the aftermath. There is a role for the UN system in identifying patterns and challenges, commonalities and differences, solutions that worked and those which did not work, so we can move forward.

This is why I am pleased that you are gathered here today. Your task is to discuss and sharpen the options that can be placed at the disposal of post conflict societies in their efforts to establish the rule of law and respect for human rights. We need to turn these options into practical and accessible tools. The papers you have before you present some of those options in draft form. We need your critical feedback on each of them. These tools draw on experiences from UN peacekeeping operations, particularly recent missions in the Balkans, Sierra Leone and East Timor.

Those experiences indicate that countries emerging from conflict and crisis inevitably face erosion of the rule of law, inadequate law enforcement and administration of justice as well as increased vulnerability to human rights violations. This situation is often exacerbated by a lack of public confidence in state authorities and a dearth of resources. It is essential to establish a governing administrative and justice system premised on respect for the rule of law and the protection of human rights. An effective and democratic transition also requires a coherent approach to criminal justice reform, including meaningful support of domestic reform constituencies, if they exist. Ensuring that respect for human rights takes hold, both in legal institutions and the population at large, requires a continuous and coherent engagement by all stake holders and the international community.

This is a commitment of the UN family as a whole, not only of my Office, as the Secretary General recently emphasised in his 3 August 2004 report to the Security Council on rule of law in conflict and post conflict states (S/2004/616). I am therefore particularly pleased that several UN departments and agencies are represented here today. Our priority is to develop sustainable, long-term institutional capacity within UN field presences and transitional administrations to respond to the demands in the area of transitional justice. The draft tools you will be considering at this workshop are the beginning of that process.

Let me now briefly turn to some of the issues you will be discussing.

One of the greatest challenges in the aftermath of a conflict is the question of accountability for serious human rights violations. Day after day, conflict after conflict, we are learning that even with the lapse of time, victims continue to demand that the legacy of massive human rights abuses is effectively addressed. The cases that have recently been brought before various national courts in Latin America, stand as a testament to that. This is why judicial accountability for international crimes should always remain a real option.

The movement towards accountability through prosecutions and the rejection of impunity is, in my view, irreversible. The preference for doing nothing is no longer an option. We now have a framework of international criminal law and institutions that operates at both the international and domestic level. This system has culminated with the creation of the International Criminal Court, whose statute is now ratified by 97 States. This historic institution will no doubt build on the contribution of the two ad hoc tribunals for the former Yugoslavia and Rwanda that continue to articulate many essential aspects of international criminal law.

The ICC Statute is particularly relevant as it is based on the principle that international prosecution complements national efforts. It encourages the emergence of national judicial systems that are willing and capable of prosecuting these crimes in accordance with international standards. The message is clear: there must be no impunity for those who commit war crimes, crimes against humanity or genocide. Arrest, fair trials and punishment await the perpetrators of these most serious crimes. As international criminal law is continuously evolving, concerted efforts are needed to ensure that national judges are familiar with recent developments in this area.

The key issue in the application of the principle of complementarity is that the national system must be able and willing to deliver justice. This is not a small requirement. Judges of ICTY, for instance, have been asking its prosecutor to provide proof that the national system would provide all necessary legal and technical conditions for fair trials, before approving requests of transfer of suspects to national jurisdictions.[1]

And we should not underestimate the challenges associated with investigating and prosecuting international crimes. Trials of such crimes take time. In the international context, the inevitable tensions between speedy and efficient justice on the one hand, and the right to fair trial on the other, are exacerbated. The prosecution often entails complex evidentiary requirements which are hard to meet if the evidence was not properly preserved at the outset. Witness testimony may become problematic when the story is told many times over many years. And we need to think carefully about the interest of victims and survivors and the protection of witnesses. This is why it is essential that we assess appropriately the quality and capacity of the national justice systems.

To the extent that courts may not have the capacity to prosecute all international crimes, we also need to think of alternative approaches. After all, the punishment of every offender may not be necessary to achieve respect for the rule of law. While societies may demand a full and impartial narration of the past, this need not be achieved through trials alone. Collective memories are not constructed and consolidated only in courtrooms. Take the experiences of Timor Leste and Sierra Leone. There, the prosecution of international crimes is complemented by the truth and reconciliation processes. Combining special courts with truth and reconciliation processes, has the potential of ensuring that there are broader options for accountability.

Many are critical of approaches that do not offer full justice. One of the most critical issues is the relationship between truth processes and various prosecution strategies. The credibility of these exercises no doubt depends on their quality and their attention to the needs of victims and survivors.

The decision of how to go forward on these issues must be first and foremost nationally-owned and, if at all possible should be taken as a result of a thorough and real consultative process, rather than as a choice imposed by some. Whatever option is selected, be it prosecutions by international tribunals or mixed tribunals, vetting, reparations or truth commissions, or a mixture thereof, in my view, the choice should be one that does not close the door altogether on criminal responsibility.

This brings me to the issue of amnesties. I fully believe that any amnesty that could be granted must be within the framework of law. In 1994, the United Nations Human Rights Committee, in its General Comment No. 20 on Article 7 of the International Covenant on Civil and Political Rights, which deals with torture, stated the following: "The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.”

During the 1990s some national courts rejected challenges to amnesties that prevented punishment of serious crimes. Part of the problem was an expansive interpretation of Article 6 (5) of Additional Protocol II to the Geneva Conventions that applies to internal armed conflict, and which permits amnesties. This has now been rectified. Recent decisions by various tribunals have reaffirmed the incompatibility of amnesties that lead to impunity with the duty of States to punish serious crimes under international law, particularly war crimes, crimes against humanity or genocide. I recall, for instance the ICTY decision in the Prosecutor v. Furundžija.[2] This principle was repeated by national and regional courts, as Professor Diane Orentlicher, now the UN Independent Expert to update the set of principles on impunity and with us today, demonstrated in the excellent study that she undertook on behalf of the Secretary-General last year (E/CN.4/2004/88). She also showed how several countries like Argentina, Chile and Poland, have abrogated amnesties that violate their international legal obligations or have restricted their application.

So when developing approaches to transitional justice, it is imperative that we remain within the parameters of law. The credibility of any system of accountability lies in its independence, fairness, and its respect for victims. And when we think of these issues, we should be skilful in identifying the right approach since it is very difficult to reverse course once you have opted for one model over another.

Dear friends and colleagues,

These are not the only challenges that we face in the immediate aftermath of conflict. With the formal end of hostilities, the dynamics often shift. Revenge attacks, looting, and rampant crime often occurs. As national protection systems are often weakened or non-existent following the conflict, there is a need to think of solutions for the short and medium term.

A significant challenge faced by UN missions has been identifying, enforcing and clarifying the state of law. Many basic questions immediately surface: what is the law, how to approach aspects which contravene international human rights standards, and what to do where the law fails to address legal issues necessary for the post conflict context. These questions have often been coupled with logistical and technical issues, such as how to find and compile copies of laws in all relevant languages, how to provide for dissemination of these laws and how to ensure meaningful consultation with the public on law reform. These concerns were clearly acknowledged by the UN. In 2000, a UN panel appointed by the Secretary General issued a report,[3] which included a reference to international approaches to the applicable law in post conflict states. The panel’s report, widely known as the Brahimi report, included a recommendation for a “quick start” package of laws that would enable peace support operations to provide an effective justice system within a short time of the establishment of an international mission. I commend the efforts of the United States Institute for Peace (USIP) and the Irish Center for Human Rights of the University of Galway who have developed a set of model codes, covering penal, procedural, police and detention laws, based on a cross-cultural model that builds upon the best of the world’s legal systems, without manifesting a preference for any particular system, and which can be used for a wide range of purposes in post conflict missions. OHCHR has been supportive of these efforts.

Let us also not forget the long term. Creating effective and lasting legal and judicial institutions that uphold the rule of law is essential for the maintenance of peace. In some post conflict states, the UN has been heavily engaged in capacity building activities vis-à-vis national judges, prosecutors and defenders for more than five years. In instances where international legal actors have direct involvement in criminal cases, the results are mixed. In Kosovo, the most serious criminal cases are still being tried exclusively by international judges and prosecutors with little or no local judicial or prosecutorial involvement. As a result, the legal skills of local legal actors are further marginalized. We must find ways to transfer more effectively our capacity building skills so as to better establish society’s respect for legal institutions and the rule of law. In sum, the UN needs to undertake a substantive assessment of its current training methodology and general capacity-building techniques in all justice-related activities, so as to ensure a lasting legacy. Effective outreach programmes are also essential to ensure that citizens are aware of important developments in respect of prosecution of international crimes. There is an important role for institutions of civil society, particularly human rights NGOs in this field.

Friends and colleagues,

Though this meeting will inevitably draw on the many lessons learnt from UN experiences in post conflict states, it should move from a dialogue on lessons learnt to the actual creation of relevant and effective rule of law tools that address the needs of both UN personnel and national actors engaged in the issue of transitional justice. I like the term “tools”, as it places emphasis not only on what needs to be done, but also on how to do it. For me, what is essential is that you focus on how to make these experiences accessible to those who need it most.

This is why I am pleased that OHCHR has launched a two-year project to enhance its capacity in the area of the transitional justice, including truth and reconciliation processes, and the role of international criminal law in post-conflict countries. The primary output of the project is an Operational Manual, which addresses the key needs identified through the project’s assessment missions, for practical use by field missions and transitional administrations in post-conflict states. The seven draft tools that you are analyzing are not intended as an exclusive or exhaustive list of the models required for post conflict states, but they are an important starting point.

And this project does not operate in a vacuum. It comes as part of our emphasis on consolidating our work in the area of rule of law and democracy in general. This is a priority for our office and we have recently strengthened the capacity of a specialized Unit to deal with these issues within our Research and the Right to Development Branch. This is why this workshop is an important point of departure for OHCHR.

I wish you a successful meeting. Good luck!

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[1] See, for instance, updates on MEJAKIC et al. Case, ICTY WEEKLY UPDATE – 329, 24 September 2004.

[2] In this case, the ICTY discussed at length the applicability of Additional Protocol II. It further considered the issue of amnesties; PROSECUTOR v. ANTO FURUNDZIJA, Judgement of 10 December 1998), para 155.

[3] Comprehensive Review of the Whole Question of Peacekeeping Operations in All their Aspects, U.N. Doc. A/55/305-S/2000/809 (21 August 2000).