Message by Ms. Navanethem Pillay at the Special Summit of the African Union

22 October 2009

 

Dear Colleagues,

Ladies and Gentlemen,

 

I regret that I am not able to attend in person the Special Summit of the African Union. I welcome this opportunity to offer my reflections on the topic of reconciliation and post conflict reconstruction. 

 

As a South African and a jurist, “dealing with the past” and working towards “reconciliation” has been a recurrent theme and imperative of my professional life. My country has confronted and has tried to heal the wounds that history inflicted on its divided people. 

 

There is no single model of reconciliation. Reconciliation seeks to overcome divisions and to build trust within societies recovering from conflict or repressive rule. Reconciliation cannot become a space for impunity where victims carry an imposed burden of forgiveness. Any efforts in this direction must respect the victims’ rights to justice, to know the truth, and to reparations. 

 

Similarly, the post-conflict reconstruction efforts should seek to re-establish the confidence of citizens in the public institutions which have direct bearing on the protection of their rights. Transitional justice initiatives aim to build trust among victims, society and the State through measures that provide an acknowledgement to victims and redress for the rights that have been violated.

 

How countries deal with the legacy of the past in order to achieve reconciliation goes beyond the exceptional mechanisms of transitional justice. Societies need to address the underlying causes of conflicts and repressive rule. Peace agreements and constitutions offer key opportunities for addressing the root-causes of societal strife and for enshrining protections of all rights, including economic, social and cultural rights. Effective and accountable disarmament, demobilization and reintegration efforts can also encourage trust and confidence between ex-combatants, society and the state, and thus contribute to reconciliation and post-conflict reconstruction.

 

Undoubtedly, assisting societies devastated by conflict or emerging from repressive rule to deal with their past, to achieve reconciliation and post conflict reconstruction is an endeavour which requires the right “doses” of sensitivity, knowledge, and ability to deliver durable results. This task must be performed in a context marked by broken institutions, exhausted resources, diminished security, and a traumatized and divided population.

 

The long experience that the United Nations has acquired over the years is of great value and, indeed crucial significance, in a transitional environment in which ensuring accountability, justice, reconciliation and post-conflict reconstruction is a priority of the tallest order. 

 

As the work that my Office performed in supporting transitional justice programmes in more than twenty countries shows, this assistance encompasses the development of standards and best practices, guidance in the design and implementation of transitional justice mechanisms, and—crucially—initiatives and advocacy to ensure that human rights and transitional justice considerations are reflected in peace agreements. 

 

OHCHR is dedicated to supporting societies emerging from conflict or from repressive rule. We seek to enhance options available to them to address justice and seek reconciliation during the transition period.

 

 

Moving now to the topic of the state of international standards in the field of transitional justice, I wish to underscore that the UN Charter, together with international human rights law, international humanitarian law, international criminal law and international refugee law provide a solid normative basis to frame transitional justice initiatives. These include the duty to undertake investigations and prosecutions of gross violations of human rights and serious violations of international humanitarian law which constitute crimes under international law. 

 

International law also recognizes the right of victims to reparations, and their right to know the truth about violations, as well as guarantees of non-recurrence of violations. These international standards should guide the States’ action in this area and set the normative boundaries of UN engagement.

 

My Office has been supporting coherent and comprehensive approaches to transitional justice, comprising a broad range of both judicial and non-judicial processes. Our work focuses on victims and their needs. As such, national consultations with a broad range of stakeholders are critical elements of the human rights-based approach to transitional justice which regards public participation as a key component of successful programmes.

 

 

In the past, peace and justice were presented as incompatible goals. The dilemma was thought to be between securing peace with the cooperation of perpetrators of human rights violations or addressing justice at the cost of perpetuating conflict.

 

In recent years, however, this perceived tension between peace and justice has been gradually dissolving. There has been a growing recognition that, when properly pursued, peace and justice can promote and sustain each other. Indeed, peace and justice are increasingly—and rightly—seen as inter-dependent and mutually reinforcing. The persisting dilemma concerns rather the extent of national mechanisms’ ability and determination to bring the alleged perpetrators of international crimes to justice. While much progress has been made in acknowledging that peace and justice go hand in hand, we cannot be complacent. 

 

The growing acceptance of the compatibility of peace and justice is reflected in current international law and UN policy on amnesties. Amnesties are impermissible if they prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity, and gross violations of human rights. Our work in this area aims at safeguarding a space for justice both during and after peace processes. 

 

Experience shows that the simultaneous pursuit of peace and justice is not only possible, but indispensable to make progress sustainable. Indeed, accountability has proven to be an important ingredient to combating violence. States which brought those accused of human rights violations to trial have subsequently prevented or reduced the recurrence of such violations. 

 

Recent peace agreements reflect developments in international law with respect to amnesties and accountability. Blanket amnesties have been less pervasive in recent years, and a growing number of agreements now contain provisions for transitional justice. 

 

It is crucial, therefore, that mediators continue to support the inclusion of commitments to combat impunity and to uphold the protection of human rights in peace agreements. To do so effectively and persuasively, they must be equipped with relevant human rights knowledge during peace negotiations. 

 

 

Societies in transition often neglect to address those violations of economic and social rights that occurred during the conflict and that are often at the very roots of violent strife. OHCHR has been exploring ways in which transitional justice mechanisms can more comprehensively examine violations of economic, social and cultural rights, as well as civil and political rights. Truth commissions can be used for this purpose whenever appropriate. Case law of international, regional and national courts has helped to clarify the nature of State’s obligations to combat impunity for serious violations of economic, social and cultural rights. Reparations programmes also provide opportunities for redressing the needs of victims in the areas of health, education and economic welfare. 

 

Inclusion of a gender perspective also widens the scope of transitional justice and offers the possibility of addressing potential imbalances at the very beginning of a reconstruction process. Gender inequality is one of the most pervasive forms of societal inequality and is often exacerbated by conflict. Transitional justice mechanisms that incorporate a gender perspective, such as prosecution initiatives that punish those responsible for committing sexual violence during conflict, or consultations with women to determine their priorities for transitional justice initiatives, can help ensure that oppression or maltreatment of women is not perpetuated into the future and that transitional justice appropriately addresses the rights and perspectives of women.

 

 

Ladies and Gentlemen,

 

An important component of post-conflict reconstruction is the disarmament, demobilization, and reintegration. Effective and accountable processes that take weapons out of circulation and integrate former combatants into society, present massive challenges but are essential. 

 

In sum, a human rights approach is vital to securing lasting justice, reconciliation and post-conflict reconstruction. The mechanisms and expertise to pursue it and absorb it when confronting the past, seek reconciliation and post-conflict reconstruction are available. States should make full use of them. I look forward to our discussion on how to better facilitate this endeavour.

 

Thank you.