No 4250 Politorbis Zeitschrift zur Aussenpolitik www.eda.admin.ch/politorbis Revue de politique étrangère Rivista di politica estera Dealing with the Past 3 / 2010 Contact: Federal Department of Foreign Affairs FDFA Directorate of Political Affairs DP Political Affairs Secretariat POLS Politorbis Bernastrasse 28 3003 Bern Phone: + 41 31 325 81 52 Fax: + 41 31 324 38 39 mail to: [email protected] www.eda.admin.ch/politorbis Die Texte werden normalerweise in der Sprache der Verfasser gedruckt. Der Inhalt muss nicht zwingend mit der Meinung des EDA übereinstimmen. En principe, les articles sont publiés dans la langue de travail de leurs auteurs. Le contenu ne reflète pas nécessairement la position du DFAE. The articles are published usually in the language in which they were written. The contents do not necessarily reflect the views of the FDFA. Politorbis Zeitschrift zur Aussenpolitik Revue de politique étrangère Rivista di politica estera N°50 3/2010 Table of Contents Preface Mô Bleeker 7 Part I: A Holistic Approach to Dealing with the Past A Conceptual Framework for Dealing with the Past Jonathan Sisson 11 A normative conception of Transitional Justice Pablo de Greiff 17 The right to know: a key factor in combating impunity Mô Bleeker 31 Rule of law and international, national justice mechanisms Paul Seils 41 Reparation programs: Patterns, Tendencies, and Challenges Pablo de Greiff 53 The role of Security Sector Reform in Dealing with the Past Tim Murithi 65 Table of Contents Part II: The Challenge of Implementation Dealing with the Past in peace mediation Mô Bleeker 71 Jonathan Sisson Pursuing Peace in an Era of International Justice Sara Darehshori 83 Transitional Justice and Conflict Transformation in Conversation Undine Whande-Kayser 97 Stephanie Schell-Faucon Reflection on the role of the victims during transitional justice Katya Salazar 111 processes in Latin America Maria Clara Galvis Archives against Amnesia Trudy Peterson 123 Business in armed conflict zones: how to avoid complicity and Salil Tripathi 131 comply with international standards Masculinity and Transitional Justice: An Exploratory Essay Brandon Hamber 143 The application of Forensic anthropology to the investigation Fonderbrider Luis 155 into cases of political violence Dealing with the past: The forensic-led approach to the missing Valérie Brasey 161 persons issue in Kosovo Table of Contents Part III: The Role of External Actors in Dealing with the Past: Lessons learned from Swiss experiences A Holistic Approach to Dealing with the Past in the Balkans Jonathan Sisson 171 West and Central Africa : an African voice on Dealing with the Carole Mottet 177 Past Dealing with the Past in DRC: the path followed? Dieudonné Diku 181 Mpongola Challenges in implementing the peace agreement in Nepal: Lisa Ibscher 185 Dealing with the Impasse Dealing with the Past in Nepal: “More haste less speed”? Markus Heiniger 189 Switzerland, the Third Reich, Apartheid, Remembrance and Marc Perrenoud 193 Historical Research. Certainties, Questions, Controversies and Work on the Past Preface This issue of Politorbis is dedicated to François Bergier and all the righteous men and women around the world. It is a great pleasure for me to introduce this issue of of the individual, and his material and moral Politorbis, devoted to the topic of dealing with the well-being.”1 Guissé insisted on the interdependence past. of civil and political rights on the one hand, and on economic, social and cultural rights on the other, Switzerland, with its strong commitment to the and emphasised the difficulties experienced by development of international justice, made a decisive some states in “trying to reconcile the objectives of contribution to the creation of the Rome Statute and planned material development with the protection to the establishment of the International Criminal of human rights”. Court (ICC). Furthermore, Switzerland is also aware of the additional concerted effort still needed in the Some months later, in October 1997, Joinet presented struggle against impunity; it’s dedication to the work his report on the “Question of the Impunity of of dealing with the past, and to combating impunity, Perpetrators of Human Rights Violations (civil and is based on this awareness. political)” in which he set out the “general economy of the aforesaid rights and its foundation with Impunity is in fact very difficult to combat. Hard to reference to the rights of victims regarded as being grasp and restrain, as it is generally combined with subject to the law: a) the victim’s right to know; b) other problems such as structural exclusion, unequal the victim’s right to justice; c) the victim’s right to development, organised crime and corruption. As compensation. For preventive purposes, these rights a result, instability and poor governance become are supplemented by a series of measures intended the rule, violence spreads, preventing a functional to ensure that violations are not repeated.” The democracy and hindering the establishment of the rights are combined with the duties of States.2 rule of law. On 18 February 2005, Mrs. Diana Ohrentlicher The fight against impunity has been the subject presented her independent expert’s report updating of many United Nations reports and resolutions, the Set of Principles to Combat Impunity.3 In and thus it may be useful to recall some important her introduction, Ohrentlicher showed how milestones of its normativ recent history. The first the “principles” approved in 1997 had already succinct preliminary report on “The Impunity of considerably influenced strategies for combating Perpetrators of Violations of Economic, Social and impunity. She pointed out the need to adapt these Cultural Rights” was presented in 1994 to the Sub- principles, taking into account “recent developments Commission on Human Rights. The Commission in in international law and practice, including turn decided to consider the matter in greater depth and to divide the study into two parts. Mr. Louis 1 E/CN.4/Sub.2/1997/8, 27 June 1997: The Realisation of Joinet was asked to report on those aspects relating Economic, Social and Cultural rights, Final Report, Question to violations of civil and political rights and Mr. El of the Impunity of Perpetrators of Human Rights Violations, Hadji Guissé on matters pertaining to economic, (economic, social and cultural), prepared by Mr. El Hadji social and cultural rights. Guissé, special rapporteur, pursuant to Sub-Committee Reso- lution 1996/24, 2 E/CN.4/Sub.2/1997/20/Rev.1. The Administration of In June 1997, El Hadji Guissé published his Justice and the Human Rights of Detainees, Question of “Final Report on the Question of the Impunity of the impunity of perpetrators of human rights violations Perpetrators of Human Rights Violations (economic, (civil and political), Final revised report prepared by Mr. social and cultural)”. Its preamble insisted on L. Joinet, pursuant to Sub-Commission Decision 1996/119. The completed study comprises documents E/CN.4/ the global dimension of human rights by stating: Sub.2/1993/6, E/CN.4/Sub.2/1994/11 and Corr.1, E/CN.4/ “The concept of human rights is political and Sub.2/1995/18 and E/CN.4/Sub.2/1997/20. economic, embracing the security and protection 3 E/CN.4/2005/102, 18 February 2005. Politorbis Nr. 50 - 3 / 2010 PREFACE international jurisprudence and State practice, as been given to addressing the fight against impunity well as other considerations specified in Resolution in peace agreements, with the process that lead to 2004/72”. Ohrentlicher also stressed that: “it may the publication of “Dealing with the Past in Peace be useful to reiterate that these principles are not Mediation”, in cooperation with the Mediation legal standards in the strict sense, but guiding Support Unit of the Department of Political Affairs principles”.5 in the United Nations .10 To this brief and very incomplete summary, let us In addition, the link between prevention of genocide add that the Secretary General of the United Nations and mass atrocities and struggle against impunity published a report in 2004 on “The Rule of Law and became crucial. This has led the FDFA together with Transnational Justice in Conflict and Post-conflict Argentina, Tanzania and other strategic partners, Societies”. It established the term transitional justice to the initiation of a series of regional forums on in this context and defined it as follows: “Transitional genocide prevention11. justice (..) comprises the full range of processes and mechanisms associated with a society’s attempts This issue of Politorbis provides an opportunity for to come to terms with a legacy of large-scale past reviewing our thoughts and practice in this field. abuses, in order to ensure accountability, serve justice The first part of this issue reflects the present state and achieve reconciliation. These may include both of norms and practice in the fight against impunity. judicial and non-judicial mechanisms, with differing Despite the indisputable progress, it is clear that levels of international involvement (or none at all) many gaps need to be filled, and significant issues and individual prosecutions, reparations, truth- still need to be tackled. seeking, institutional reform, vetting and dismissals, or a combination thereof.” All too often, for example, holistic strategies that should be based on concerted and shared If the Federal Department of Foreign Affairs, assessment are missing, links between the different FDFA, has decided to give greater emphasis to areas and measures for dealing with the past are the issue of combating impunity in the context of not established. At a time when the era of hybrid human security strategies, it is because real and or special international tribunals is drawing to a significant difficulties persist for which neither the close and the question of new local institutions or creation of the ICC nor international tribunals have initiatives for combating impunity is inevitably provided a full and final solution.