3.10 Transitional Justice
Transitional justice refers to
“a range of processes and mechanisms associated with society’s attempt to come to terms with a legacy of large-scale past abuses in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with varying levels of international involvement, or none at all. Individual prosecutions, reparations, truth-seeking, institutional reform, or a combination of these functions, may form part of the processes.”33
Transitional justice efforts involving historical and long term human rights violations pose particular difficulties for NHRIs, in part because of the historical aspects of looking into matters for which the evidentiary record may be weak or non-existent. Transitional justice also engages a number of difficult political issues, including amnesty, impunity and implications for current political stability.
Whether a NHRI has responsibility for transitional justice will depend on its enabling statute or on other legislation that may confer additional powers. Some NHRIs only have the power to deal with matters that arise from the time that the institution is created, while others have a broader mandate to address past abuses. A number of NHRIs have themselves been established as part of institutional reform in the transitional justice process.
NHRIs can play an important transitional role in ensuring accountability and combating impunity by documenting and investigating violations of international law. NHRIs can monitor and record violations during both conflict and authoritarian rule and transitional periods. These efforts can support future prosecution initiatives, truth seeking and truth telling bodies, reparations measures and vetting processes. NHRIs can assist victims by ensuring that they have equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. NHRIs can also assist victims and witnesses with measures such as relocation and resettlement.34
In some countries, the NHRI itself may not have the mandate to undertake the transitional justice process, but may nevertheless work with and comment on the work of other situations, to ensure that human rights are respected.
Example: NHRI Role in Transitional Justice in Rwanda
In Rwanda, several government institutions were established to support reconciliation and transitional justice after the 1994 genocide. The Unity and Reconciliation Commission has a lead in promoting awareness of reconciliation through public programs.
The National Human Rights Commission, plays a cooperative role in reviewing these processes on an ongoing basis, including attending and preparing reports on human rights aspects of many of these processes.
33 Report of the Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies, S/2004/616[0], paragraph 8.
34 Adapted from the OHCHR Guidance Note on Transitional Justice, September 27 2008.