Transitional Justice
Expected Council Action
In February, the Council is expected to hold an open debate on transitional justice at the initiative of Belgium. The open debate will be held under the broader agenda item “peacebuilding and sustaining peace” and a concept note will be circulated ahead of the meeting. Belgium’s Foreign Minister, Philippe Goffin, is expected to preside. At press time, no outcome was anticipated.
Background and Key Recent Developments
While the Security Council has considered transitional justice indirectly in various contexts over the past several decades, the open debate in February will be the first time the Council holds a meeting on transitional justice as a thematic issue. The open debate is expected to focus on how the Security Council can better support transitional justice initiatives in country-specific contexts. In this regard, a central aim is for those member states with experience in dealing with transitional justice initiatives to share their views, including lessons learned.
A 2004 report of the Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies defined that term as a “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, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof”. In 2010, the Secretary-General issued a note providing the guiding principles and framework for the UN’s approach to transitional justice processes and mechanisms. It outlines key components of transitional justice and ways to further strengthen these activities.
Since 2005, the Council has used the term “transitional justice” in resolutions across several different country-specific issues on its agenda. These include Afghanistan, Burundi, Central African Republic, Democratic Republic of the Congo and Yemen.
The Human Rights Council (HRC) has been particularly engaged on the issue of transitional justice. In 2011, the HRC adopted resolution 18/7 which decided to appoint a special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence. The position is currently held by Fabian Salvioli (Argentina). The Office of the High Commissioner for Human Rights is a lead entity within the UN system in this area, including assisting with developing standards and operational tools and designing and implementing transitional justice mechanisms.
On 19 November 2019, at the initiative of the UK, the Council held an open debate to discuss the role of reconciliation in maintaining international peace and security, at which transitional justice was referred to. Secretary-General António Guterres; Alpaslan Özerdem, dean of the School for Conflict Analysis and Resolution at George Mason University; and Ilwad Elman, director of programs and development at the Elman Peace and Human Rights Centre, briefed. The Secretary-General referred to the effective use of transitional justice mechanisms, including truth and reconciliation commissions, in Guatemala, Sierra Leone, Timor-Leste and elsewhere. “Transitional justice must be transformative justice that addresses gender imbalances, is rooted in local realities and is based on broad consultation”, he said, adding that throughout the world, “the UN supports nationally led and victim-centred transitional justice processes.” Member states discussed their own experiences with reconciliation mechanisms. There was also an emphasis on the need to adapt to increasingly complex situations and ensure inclusivity at every stage.
Key Issues and Options
Some key issues that may be considered at the open debate include the following:
- how to increase the effectiveness of the Council’s engagement on the issue, including lessons learned in various contexts;
- how best to support transitional justice initiatives in country-specific contexts, including local initiatives;
- how to integrate effectively transitional justice considerations into the Council’s work, both in relevant country-specific contexts and across thematic areas, such as in relation to the women, peace and security agenda and the children and armed conflict agenda; and
- how to support victims and civil society as active participants.
An option for the Council is to invite civil society representatives involved in transitional justice processes to brief. Another option would be for the Council to adopt a presidential statement on the issue, subsequent to and informed by the open debate. Belgium could also choose to produce a chair’s summary that would reflect the themes of the open debate.
Council Dynamics
It seems Council members are generally supportive of Belgium’s initiative and its approach, which seeks to facilitate a broad discussion of the issue. At the open debate on reconciliation on 19 November 2019, several members referred to transitional justice. Belgium highlighted the presidential statement adopted on 6 October 2004 on post-conflict national reconciliation and referred to the contribution of transitional justice to reconciliation efforts as well as the possibility of conducting “a broader review in order to identify some key principles for guiding the Security Council in its future decisions in this area”. It added that “transitional justice is a tool that the Council should continue to consider as part of its mandate to maintain international peace and security”.
Also, the UK noted at the November 2019 debate how “transitional justice mechanisms can support persecuted people and lay the foundations for peace”. It also emphasised the need to engage and involve women and for the Council to monitor reconciliation processes. South Africa said transitional justice processes must respond to the specific context of the country concerned. It also underscored that “the whole spectrum of transitional justice needs to be explored, including truth commissions and reparations for victims”, as well as the need to take into account community-based or traditional justice mechanisms and ensure women and youth are represented. Germany also stressed women’s participation, and the Dominican Republic underscored the involvement of youth. While not referring to transitional justice specifically, Russia expressed the view that the UN should focus on cooperation with governments, that “ready-made solutions from outside” should not be imposed, and that the work of international criminal justice institutions in the context of post-conflict reconciliation “should not be considered the last word”.
| Security Council Presidential Statements | |
| 6 October 2004S/PRST/2004/34 | This statement expressed the Council’s intention to consider the matter of justice and the rule of law in conflict and post-conflict societies within six months and asked the Secretary General to make proposals for rapid implementation of the recommendations made in the Secretary-General’s report of 23 August on strengthening United Nations support for transitional justice and the rule of law in conflict and post-conflict countries. |
| 26 January 2004S/PRST/2004/2 | This statement was on post-conflict national reconciliation asked the Secretary-General to give consideration to the views expressed in the 26 January open debate in the preparation of his report on justice and the rule of law. |
| Secretary-General’s Report | |
| 23 August 2004S/2004/616 | This was the Secretary-General’s report on the rule of law in conflict and post-conflict societies. |
| Security Council Meeting Records | |
| 19 November 2019S/PV.8668 | The Council held an open debate to discuss reconciliation. There was also an emphasis on the need to adapt to increasingly complex situations and ensure inclusivity at every stage. |
| 26 January 2004S/PV.4903 | This was an open debate on the role of the UN in post-conflict national reconciliation. |
| Other | |
| 31 March 2010UN Approach to Transitional Justice | This was a guidance note of the Secretary-General on transitional justice. |
