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58Working Paper / Documento de trabajoJune 2008 Working Paper / Documento

European efforts inTransitional Justice

Mara Avello

June 2008

Mara Avello works as an international consultant in the area of institutional development, European law and

human rights for the European Union and other international organisations. She has also worked as Human Rights

Adviser for the Organisation for Security and Cooperation in Europe (OSCE) and for the European Union in Kosovo

and Macedonia (Fyrom). She holds a Law Degree from Oviedo University, an M.A in Human Rights from the

Complutense University (Madrid) and M.A in European Law and Politics from the Institute of Higher European

Studies (Strasbourg).


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Cover photo: Juan Veijdag, AFP/Getty Images

Fundacin para las Relaciones Internacionales y el Dilogo Exterior (FRIDE) 2007.Goya, 5-7, Pasaje 2. 28001 Madrid SPAIN

Tel.: +34 912 44 47 40 Fax: +34 912 44 47 41

Email: [email protected]

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This document is the property of FRIDE. If you would like to copy, reprint or in any way reproduce all or any

part, you must request permission. The views expressed by the author do not necessarily reflect the opinion of

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Contents

What is Transitional Justice? 1

How does the European Union define the concept of Transitional Justice? 3

The basic legal framework 3

Policies towards third party countries: an opportunity? 3

The EUs internal policies: a challenge for Transitional Justice 8

Transitional Justice in other European organisations 9

The Council of Europe 9

The OECD 11

European states and Transitional Justice 12

The use of the principle of universal jurisdiction 12Strategy of conflict prevention / peace-keeping & peaceconsolidation strategies and Transitional Justice 13

Appendix 15

Promotion of Transitional Justice by means of research andthe organisation of seminars 15


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7/28European efforts in Transitional JusticeMara Avello

1

the last century, during the 1980s, the trials of

members of the military juntas of Greece and

Argentina contributed to the development of the idea

of Transitional Justice. The central idea was to

implement a universal concept of human rights and to

see justice done, principally with the victims in mind.

In the 1980s, a change in the concept took place, as it

went from being considered a strictly legal matter to

becoming a key component of democratisation

processes.This allowed for a broadening of the concept

of Transitional Justice which took shape in new

instruments like Truth Commissions (in Argentina,

Chile and South Africa, amongst others). At the same

time, wars in the Balkans and Rwanda, along with the

subsequent creation of international tribunals to deal

with the massive human rights violations which had

taken place, led to the incorporation of international

law in the field of Transitional Justice. 3 Finally various

ongoing peace processes since the middle of the 1980s

have included Transitional Justice as an important

element of peace-building and peacekeeping.

A report presented to the Security Council by the

Secretary General of the United Nations (UN) in 2004called on the international community to adopt a

strategy that would encompass a variety of approaches

to Transitional Justice integrating them and making

them complementary.The report holds that insisting on

purely judicial measures in post-conflict situations may

have the opposite effect to what is desired and may

prevent the realization of peace and stability. 4

The International Centre for Transitional Justice,or theICTJ, defines transitional justice as follows:

Transitional justice refers to a range of

approaches that societies undertake to reckon with

legacies of widespread or systematic human rights

abuse as they move from a period of violent

conflict or oppression towards peace, democracy,

* This section was published, along with some modificationsas aFRIDE Comment article, Maria Avello (2007):Transitional Justice as

seen from Europe, Comentario Fride , December 2007, www.fride.org1 Elster, Jon (2004). Closing the Books: Transitional Justice in Historical Perspective Cambridge, UK: Cambridge University Press

2 The Encyclopedia of Genocide and Crimes Against Humanity (Macmillan Reference USA, 2004), vol. 3, pp. 1045-1047

3 Leebaw, Bronwyn (2005): Transitional Justice, Conflict and

Democratic Change: International interventions and domesticreconciliation, http://www.apsanet.org/imgtest/TaskForceDiffIneqLebaw.pdf

4 Security Council, The Rule of law and transitional justice inconflict and post-conflict societies, S/2004/616.

The European Union must support the development

and use of instruments which allow for a globalisation

process where the fundamental principles of human

rights and the mechanisms to protect them are

respected. Transitional Justice can be one of them.

Does Europe have the adequate mechanisms and

policies in place?

Some European states carry out Transitional Justice

activities without clearly defining the concept. A

broad understanding of the concept is used and both

judicial and non-judicial measures are supported.

Transitional Justice is not dealt with as a specific

matter within Foreign Ministries, but instead is

normally included in peace consolidation or

development initiatives.

The establishment of mechanisms for emergencies,

many of which are supported by the EU or its

members, such as those contemplated under the Justice

Rapid Response initiative could enable the subsequent

development of Transitional Justice strategies.

There has been growing interest in the last two years

in the concept of Transitional This can be seen in the

number of seminars and conferences held on thematter.

What is TransitionalJustice?*

The Nuremburg and Tokyo trials after the SecondWorld War are widely considered to be the origin of the

concept of Transitional Justice in its current form. 1

However, there were probably certain forms of

Transitional Justice before, for example in Athens after

it was defeated by Sparta in the year 404 BC and the

subsequent restoration of democracy in 403 BC. 2 In


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2

the rule of law, and respect for individual and

collective rights.

In making such a transition, societies must confront

the painful legacy, or burden, of the past in order to

achieve a holistic sense of justice for all citizens, to

establish or renew civic trust, to reconcile people and

communities, and to prevent future abuses.A variety of

approaches to transitional justice are available that

can help wounded societies start anew.

These approaches are both judicial and non-judicial,

and they seek to encompass broadly the various

dimensions of justice that can heal wounds and

contribute to social reconstruction. 5

5 Web page of the International Centre of Transitional Justice,subsection What is Transitional Justice? 2004.http://www.ictj.org/es/tj/

This definition implies that transitional justice can

function as an instrument to bring about both

reconciliation and justice between two opposing sides

after a conflict, as well as to guarantee the

development of lasting peace and democracy.

The different strategies available can be grouped into

various categories, depending on the objective: justice,

truth, the rehabilitation of victims, institutional reform,

forgetting or memory. 6 Some of the principal

measures that are normally adopted are:

Judicial trials, whether national or international, or

through special courts (with national and

international legal experts), as well as the

Chart based on Gloppen, Siri (2002); Reconciliation and Democratisation: Outlining the Research Field, Chr. Michelsen Institute, Development Studies and Human Rights .

6 Gloppen, Siri; Reconciliation and Democratisation: Outlining theResearch Field, Chr. Michelsen Institute Development Studies and Human Rights , 2002.http://www.cmi.no/publications/file/?781=reconciliation-and-democratisation


9/28European efforts in Transitional JusticeMara Avello

3

mechanisms of international justice and civil and

criminal trials in foreign courts;

The mechanisms of traditional justice (such as the

now familiar gacaca in Rwanda, with a firm base in

the recognition of guilt and the search for

forgiveness, which aid social reconciliation);

Truth commissions;

Background checks with the public administration

(vetting) ;

Reparations;

Amnesty;

Monuments and commemorations;

Demobilisation, Disarmament and Reintegration

(DDR).

How does theEuropean Union

define the concept of

Transitional Justice?

The basic legal frameworkThe European Union (EU) establishes the framework

of Transitional Justice through a variety of sources and

legal texts. However, the majority of references to

Transitional Justice are found in declarations, reports

and consensus documents.

The EU is structured on three pillars with different

remits as defined in the Maastricht Treaty and the

treaty of the European Union, its constitutional basis. 7

Although these treaties do not make explicit reference

to Transitional Justice, several of their articles provide

a legal framework in which we can situate the concept.

For example:

1. Article 177.2 of The Maastricht Treaty specifies

that European policy in the area of development

cooperation will contribute to the general objective

of development and the consolidation of democracy

and the rule of law, as well as respect for human

rights and fundamental liberties. 8

2. Article 11.1 of the EU Treaty, the legal basis for

Common Foreign and Security Policy (CFSP),

establishes democracy, the rule of law and respect

for human rights and fundamental liberties as

priorities. 9

3. Article 17.2 of the Treaty describes the content of

CFSP and the humanitarian and rescue tasks,

peacekeeping tasks, and tasks of combat forces in

crisis management, including peacemaking. 10 This

last aspect is relevant for Transitional Justice

because it is normally applied to states in crisis or in

a process of re-establishing peace.

To date, within legal sources, there is no precise

definition of Transitional Justice nor do the constitutive

treaties make any specific reference to Transitional

Justice as an aspect to be carried out within EU policystrands. In fact, only a general framework for action is

established, in which Transitional Justice could be an

element to be included in policies which affect third

party countries, such as the development policy or the

Common Foreign and Security Policy (CFSP). However,

given the institutional complexities of the European

Union and the actions of member states both inside and

outside its structure, this does not necessarily mean there

are no references or political activities in this regard.

Policy towards third party

countries: an opportunity?

In spite of the absence of a clearly defined concept,

there are instruments within the European Union

which allow for the implementation of Transitional

7 Pillar I, the community pillar, which includes most commonpolicies; decisions are taken using the community method(Commission/Council/Parliament). Pillar II, CFSP, is decided by theCouncil. Pillar III, Police and Judicial Cooperation in Criminal Matters,is decided by the Council. http://europa.eu/abc/eurojargon/index_es.htm

8 http://eur-lex.europa.eu/LexUriServ/site/es/oj/2006/ce321/ ce32120061229es00010331.pdf

9 Ibidem note 6.10 Ibidem note 6.


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Justice,both in the framework of the Development and

Cooperation Policy and the Common Foreign and

Security Policy (CFSP).

Cooperation and Development Policy

The constitutive treaties establish a general framework

for action. And in the same way, so do certain official

texts such as the European Consensus on

Development, jointly adopted by the Council of the

European Union and by individual member states,

which, in effect, is a joint development policy. 11 This

document states that the main objective of the

European development strategy is the eradication of

poverty, in line with the UN Millennium Goals.

One of the common principles is that of addressing

state fragility. A related objective is capacity-building

for conflict prevention, by building viable institutions

and reforming existing institutions, strengthening the

rule of law and addressing corruption. 12 In the case of

states in transition, the EU will link together aid for

emergency relief, reconstruction and long-term

development. That requires the application of

integration strategies that have institution building astheir ultimate goal.

At the level of EU legislation, two regulations exist in

the Development Cooperation Policy where explicit

reference is made to funding aspects of Transitional

Justice:

1. Regulation n 1889/2006 of the European

Parliament and Council, from December 20, 2006which established a financial instrument for the

promotion of global democracy and human rights; 13

2.The European Parliament and Council regulation of

November 15, 2006 which established an

Instrument for Stability. 14

Both regulations are the result of the European

Commissions efforts to rationalise and lend coherence to

foreign aid. These same efforts have also simplified the

numerous instruments for foreign aid,reducing them to six. 15

In both regulations, Transitional Justice is mentioned

as one of the lines of work to be supported. In Article

2, in the democracy and human rights programme,EU

support seeks to:

ii) strengthen the rule of law, promoting the

independence of the judiciary, encouraging and

evaluating legal and institutional reforms, and

promoting access to justice;

iii) promote and strengthen the International

Criminal Court, ad-hoc international criminal

tribunals and the processes of transitional justice

and truth and reconciliation mechanisms;

iv) support reforms to achieve effective and

transparent democratic accountability.

The Instrument for Stability also makes funding available

to support international criminal tribunals and ad-hoc

national tribunals, truth and reconciliation commissions,and mechanisms for the legal settlement of human rights

claims and the assertion and adjudication of property

rights, established in accordance with international

human rights and rule of law standards. It goes on to

include support for civilian measures related to the

demobilisation and reintegration of former combatants

into civil society, and where appropriate their

repatriation, as well as measures to address the situation

of child soldiers and female combatants.

The inclusion of Demobilisation, Disarmament and

Reintegration (DDR) programmes is noteworthy, since

these issues have not always been linked to Transitional

Justice itself. However, an outlook which considers both

Transitional Justice and DDR programmes during peace

negotiations contributes more effectively to stability.

The Commissions programmes are aimed

fundamentally at funding Civil Society actors (NGOs),

Working Paper 58

4

11 http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/c_046/ c_04620060224en00010019.pdf

12 European Programme for the Prevention of Violent Conflicts,European Council, Gothenburg, June 2001.

13 http://www.delarg.ec.europa.eu/es/novedades/documentos/ 2006-1889%20Reglamento%20DDHH.pdf

14 http://register.consilium.europa.eu/pdf/es/06/st03/st03634-re01.es06.pdf

15 http://ec.europa.eu/external_relations/human_rights/doc/ 2005com_0324_es.pdf


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implementation of the ESDP in the face of a crisis

which might affect the interests of European defense

policy. 20 Up to the present, the main objective of each

mission is establishing peace and stability in a region

through the support of the establishment of democratic

forces of law and order, a decisive factor for the rule of

law.This is how it is established in the Joint Action,

the legal basis for each mission. 21

These missions tend to prioritise public order over legal

matters or the establishment of the rule of law. However,

justice has also been an important objective of some

missions under the ESDP. The Political and Security

Committee 22 has drawn up a detailed concept note of

what form crisis management missions should take in

relation to the rule of law, as well as what activities the

EU can encourage. 23 This concept note states that these

can either take the form of substitution (executive

functions) or strengthening of the rule of law. Whilst

Transitional Justice is not expressly mentioned, the

concept note, in the context of the rule of law, does

mention facilitating the establishment of a sustainable

judicial and penitentiary system in line with the basic

principles of the rule of law and international standardsof human rights as one of the aims of any mission.

Some of the missions that included components geared to

strengthening the rule of law were EUPOL PROXIMA

and EUPAT in the Republic of Macedonia in the former

Yugoslavia, carried out between 2004 and 2006. 24 In

both of these missions,the aim was to monitor and assess

the functioning of the Macedonian police force in the

context of rule of law at the level of the Ministry ofInternal Affairs and at the level of district police.

To this end, the role of Law Enforcement Monitor was

created; its function was to facilitate ties between the

police force and criminal justice, a new role and one

with a fairly wide scope. However, members of the force

were few and far between and its mandate was

somewhat vague. A more clearly defined role, perhaps

including specific aspects of Transitional Justice such

as support of the International Criminal Tribune for the

former Yugoslavia, or a monitoring of the justice

system itself in relation to existing ethnic minorities

would have contributed significantly to improving the

targeting and efficiency of this effort.

Only two missions, the EUJUST THEMIS mission in

Georgia, which has now concluded, and the mission in

Iraq,which is ongoing,have been aimed specifically at the

rule of law,and neither of these clearly reflects aspects of

Transitional Justice. 25 In the first case,the main objective

was to support the Georgian authorities in their reform

of the most urgent aspects of their criminal justice

system. For a year, efforts centered on providing advice to

the Justice Ministry without tackling the matter of

Transitional Justice head on, even though this would have

helped form the basis for the criminal justice system.

The main aim of the EUJUST LEX mission in Iraq, on

the other hand, is the training of senior level civil

servants as well as technical experts with the skills

required to manage and investigate criminal activities. 26

Due to poor security conditions in Iraq, these training

courses take place in Brussels. Once more, Transitional

Justice matters are conspicuous by their absence, the

focus being on institutional development.

It is worth underlining that, while these missions have

not expressly included aspects of Transitional Justice,

in practice, they have provided advice and support for

Transitional Justice strategies.

In this way, the EU has supported the detention of suspects

accused by international war tribunals, the reform of state

security apparatus,vetting in the public administration and

Working Paper 58

6

20 Council of the EU, Civilian Headline Goal 2008 , 15863/04, 7thof December 2004.

21 These common actions are instruments in the framework of theCFSP which establish the legal basis of the Councils policy;http://europa.eu/scadplus/glossary/common_position_cfsp_es.htm. Fora list of all the common positions which make up the legal basis of theCFSP missions, see http://www.consilium.europa.eu/cms3_fo/ showPage.asp?id=268&lang=EN&mode=g.

22 http://europa.eu/scadplus/leg/es/lvb/r00005.htm23 Council of the EU, Comprehensive EU concept for Missions in the Field of Rule of Law in Crisis Management ,9792/03,26 th of May 2003.

24 http://www.eur-lex.europa.eu/LexUriServ/site/en/oj/2004/ l_348/l_34820041124en00400044.pdf

25 http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=701&lang=en

26 http://eur-lex.europa.eu/LexUriServ/site/en/oj/2005/l_062/ l_06220050309en00370041.pdf


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the transformation of justice and security structures.

Afghanistan and Kosovo are both examples of the tendency

to implement Transitional Justice indirectly.

In the case of Kosovo it seems unlikely that, after its

declaration of independence, Transitional Justice

strategies will go beyond support for the work carried

out by the International Tribunal for the former

Yugoslavia. 27 However, the EU will have an important

part to play in the future supervision of independence

in Kosovo, a situation which may lead to the

implementation of some Transitional Justice strategies

to help lay the foundation for reconciliation between

the Albanian majority and the Serb minority, especially

as a form of guarantee for the Serb community.

In that sense, the use of the co-location principle, that

of placing international judges deployed as part of the

EU mission alongside Albanian-Kosovar or Serb-

Kosovar judges, may make a positive contribution to

the handling of sensitive cases and so allow

Transitional Justice activities to be developed. 28

Transitional Justice and the European Security and Defense Policy (ESDP)

The missions in the framework of the ESDP do not

include specific strategies for Transitional Justice,

either in their initial conception or in their

implementation and sustainability. Nevertheless, such

strategies are applied as missions with a policing

component and those concerned with the

implementation of the rule of law unfold.

This application of the instruments of Transitional

Justice without its express recognition has made it

difficult to obtain optimum results in efforts to achieve

peace and stability. Recently, steps have been taken to

further develop the concept of Transitional Justice in

the framework of missions under the ESDP. The

Political and Security Committee 29 held a seminar in

2006 which led to the drafting of a specific document

on Transitional Justice with recommendations on how

to include it in the context of the ESDP. 30 Some

recommendations worth highlighting are:

UN guidelines should be taken into account;

A flexible understanding of Transitional Justice is

recognised, including judicial and non-judicial

measures (for example,Truth Commissions);

There is a need to explore how aspects of Transitional

Justice will be tied to the planning of ESDP

missions, especially with regards to exit strategy;

Specific areas where the concept can be developed

were identified:

planning the missions.

bringing together the necessary technical expertise.

including Transitional Justice training in the

training courses for personnel of both civilian crisis

management and rapid response teams.

supporting peaces processes through special

representatives.

Another positive step towards an enhanced definitionand implementation of Transitional Justice during

crisis management was the drafting of the EU Concept

Note for support to Disarmament, Demobilisation and

Reintegration (DDR). 31 Here, the need to collaborate

with existing international tribunals is recognised in a

specific way. At the same time, it stresses the fight

against impunity, and child soldiers are mentioned as

victims of conflict, as recognised in international

human rights instruments.

The complementarity of the Development Policy and

the CFSP / ESDP: a real possibility?

Given the texts of the treaties and the regulations

previously mentioned, both should be complementary.

According to article 27 of the EU Treaty, The

European efforts in Transitional JusticeMara Avello

7

27 Telephone interview by the author with a member of the EUPlanning Team, June 2007.

28 According to this principle, an international judge is assigned toa local counterpart, in order to guide and advise, without replacing, thelocal judge.This method has already been used in other EU missions inthe context of the CFSP, for example, in EUPOL-PROXIMA, in theRepublic of Macedonia in the former Yugoslavia.

29 http://europa.eu/scadplus/leg/es/lvb/r00005.htm30 Council of the EU, 10674/06, 19th of June 2006.31

EU Concept for Support to Disarmament, Demobilisation and Reintegration (DDR), passed by the European Commission on the 14th

of December 2006 and by the Council of the EU on the 11 th ofDecember 2006.

http://www.eplo.org/documents/EU_Joint_concept_DDR.pdf


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Conclusions

Transitional Justice in its various forms is de

facto part of the programme and policy of the

EU.This multiplicity of forms is not the result of

complementarity but rather comes about due to

the absence of a clear concept of Transitional

Justice at the European level. This does not

prevent the development of concrete action in

this area.

The Development Policy (Commission) and the

Common Foreign Security Policy / European

Security and Defense Policy (Council) are

complementary. The division of both policies

between two pillars makes it difficult to devise a

long-term approach on the matter of Transitional

Justice, from the moment of a post-conflict

intervention through to the development phase.

In the CFSP and especially in the ESDP, a

concept of Transitional Justice is being developedwhich could be introduced in the planning and

exit strategies of missions, as well as in training of

civil response team personnel. There may be an

opportunity to apply aspects of Transitional

Justice in the future EU mission under the ESDP

in Kosovo (mixed tribunals already in existence

under the administration of the United Nations),

where establishing the rule of law is an important

objective (the inclusion of more than 200 judgesis being considered), as well as in the mission in

Afghanistan, in support of law and order.

It would seem necessary to include the fight

against impunity in cases of grave international

crimes as a key aspect of the creation of a

European space of security and justice. The

reform process of the current Hague Programme

could provide an opportunity for that, making it

complementary to the Development Policy and

the CFSP/ESDP.

Transitional Justicein other Europeanorganisations

The Council of Europe

A general approach to aspects of Transitional Justice

The Council of Europe was created in 1949 with the

aim of protecting and promoting human rights,

democracy, and the rule of law in the European

continent. 37 This mandate was revised and broadened

in the Warsaw Declaration, the outcome of the Third

Summit of heads of state of the Council of Europe. 38

This Declaration mentions the need to create a new

framework for cooperation and interaction between the

Council of Europe and the EU, especially in matters of

common interest, such as human rights, democracy and

the rule of law.

The Council of Europe has not specifically defined the

concept of Transitional Justice. However, this has not

prevented the Council from consistently working for

the promotion of human rights by administering justice

in cases of serious human rights abuses. Transitional

Justice is addressed generally and non-systematically

within the different administrative bodies of the

Council of Europe where it is seen as a human rights

issue or as a part of International Law.It is possible topoint to various ways that Transitional Justice appears

at different administrative levels within the Council of

Europe:

The Parliamentary Assembly (PACE) and its different

committees. On numerous occasions, the Political

Affairs Committee and The Committee on Legal

Affairs & Human Rights have referred to the human

rights situation in various parts of the continent and


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37 http://www.coe.int/T/e/Com/about_coe/ 38 http://www.coe.int/t/dcr/summit/20050517_decl_varsovie_en.asp


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consist of advising the EU on legal aspects, developing

guidelines based on its own resolutions and

recommendations, and ensuring a coherent

implementation of Transitional Justice matters in both

organisations.

The OECD

The Organisation of Economic Cooperation and

Development was founded in 1969 with the objective

of serving as a forum for consultation and coordination

on matters of economic development and the process

of transformation to a market economy among

member states, including those outside of Europe. 47 It

is an international organisation without geographic

limitations, currently made up of thirty states with

market economies and democracies.

Given its capacity for mutual exchange, consultation

and research, it is useful to observe the manner in

which it deals with Transitional Justice issues.The work

of the Development Cooperation Directorate (DCD) is

especially relevant here since its members together

account for 90% of aid in the international system.Guidelines which are discussed and subsequently

approved in this forum go on to shape development

policies and programmes throughout the world.

The OECD has considered the link between

development and conflict, studying so-called "fragile

states" and ways to intervene effectively in them, either

in a post-conflict situation or when there is a clear

need for political and socioeconomic reform. TheOECD recommends that donor states devise strategies

together to reform security and justice institutions as a

guarantee of stability. 48 One of the recommendations

specifically refers to Transitional Justice.

The OECD supports the implementation of Transitional

Justice as part of the reconstruction of national justice

systems and the enhancement of their capacities in

post-conflict reconstruction activities. This can also

take the form of non-state justice systems, as in the

case of Rwanda with the Gacaca, or local tribunals,

which dealt with the matter of the reintegration of

many genocide perpetrators in 1994. However, in most

instances, OECD funds have been focused on the

creation of international or special tribunals, leaving

scant resources for non-state justice systems.

This state-centric approach to Transitional Justice is

underscored by its location as part of the security

sector reform program. In an OECD guide on

supporting the reform of state security apparatus, the

use of Transitional Justice strategies is

recommended. 49 The goal is to transform an abusive

state security apparatus into one which respects and

protects human rights in a sustainable way. For that to

happen, the OECD bases its Transitional Justice

strategy on three fundamental principles:

Integrity : the reform of a countrys security apparatus

should not be limited to the reconstruction of its

capacities but instead should deal with the matter of

its integrity so that abuses of the past are not repeated.At the same time, measures should be put into place to

maintain a healthy distance between state security and

the public administration, as well as reconciliation

programmes between divided communities and

reparation for the victims.

Legitimacy : the need to reestablish confidence in a

countrys security apparatus after a past rife with

abuse. The previously mentioned steps should beaccompanied by others of symbolic importance, such

as public apologies, commemorations or a change of

the emblem associated with state oppression. In

addition, representatives of different sectors of society

who will be served by the forces of law and order

should be integrated.

Empowerment: civil society should be made aware of

its role as an essential component of the justice


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47 http://www.oecd.org/document/18/0,2340,en_2649_201185_2068050_1_1_1_1,00.html

48 OEDC, Enhancing Security and Justice Service Delivery , May2007. http://www.oecd.org/dataoecd/27/13/38434642.pdf

49 OECD, DAC Handbook on SSR: Supporting Security and Justice , April 2007. http://www.oecd.org/dataoecd/43/25/38406485.pdf


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system, with rights and duties to give the public

institutions real meaning. Measures such as

information campaigns, surveys of citizens to find out

their opinions regarding the needs of the security and

justice system, or training of NGOs to monitor the

system are all proposed.

The OECD takes an integrated approach to the concept

of Transitional Justice as a key factor in the

development of post-conflict and/or fragile states

which should be carried out with local traditions and

customs in mind non-state justice and which clearly

complements the reform of the state security

apparatus.

Conclusions

Transitional Justice in its various forms, judicial

or non-judicial, is part of the development

strategy of the OECD in matters of security and

justice. This is of great importance given the

nature of that forum, which in the DevelopmentCooperation Directorate brings together the

countries which account for 90% of

humanitarian aid in the world. This inclusion is

very recent. It will be important to follow up on

how the inclusion of this concept is translated

into the different security sector reform

programmes.

The Council of Europe does not make explicitreference to Transitional Justice in its

programmes. However, it has developed lines of

work that relate to the administration of justice.

It is an organisation with the capacity to carry

out Transitional Justice measures, developing the

concept and application mechanisms in the EU

context.

European states andTransitional Justice

Besides carrying out political and development

programmes through Europe-wide institutions,

member states also have their own national policies.

Several types of work can be identified at this level:

Use of judicial measures, especially the use of the

principle of universal jurisdiction and their own

courts;

Development of Transitional Justice measures within

conflict prevention / peace keeping and consolidation

strategies;

Promotion of Transitional Justice through research

and the organisation of seminars.

The responsible governmental departments usually

include the Ministry of Foreign Affairs and the

Ministry of Development and Cooperation in Europe.

States such as Switzerland, Norway, Sweden, and theNetherlands combine both branches within the

Ministry of Foreign Affairs. In the case of the United

Kingdom, its development agency has far reaching

powers and is responsible for advancing reconstruction

and peacekeeping, in cooperation with the Ministry of

Defense and the Foreign Office and through forms of

association which boost cooperation. 50

The use of the principle ofuniversal jurisdiction

In principle, the European states defer to EU action in

the field of universal jurisdiction. However, there are

aspects which are individually characteristic of each

member state.

Universal jurisdiction establishes the capacity of

national courts to judge crimes which constitute a

Working Paper 58

12

50 The Global Conflict Prevention Tool.http://www.dfid.gov.uk/pubs/files/global-conflict-prevention-pool.pdf


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serious abuse of human rights, independently of where

they were committed or if there were national victims.

This principle, almost unheard of until the case of the

Chilean General Augusto Pinochet in 1998, has gained

prominence in the continent in recent years. While this

authority exists in the courts of each state, some

countries have legislation and tribunals that are more

conducive to such actions than others. This kind of

jurisdiction is only applied in exceptional cases, when

the crimes are especially serious and when the country

where they were committed does not itself have the

capacity to judge the accused.

Seven European states have made use of universal

jurisdiction in recent years: Denmark, France, Spain,

Germany, the United Kingdom, Belgium and the

Netherlands.Switzerland can be added to the list in the

case against a Rwandan citizen. There are numerous

obstacles to be overcome in the application of universal

jurisdiction, and the EU should become more involved

if universal jurisdiction is to become another

instrument of Transitional Justice, on occasions that

warrant its use.

The EU should reinforce aspects of its justice and

home affairs policies, drafting an action plan to be

used in such cases, thereby facilitating interaction and

a greater coherence between member states in the fight

against grave human rights violations and the related

impunity.

Conflict prevention / peacekeeping

and peace consolidation strategies

and Transitional Justice

The Council of Europe and the OECD look at

Transitional Justice mechanisms from different

perspectives. Normally, they are connected to

peacekeeping policies, which have increasingly become

complex missions, containing integrated elements of

peacebuilding and development.

Peace mission mandates do not tend to specify

anything regarding Transitional Justice, nor is there a

consistent application of one type of strategy or

another when it is specified. In general, there is some

mention of the need to include elements of Transitional

Justice in processes of peace consolidation, such as in

the case of Norway, which specifically mentions the

theme in a strategy document. 51 In this document, both

judicial and non-judicial measures are proposed (for

example, truth commissions).

In the particularly relevant case of Norway, there is

also a mention of the need for Transitional Justice from

a human rights perspective within the development

context.That is also the case with the United Kingdom.

Its security and development strategy 52 reflects key

elements of its policies for development and

intervention. 53 Poverty reduction is the overriding aim.

This strategy was initiated in 1997, continued in 2000

and once again was reinforced in 2002 with the

International Development Act, a legislative

instrument.

Human rights are considered an area in which defence

and development departments should work closely

together in order to avoid abuses during a conflict and,in the post-conflict phase, in the application of justice

systems and security. 54 This aspect is developed

extensively in the UK Foreign Offices Human Rights

Strategy where the improvement of criminal justice

systems is considered a centrepiece for action on the


13

51 Peacebuilding: a development perspective.http://www.regjeringen.no/upload/kilde/ud/bro/2004/0012/ddd/pdf

v/221493-peace-engelsk.pdf

Judicial process and truth commissions. Norway is seeking tomobilise the broadest possible support for the International CriminalCourt. Norway will continue to support the international criminaltribunals for the Former Yugoslavia, Rwanda and Sierra Leone. Norwaywill continue to support truth commissions and programmes forinformation in conflict areas on important international judicialdecisions.

52 DFID, Fighting poverty to build a safer world. A strategy for security and development .http://www.dfid.gov.uk/pubs/files/securityforall.pdf

53 There are also other, more specific documents which link mattersof justice and security,focusing on the need to rebuild legal systems; forexample, Safety, security and access to justice; this document by theDevelopment Agency reflects a classic position of institution building: itaddresses the rebuilding / reform of the judicial system rather than

Transitional Justice. http://www.gsdrc.org/docs/open/SSAJ35.pdf54 Ibidem note 52; paragraph 43: Human rights is an important

area where the security and development communities need to worktogether more closely; for example, to tackle abuses during conflict andto establish post-conflict justice and security.


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The idea is to provide specialised personnel and other

resources to aid efforts of identification, collection and

storing of information relative to allegations of

genocide, war crimes and crimes against humanity. 64 In

unstable environments, the JRR seeks to prevent the

loss of evidence in cases of the above mentioned crimes

to enable victims to pursue justice when the

environment stabilises sufficiently to allow for this.

Working meetings have been held on the matter since

2004 65 , and a feasibility study of the concept has been

carried out. 66 The main idea is that the JRR would be

available when required by a state or an international

institution. The existence of personnel teams with

different specialties might allow for the subsequent

development of Transitional Justice strategies,

especially those of a judicial nature.

In November 2007, a meeting was held in New York

funded by Canada, Finland, Sierra Leone, Sweden and

the European Union. 67 There, various strategies were

agreed upon to enable the future application of JRR.

These included the design and implementation of a

pilot JRR initiative. This could result in an excellent

new mechanism for Transitional Justice.

Conclusions

Some European states carry out Transitional

Justice activities without clearly defining theconcept. A broad understanding of the concept is

used and both judicial and non-judicial measures

are supported.

Transitional Justice is not dealt with as a specific

matter within Foreign Ministries, but instead is

normally included in peace consolidation or

development initiatives.

The establishment of mechanisms for

emergencies, many of which are supported by the

EU or its members, such as those contemplated

under the Justice Rapid Response initiative could

enable the subsequent development of

Transitional Justice strategies.

There has been growing interest in the last two

years in the concept of Transitional Justice which

can be seen in the number of seminars and

conferences held on the matter.


15

64 Justice Rapid Response, Meeting in New York, March 2007.65 Five meetings to date and a feasibility study of the idea, Ibid

note 55.66

Justice Rapid Response, a feasibility study,h t tp : / /www.auswaer t iges-amt .de /d ip lo /en /Aussenpol i t ik / Voelkerrecht/IStGh/IStGH-JRRdownload.pdf

67 http://www.justicerapidresponse.org/jrr_new_york_november_2007.htm



16

Appendix

Promotion of Transitional Justiceby means of research and the

organisation of seminars

Some states have been exploring the concept of

Transitional Justice by supporting and participating in

related conferences and seminars. In April 2007,

Norway organised a conference, Truth and

Reconciliation Processes, which discussed national

reconciliation processes and the mechanisms needed to

support them.

For its part, the German Ministry of Cooperation and

Economic Development together with the Friedrich

Ebert Foundation 68 held a conference in February

2005 on reconciliation entitled From the assumptions

of the past to future cooperation: regional & global

reconciliation challenges. 69 The aim was to systemiseknowledge about states in crisis. Reconciliation was

understood to be an aspect of Transitional Justice.

During its conclusions, the conference made reference

to basic principles in applying Transitional Justice

measures, highlighting the need for a case-specific

approach, favouring the local populations ownership

of the process and sustaining a long-term strategy of

support.

Germany organised another international conference in

June 2007, in Nuremburg, specifically on the question

of Justice & Peace.The objective of this conference

was to highlight the apparent tension between justice

and peace in post-conflict situations. Participants

agreed to summarise existing recommendations in this

area to present them in the first quarter of 2008. 70

During the meeting, participants concluded that peace

and justice were not necessarily at odds with each

other.

In June 2007 Switzerland supported a conference in

Bogot, on Transitional Justice in Latin America

entitled The legacy of truth: the impact of Transitional

Justice in the construction of Latin American

democracy. 71

The creation of networks is also very useful. European

states collaborate in various joint initiatives, such as,

for example, the Reconciliation Resource Network

promoted by the International Institute for Democracyand Electoral Assistance (IDEA), Sweden, which has

been financed by the Swiss Foreign Affairs Ministry. 72

The aim of that network, established in early 2007, is

to promote the exchange of ideas to promote

reconciliation policies, bringing together both practical

and theoretical approaches.

70 http://www.peace-justice-conference.info/peace_and_justice.asp71 Information sent to the author by the Focal Point in Transitional

Justice in the Swiss Foreign Ministry.72 http://www.idea.int/rrn/

68 A German foundation dedicated to political debate on multiplesubjects, both national & international. http://www.fes.de/

69 http://www.gtz.de/de/dokumente/es-informe-general-reconciliacion.pdf


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18

28Promoting Democracy Backwards, Peter Burnell, November 200627Respuestas globales a amenazas globales. Seguridad sostenible para el siglo XXI, Chris Abbott, Paul

Rogers y John Sloboda, Septiembre de 200626When More is Less: Aiding Statebuilding in Afghanistan, Astri Suhrke, September 200625The Crisis in Timor-Leste: Restoring National Unity through State Institutions, Culture, and Civil Society,

Rebecca Engel, August 200624Misin de la ONU en la Repblica Democrtica del Congo: Imponer y consolidad la paz ms all de la

elecciones, Luis Peral, Julio de 200623Angola: Global Good Governance Also Needed, David Sogge, June 200622Recovering from Armed Conflict: Lessons Learned and Next Steps for Improved International Assistance,

Megan Burke, April 200621Democracy and Security in the Middle East, Richard Youngs, March 200620Defining Terrorism to Protect Human Rights, Ben Saul, February 200619Failing States or Failed States? The Role of Development Models: Collected Works; Martin Doornbos,

Susan Woodward, Silvia Roque, February 200618Facing the Victims in the Global Fight against Terrorism, Jessica Almqvist, January 200617Transition and Legitimacy in African States: The cases of Somalia and Uganda, Martin Doornbos,

December 200516The United Nations Responsibility towards Victims of Terrorist Acts, Irune Aguirrezabal Quijera,

November 200515Threats to Human Security: The Need for Action?, Luis Peral, October 200514Helping Castro? EU and US policies towards Cuba, Susanne Gratius, October 200513Alliance of Civilisations: International Security and Cosmopolitan Democracy, Kristina Kausch and Isaas

Barreada, October 200512Building a New Role for the United Nations: the Responsibility to Protect, Carlos Espsito and Jessica

Almqvist, September 200511Political Reform and the Prospects for Democratic Transition in the Gulf, Jill Crystal, July 200510Aggression, Crime of Aggression, Crime without Punishment, Antonio Remiro Brotns, June 2005

9Espaa y el Magreb durante el segundo mandato del Partido Popular. Un perodo excepcional, LauraFeli, Mayo de 2005

8EU instruments for conflict prevention, Javier Nio Prez, April 20057Contribucin espaola a la construccin de la paz. Razones y propuestas para la elaboracin de un Plan

de Accin, Luis Peral, Abril de 20056Spain and Morocco: Towards a Reform Agenda?, Richard Gillespie, April 20055Which Justice for Perpetrators of Acts of Terrorism? The Need for Guidelines, Jessica Almqvist, March 20054Reflexiones sobre la reforma del Servicio Exterior de Espaa, Carlos Espsito, Febrero de 20053Political Islam: Ready for Engagement?, Emad El-Din Shahin, February 20052Ten years of the Barcelona Process: A Model for Supporting Arab Reform?, Richard Youngs, January 20051A proposal for governance of the Gaza strip in the context of the announced Israeli withdrawal, CITPax,

an initiative of Shlomo Ben-Ami, November 2004

DOCUMENTOS DE TRABAJO


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f id g

Since 2004, when the UN Secretary General presented a report to the Security

Council recommending a new vision of Transitional Justice, with several integrated

and complementary foci, the concept of Transitional Justice has advanced in diverse

directions.

In the 1990s it went from being considered a purely legal question to one of the key

aspects in democratisation processes, thereby leading to new instruments such as

Truth Commissions. Likewise, the wars in the Balkans and Rwanda, together with

the subsequent creation of international tribunals to address the massive violations

of human rights which took place, led to the incorporation of international law in the

area of Transitional Justice. As a result of these events, the peace processes that

unfolded during the 1990s have developed essential tools for the construction and

maintenance of peace.

This FRIDE working paper analyses the diverse legislation and internationalorganisations that exist in the area of Transitional Justice, while also evaluating the

new initiatives and tools designed to confront the consequences of generalised and

systematic violations of human rights.

wp58 transitional justice eng sep08

Documents