Transitional justice: Central to fighting impunity

Written by Ionel Zamfir.

Ending impunity for serious crimes against human rights and humanitarian norms is an important EU and United Nations objective. It is essential in overcoming the legacy of past conflict and building the basis of stable, peaceful societies, as shown by the experience of societies that have taken this path in recent decades. The EU has developed a comprehensive approach to help non-EU countries implement transitional justice.

Historical background

The field of transitional justice emerged in the late 1980s and early 1990s, in response to the political transitions that took place during that time in Latin America and Eastern Europe. The implementation of transitional justice measures depended on the national context, varying greatly, e.g. among former communist regimes. Today, the focus of transitional justice mechanisms has moved to countries afflicted by conflict in Africa and Asia. The International Criminal Court (ICC), established in 2002, aims to complement national systems where these are unable to bring to justice for serious crimes those in the highest positions of responsibility. Transitional justice aims both at holding those responsible for serious crimes to account and providing redress to victims, as well as at building fairer and resilient justice systems able to secure reconciliation and the transition to democracy. It includes several measures:

Prosecution of leaders and high officials of former regimes: communist leaders in some eastern European countries and leaders of military juntas in Latin America (Argentina 1985 verdict, Guatemala 2013 verdict, finally invalidated), faced justice in their countries, while others – former presidents of Serbia (died before conviction), Côte d’Ivoire (acquitted) and Kosovo (ongoing), stood trial in international tribunals.

Prosecution: independently of rank, of perpetrators of grave crimes, particularly genocide: Rwanda. (1994).

Lustration policies: including vetting procedure before holding public office: these were central to the efforts of former communist countries in Europe (such as Germany, Czechia and Estonia), in overcoming their past and building stable democracies, but they were not free of judicial controversy regarding the concordance of lustration laws with human rights.

Truth initiatives: ranging from the opening of secret services archives (as in former communist countries) to the Truth Commission in South Africa, (1995), while in Cambodia in 1995, a non-governmental organisation (NGO) assumed the task of preserving the memory of genocide.

Rehabilitation and redress: for those convicted on political grounds or for persecuted groups.

Amnesty: the most controversial approach to transitional justice, as it precludes justice for victims, can be instrumental in ending bloody conflict. However, amnesty cannot apply in serious crimes against humanity and other similar crimes, as made clear in the landmark decisions of the Inter-American Court of Human Rights. In Latin America, amnesty was granted broadly to allow transition, but amnesty laws were later struck down for grave crimes in Argentina (2003), Guatemala (1996) or Peru (2019), although not in Brazil.

United Nations framework

For the United Nations, according to the numerous documents adopted by its various fora, transitional justice ‘comprises the full range of processes and mechanisms associated with a society’s attempts 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’. This definition is broadly used, including by the EU. The UN has developed a comprehensive approach to transitional justice based on four pillars: truth, justice, reparation, and guarantees of non-recurrence. According to a 2022 report from the Office of the High Commissioner for Human Rights (OHCHR), transitional justice should be ‘context-specific, comprehensive, victim-centred, gender-sensitive, participatory and nationally owned’. Moreover, transitional justice is expected to contribute to peace and reconciliation, an aspect underlined in the most recent resolution on the topic by the UN Human Rights Council (UNHRC). The UNHRC considers that transitional justice processes, including the promotion of truth, justice, reparation and guarantees of non-recurrence, can prevent a repeat of past atrocities or similar violations and contribute to sustainable peace.

European Union action

Closing the accountability gap, fighting impunity and supporting transitional justice is among the priorities of the EU action plan on human rights and democracy for 2020-2024. According to the specific actions outlined under this objective, the EU commits to support national-level initiatives and transitional justice processes for fighting impunity for human rights violations. The EU further commits to engage with international justice mechanisms, such as hybrid UN tribunals.

The EU High Representative/Vice-President and European Commission developed an EU policy framework on support to transitional justice, which was endorsed by the Council in its conclusions of November 2015. The framework provides guidance for both EU institutions and Member States, based on main UN elements:

• criminal justice: the EU supports the reform of national criminal legislation, as well as initiatives to develop prosecutorial and judicial capabilities, adequate legal defence, and long-term protection and assistance for witnesses and victims; the EU further supports alternative ways (mediation or traditional courts) to provide justice; it supports the ICC;
• truth: the EU promotes truth-seeking initiatives based on international law and best practice;
• reparations: the EU encourages a participatory, victim-focused approach to reparations;
• guarantees of non-recurrence/institutional reform: the EU provides support to security and justice sector reforms, with the objective to establish civilian control, governance and security force accountability. The EU encourages the adoption of vetting procedures and codes of conduct, in accordance with international human rights standards.

The framework also emphasises that transitional justice processes must be nationally and locally owned and inclusive; adapted to the needs and specificities of the local communities and countries concerned; they must comply with international norms and standards; and must be gender and child sensitive. The EU opposes amnesties for war crimes, crimes against humanity, genocide or gross violations of human rights, in line with the UN position. According to the framework, the EU should integrate its support for transitional justice in its crisis response and peacebuilding; and in development and enlargement policies.

The EU is an important player in the field of transitional justice. The EU supports the ICC; it helps countries in situations of fragility; it implements a comprehensive approach to external conflicts and crises; it integrates the pursuit of transitional justice in its common security and defence policy (CSDP) missions, and provides financial support for transitional justice initiatives and related issues. Transitional justice is among the priorities of multiannual indicative programmes jointly agreed with partner countries including Burundi, Central African Republic, Colombia, Rwanda, South Sudan and The Gambia, as well as among the priorities for the implementation of the EU thematic programme on human rights and democracy, both funded by the Global Europe Instrument. Transitional justice is also integrated into EU enlargement policy, where the Commission’s annual reports assess progress in this respect. The EU annual report on human rights and democracy provides specific examples (see 2021).

Read this at a glance note on ‘Transitional justice: Central to fighting impunity‘ in the Think Tank pages of the European Parliament.