In Hindsight: The Role of the Security Council in Transitional Justice
Transitional justice is a complex and abiding issue in the aftermath of conflict or systemic oppression. International practice suggests—and experts generally agree—that understandings and definitions of transitional justice differ, depending on the context, and that there is no universal model. Acknowledging the breadth of transitional justice is helpful to seeing the variety of political and practical entry points to the issue.
In late October, Security Council Report released its first research report on transitional justice, titled Transitional Justice: What Role for the UN Security Council? The report aims to contribute to a better understanding of how the Security Council has positioned itself on transitional justice issues. It outlines elements that are at play in Council decisions on transitional justice, notably its understanding and perception of country-specific situations and the timing and sequencing of its actions. It also emphasises the powerful political considerations at work when the Council grapples with this issue. Drawing principally on five country situations (Burundi, Colombia, Central African Republic, Sierra Leone, and South Sudan) and two expert seminars, the report discusses examples of how the Security Council has approached transitional justice and sets out recommendations on optimising its engagement.
The Security Council has considered aspects of transitional justice and included it in Council mandates since the early 1990s. The Council has viewed transitional justice as a core element of conflict-affected states’ efforts to build and sustain peace, and tended to signal its support for holistic, gender-sensitive and inclusive transitional justice efforts. Perhaps most notably, Council members have recognised that approaches to transitional justice need to be context-specific, tailored by each country to its needs and traditions, with external actors supporting national processes through political support, funding or technical expertise.
Over the past three decades, the Council has associated transitional justice with a wide range of positive outcomes. These include:
- preventing the recurrence of conflict,
- strengthening accountability,
- building more effective justice and security institutions and national human rights bodies,
- promoting reconciliation,
- supporting truth-telling,
- enabling national dialogues,
- addressing the root causes of conflict, and
- promoting development and prosperity.
In analysing patterns of Council decisions and actions on transitional justice, our report identifies what might be termed “push and pull” factors affecting its approach to the issue. These include Council members’ political considerations, national-level commitment to transitional justice processes, national-level openness to Council involvement, the Council’s attempt to strike a balance between national ownership and international engagement on transitional justice, and the inevitable ebbs and flows in Council attention.
Some general conclusions can be drawn from these “push and pull” factors, as reflected in our case studies.
First, geopolitical dynamics, rather than a clinical evaluation of good practice, often dictate the content of a decision—on transitional justice, as on other Council matters; at other times, different perspectives on what constitutes good practice and on how to achieve sustainable peace in a particular situation can lead to seemingly inconsistent practices.
Second, the Council appears most inclined to support transitional justice measures where these are promoted by the country’s authorities and where specific transitional justice mechanisms have been agreed upon by the parties involved, whether in a peace agreement or a separate national agreement. It has been important for the Council to see that a genuine effort exists from national authorities to make transitional justice processes work, as in Colombia and Sierra Leone.
Third and relatedly, the Council has broadly been more willing to approve UN support for transitional justice initiatives in its mandating of UN peace operations when the request comes from the host country, as in the Central African Republic and Colombia.
Fourth, the Council’s pursuit of transitional justice measures may sharpen in response to violent incidents: in requesting the establishment of an international Commission of Inquiry in Burundi in 1995 following the assassination of President Melchior Ndadaye and the ensuing violence between the Hutu and Tutsi ethnic groups, for example, and in the Central African Republic in 2013 when the overthrow of the government by the Séléka rebel group set off widespread sectarian violence and serious human rights violations.
Fifth, while the Council has, in several cases, maintained attention to transitional justice even as conflict raged, it may shelve that focus to concentrate on immediate humanitarian and political crises, as has happened in South Sudan and Burundi.
Drawing on the Council’s approach to transitional justice as presented in our case studies, as well as broader research, the report offers several recommendations for optimising the Council’s engagement with transitional justice processes.
The Security Council should continue to emphasise the importance of transitional justice in the mandates of UN peace operations, and its other outcomes, underlining relevant standards of justice and accountability. It should also continue to support comprehensive approaches to transitional justice, in which the diverse elements complement one another, and to encourage national authorities to articulate their goals for, and commitment to, transitional justice. However, the Council is not best placed to provide detailed guidance in its peace operations mandating on the forms transitional justice should take in a given country situation, nor need it do so: far more important than excessively detailed mandates is a process of strategic planning and consultations, with Council members as well as within the UN Secretariat, leading to mandates that signal overall goals for the country.
In addition to peace operations mandates, other Council products, and members’ statements, the Council’s primary tools include establishing fact-finding mechanisms, sanctions and international (and hybrid) legal mechanisms. There appears significant scope for the Council to deploy these tools, although present geopolitical tensions make this difficult in some situations. Members can also press for fact-finding mechanisms via other channels.
Recognising the critical role of civil society in promoting and implementing transitional justice initiatives, the Council should itself continue to engage with civil society actors and encourage the UN and national authorities to engage with local populations and communicate transitional justice goals. Hearing directly from victims of human rights violations and violations of international humanitarian law is important to Council members’ understanding of transitional justice in different settings. At the same time, mitigating the risk of reprisals against such individuals is essential.
Crucial to optimal Council engagement is high-quality information, analysis and recommendations on transitional justice from the UN Secretariat (and where relevant agencies, funds and programmes), and, not least in transition contexts, strong interagency coordination and cooperation at both field and headquarters levels.